Avoiding Ethical Pitfalls of Internet Marketing

Lawyers have begun turning to the internet more to market their practices, provide information, and communicate with clients. New York’s ethical rules1 with respect to lawyer advertising have undergone changes over the past few years, and some ethics opinions have been issued which may further clarify some of the obligations of lawyers when using these technologies. It is recommended that all lawyers fully familiarize themselves with the ethical rules, and particularly the recent rules with respect to lawyer advertising. This article discusses some of those rules, which may be unfamiliar to many practitioners.

The primary ethical obligations related to lawyer advertising (including lawyer websites) can be found in Rule 7.1, but several other rules also apply, including Rule 8.4(c), prohibiting conduct generally involving dishonesty, fraud, deceit or misrepresentation, and Rule 1.18 regarding duties to prospective clients, among others.

Responsibility for Others’ Actions
All lawyers must be mindful of the ethical rules, regardless of their position within the firm or their level of legal experience. Rule 5.2 governs the responsibilities of a subordinate lawyer, and specifically states in sub-part (a) that, “A lawyer is bound by these Rules notwithstanding that the lawyer acted at the direction of another person.” What many lawyers also do not realize is that lawyers who are partners in a law firm or in a managerial or supervisory role also have the obligation of ensuring that lawyers whom they supervise will comply with the ethical rules.2 Thus, where a lawyer directs another lawyer to act in a way that violates the rules, or where a lawyer in a supervisory or managerial role knows should have known of such conduct by a lawyer whom they supervise and fails to take reasonable remedial action, both lawyers will be considered to have violated the ethical rules.

Similarly, a lawyer with direct supervisory authority over the law firm’s staff or other non-lawyers may be considered to have violated the ethical rules if they direct a staff member to undertake conduct that would violate the rules, or if they knew of such conduct and failed to take remedial action, if they should have known of such conduct at a time when remedial action could have been taken to avoid or mitigate the consequences of the conduct.3

These rules come into play with lawyers who are beginning to more actively market their practices on the Internet, or to provide information about themselves, their firms or their practice areas on the Internet, not only on the lawyer’s own websites or blogs, but in legal directories, list serves and social media outlets as well.

Lawyers have begun to outsource some of their internet marketing, or to hire “search engine optimization” (SEO) experts to drive traffic to websites, website designers and developers to create websites and content for their internet marketing efforts, and other professionals to help them with social media. Lawyers must be aware of the actions performed on their behalf, and the ethical rules which govern them, as lawyers may be held accountable for the actions of those they retain to perform this work on behalf of the firm.

For example, Rule 7.1(g)(2) prohibits the use of meta tags or other hidden computer codes that, if displayed, would violate the Rules. A law firm who hires an SEO expert and does not supervise the meta tags being used on the site may be in danger of ethical violations. Rule 7.1(h) requires all advertisements to include the name, principal law office address and telephone number of the lawyer or firm. A lawyer whose website includes only a telephone number and email address would be in violation of the Rules.

Lawyer Websites
Last summer, the American Bar Association issued Formal Opinion 10-457 addressing lawyer websites.4 The opinion discusses several issues related to lawyer websites, including website content, visitor inquiries and disclaimers. Although the ABA opinion references the ABA Model Rules rather than New York’s rules of professional responsibility, the rules are substantially similar, if not identical in many cases, and lawyers should be guided by the cautions contained in the ABA opinion.

The ABA opinion acknowledges that, “Lawyer websites also can assist the public in understanding the law and in identifying when and how to obtain legal services.”5 But it is imperative for lawyers to understand that a lawyer or law firm website cannot be simply created and then ignored. Lawyers who post information on the internet must ensure that the information is current, accurate and not misleading. In order to avoid being misleading, a lawyer or law firm must keep their site up to date and must ensure that they include disclaimers that prevent creating unjustified expectations in the mind of the website visitor.6

For lawyers who have blogs or who post articles on their websites, it may be wise to date the post or article and post a notice that the legal information was accurate as of the date of the writing, but that the law changes frequently, and that readers should not rely on the online information, but rather that they should consult a lawyer who can discuss their specific factual situation. Outdated or inaccurate information should be removed.

New York Rule 7.1 specifically permits lawyers to develop websites which include biographical information about lawyers and the firm, information about practice areas, clients, matters and results obtained. Lawyers who include names of clients “regularly represented” in their websites or other advertising materials must have the client’s prior written consent for any such disclosure.7 Attorneys are prohibited from including “an endorsement of, or testimonial about, a lawyer or law firm from a client with respect to a matter still pending.”8 Although testimonials from former clients are permitted, those received from current clients on ongoing matters may not be used. Presumably, endorsements or testimonials from current clients on completed matters would be permissible based on the wording of the Rule.

