The ethical rules that govern legal advertising and marketing were developed at a time when the Yellow Pages was the dominant place for legal advertising. The rules have not changed much since then, but legal advertising has. That presents a challenge for law firms that attempt to apply antiquated rules to an electronic era which uses law firm websites, online legal directories, matching services, pay per click services, pay per lead services, and social media that were not even conceived of when the rules for print were written.
The ABA Model Rules of Professional Responsibility, adopted with some variations by many state bar associations, provide the foundation for ethical rules on attorney advertising. The rules apply both to traditional print advertising and to online advertising. A key rule that governs all attorney advertising is that it must not be “false or misleading.” Jurisdictions may apply this standard differently. The trans-jurisdictional reach of the Internet and the broad range of legal marketing programs offered on the Internet further complicate interpretation pose unique ethical challenges.
Over-Broad Jurisdictional Coverage: The Internet provides unprecedented ability for advertisers to reach a broad geographic audience. Unfortunately, it is impossible to ensure that only clients in the area where a firm is legally admitted to practice have access to a firm’s website. If the website does not specifically define the jurisdictional limits of a firm’s practice, the firm can be exposed to claims of unauthorized practice of law and exposed to the requirements of advertising rules for all 50 states.
Creation of Inadvertent Attorney-Client Relationship: Many marketing programs and law firm websites permit clients to submit forms or emails that ask legal questions or request legal assistance, which can give clients the expectation that an attorney-client relationship exists. Any law firm website that provides a form that can be submitted to the firm should contain an express disclaimer of any attorney client-relationship. When working with a legal marketing program, an attorney should verify use of a similar disclaimer or send non-engagement letters to those who have submitted inquiries.
Avoiding Conflict of Interest/Breach of Confidentiality: Law Firms should always do a conflict check when receiving email inquiries from their law firm web site or marketing program. Email forms should request basic conflict check information but should not ask for details about a client’s situation until the firm has run a conflict check. All outbound email should have an “attorney-client privileged” label. Emails are often forwarded, so failure to include this label can mean privileged information is inadvertently sent to others. Clients also should be advised to be careful about forwarding privileged communications to avoid waiving privilege.
Promotion of Unjustified Expectations: The Model Rules and the bar rules of many states ban unverifiable claims that create unrealistic expectations or suggest a particular result. Law firm websites and lawyer marketing participation can run afoul of these rules in a number of ways. A domain name like “familylawexpert.com” or “bestdivorcelawyer.com” may be considered a violation of some state bar rules. Designations such as “Top Lawyer” that suggest certain lawyers are superior to others also can create problems. State bar associations usually have rules that govern the publication of client testimonials and case results, including disclaimers. An attorney should make sure that any such representation meets the requirements of the state bar.
Social Networks as Advertising: Although many attorneys do not regard social network activity as advertising, social network sites may be subject to state bar rules. A law firm that uses a social networking site must be sure that the information on the site is truthful and not misleading. The firm also must be careful that appropriate disclaimers cover messages, such as “John Doe is a great lawyer,” posted on the social networking site. Even if the intention of a social network site is not to look for business, the law firm should presume that state bar communication and advertising rules apply.
Inappropriate Program Structure: Some legal marketing programs are straightforward directories which are much like Yellow Page advertising online but provide more information about the firm. These programs are safe as long as they avoid designations like “Outstanding Lawyer” or “Expert Attorney.” Other programs fall into an ethical gray area. Matching services that gather information about a client and then attempt to match the client with an attorney have run afoul of state bar rules in several states. Those state bars specifically distinguished picking from a pre-printed list of attorneys from the client/lawyer matching service. Some states consider matching services to be referral services that have not applied for state bar referral service approval.
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