Since websites and other online activities cross jurisdictional boundaries, it is also wise for lawyers to be careful to mention that any legal information provided by them pertains to their jurisdiction only, (and to name that jurisdiction) but that the rules may be different if a reader is located elsewhere.

Questions About the Law and Communication with Prospective Clients
Website inquiries posed through online contact forms, email inquiries, and participation in social media and online networking sites create additional issues. One major area of concern is a lawyer’s obligation to avoid creating an inadvertent lawyer-client relationship, and to preserve the confidentiality of communications with prospective clients. The Rules and opinions place a great deal of importance upon who controls the flow of information and whether that information is provided unilaterally or whether it is part of a bilateral discussion, as well as the subsequent actions of the lawyer or firm once the communication is received.

For example, lawyers who answer questions on the Internet, whether on social or professional networking sites such as LinkedIn and other social media outlets or on legal sites such as Avvo or Justia should always be careful not to mislead or to create an inadvertent lawyer-client relationship with those posing questions or reading the lawyer’s answers. The ABA Opinion cites several cases from a variety of states noting that since lawyers cannot screen for conflicts of interest when answering questions posted on the internet, lawyers should refrain from answering specific legal questions unless the advice given is not fact-specific.9

New York Rule 1.18 governs duties to prospective clients. Rule 1.18(a) defines a prospective client as a “person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter.” The term ‘discuss’ is clarified somewhat upon a reading of Rule 1.18(e) (1), which provides that a person who communicates information unilaterally to a lawyer, without any reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship; or (2) communicates with a lawyer for the purpose of disqualifying the lawyer from handling a materially adverse representation on the same or a substantially related matter, is not a prospective client with the meaning of paragraph (a).

The determination of whether an individual communicating with a lawyer is considered a “prospective client” is important because Rule 1.18(b) states that even when no client-lawyer relationship ensues, a lawyer is required to keep information learned during such discussions confidential. In addition, this information may disqualify a lawyer from representing another individual in the same or substantially related matter.10

Opinions which have considered the nature of ‘unilateral’ communications from prospective clients make a distinction between specifically inviting prospective clients or web visitors to contact the attorney about their legal matter and simply making contact information available to the prospective client or visitor. Where the contact is specifically invited, lawyers are cautioned to make every attempt to restrict the flow of information as one would in an initial consultation with a client, by advising them of the lawyer’s obligations regarding conflicts and the dangers of revealing confidential information.

It should be noted that lawyers may usually be permitted to pose and answer hypothetical questions without being considered to have given personal legal advice (such as in posting “Frequently Asked Questions” on a website).11 In the case of contact forms or answers to questions, lawyers may also wish to include a statement that no specific legal advice may be offered by the lawyer until a conflicts check is undertaken, and that information sent through a web form or via email may not be treated as confidential.12

In all cases, lawyers should clearly state that the information they post or questions they answer is general advice based on the rules of their own jurisdiction and should not be a substitute for personal legal advice. Mandatory Disclaimers and Warnings
Rule 7.1 (d) permits lawyers to include in their advertising: (1) statements reasonably likely to create an expectation about results the lawyer can achieve; (2) statements comparing lawyer’s services with services of others; (3) testimonials or endorsements or clients or former clients; and (4) statements describing or characterizing the quality of the lawyer’s or law firm’s services as long as those statements are not misleading, can be factually supported by the lawyer or firm as of the date of the advertisement and are accompanied by the following mandatory disclaimer: “Prior results do not guarantee a similar outcome.”13

Rule 7.1 also requires advertisements other than radio, television or billboard, directory, newspaper, magazine or other periodical to be labeled, “Attorney Advertising.” This notation must be contained on the first page of an advertising piece or on the home page of a lawyer or law firm’s website. Self-mailing brochures or postcards must contain the notation, and any email that qualifies as ‘advertising’ (see below) must include “Attorney Advertising” in the subject line.

For example, if a firm produces a newsletter that qualifies as ‘advertising,14 and it contains information such as statements reasonably likely to create an expectation about results the lawyer can achieve or statements comparing the lawyer’s services with the services of other lawyers, it must also include the disclaimer, “Prior results do not guarantee a similar outcome,” and it must also include the “Attorney Advertising” notice.

If that same firm newsletter is sent via email, the subject line must contain “Attorney Advertising” pursuant to 7.1(e)(3).15

What Constitutes Advertising
New York State Bar Association Committee on Professional Ethics Opinion 848 is instructive, as it provides insight into the analysis used to determine whether an attorney newsletter is an advertisement, which can be applied to other activities which may raise questions for lawyers. The definition of “advertisement” is contained in Rule 1.0(a): “Any public or private communication made by or on behalf of a lawyer or law firm about that lawyer or law firm’s services, the primary purpose of which is for the retention of the lawyer or law firm. It does not include communications to existing clients or other lawyers.” (emphasis added)

To determine whether an educational newsletter qualifies as an ‘advertisement’ the Committee considered three factors: the intent of the communication, the content of the communication, and the targeted audience of the communication. According to the opinion, merely including biographical or contact information with a link back to the attorney’s website is not sufficient to transform an otherwise educational newsletter into an advertisement. Further, if the primary purpose (intent) of the communication is general awareness and branding rather than retention of a law firm for a particular matter, that alone will not be sufficient to consider the communication advertising.

The second prong of the test reviews the content itself. If the newsletter provides information or news primarily about the lawyer or law firm, its cases, personnel, clients or achievements, it will generally be considered advertising. If it contains primarily information about the law or legal process, it may not be considered advertising.

Finally, the audience for the communication must be considered. Communi­cations to lawyers or existing or former clients are not considered advertising, regardless of their intent or content. If the newsletter or information is sent to a prospective client or individual who has expressed an interest in and specifically requested information about the lawyer’s services, it will also not be considered advertising. But if the newsletter is available on the firm’s website or mailed to the general public, or where the audience who receives/views the newsletter is unknown, the advertising rules must be complied with and the communication must conform to the requirements of Rule 7.1.

Internet Website Directories
As competition increases in the legal community, more attorneys graduate without jobs or open their own law offices, and Internet attorney directories increase in popularity. The New York State Bar Association Committee on Professional Ethics Opinion 799 deals with the question of whether a lawyer may use the services of a website that forwards inquiries from potential clients, where the lawyer pays a fee to participate in the service.

The opinion distinguishes between payment for a listing in a traditional directory such as the yellow pages, and a service which is involved in “analyzing” the prospective client’s problem and selecting an appropriate lawyer for the matter. The former does not violate the ethical rules prohibiting payment for ‘recommendations’ because it simply provides the prospective client with “tools by which a potential client can filter a list of attorneys by geography and/or practice area.”16 However, when the site purports to recommend a particular lawyer or lawyers for the prospective client’s problem based on an analysis of that problem (whether this analysis is performed by a person or by computer, based upon inputs by the prospective client), that activity is prohibited by other than a qualified lawyer referral service.17

Opinion 799 outlines specific guidelines for lawyers interested in using these kinds of web directories at page 5, including ensuring that the site does not recommend subscribing lawyers or make claims about their competence or character, does not claim it will analyze the problem to find a suitable lawyer, and that it allows prospective clients an opportunity to screen the list of lawyers shown the posting and remove some lawyers from the list, among others. It is also recommended that both the service and lawyer minimize communication of confidential information between the lawyer and the prospective client until the lawyer is retained and completed conflicts check, and that prospective clients be cautioned that information provided may not be protected by the attorney client privilege. Use of the Internet to disseminate information about the law and about a lawyer’s services, qualifications and clients is becoming standard practice and makes good business sense. But lawyers must be vigilant about how they use these technologies in order to avoid ethical mis-steps.

Allison C. Shields, Esq. founder of Legal Ease Consulting Inc. More information can be obtained on her website, www.Lawyer Meltdown.com or blog at www.LegalEase Consulting.com.

1. The Rules of the New York State Unified Court System, Part 1200, Rules of Professional Conduct (hereinafter, “New York State Rules”), contains the ethical rules with which lawyers in New York State must comply.
2. See Rule 5.1, Responsibilities of Law Firms, Partners, Managers and Supervisory Lawyers
3. See Rule 5.3, Lawyer’s Responsibility for Conduct of Non-Lawyers
4. ABA Formal Opinion 10-457, Lawyer Websites, August 5, 2010
5. ABA Formal Opinion 10-457, page 2.
6. ABA Formal Opinion 10-457, page 2.
7. Rule 7.1(b)(2)
8. Rule 7.1 (c)(1)
9. ABA Formal Opinion 10-457, page 2.
10. See NYS Rule 1.18(c).
11. ABA Formal Opinion 10-457, page 3.
12. ABA Formal Opinion 10-457, page 2, footnotes 10-14; Association of the Bar of the City of New York, Formal Opinion 2001-01(2001). Lawyers should also review ABA Formal Opinion11-459, August 4, 2011, regarding the duty to protect the confidentiality of email communications with a client and consider whether warnings to prospective clients about sending confidential information via email where there is a likelihood that it will be seen by a third party would be appropriate.
13. Rule 7.1(d) and (e)
14. According to NYSBA Committee on Professional Ethics Opinion 848, December 22, 2010, the determination about whether a firm newsletter is considered advertising depends upon three things: the intent of the communication, the content of the communication, and the targeted audience of the communication.
15. Opinion 848 also notes that an attorney may include additional language in the disclaimer as long as it does not undermine or contradict the mandated language and is not false, deceptive or misleading.
16. New York State Bar Association Committee on Professional Ethics Opinion 799, September 29, 2006, page 2.
17. Note, this opinion refers to the old Disciplinary Rules, rather than the new (2009) rules of professional conduct.