This post is a must read for any attorneys or law firms using internet marketing. You want to make sure that your practice is complying with the ethical rules when it comes to internet marketing. But this should not be your only stop. Each state has different ethical rules to follow, and this post will discuss how the ABA rules apply to attorney websites and blogs. After reading this post, you should pull up and review your own state’s professional conduct code and look for similar provisions.
Let’s state by first briefly discussing the professional rules we follow. We know that law is a self-governing profession with a fair amount of ethical rules for lawyers to comply with. Today, these are called the Model Rules of Professional Conduct (the “Rules”) and were adopted by the ABA’s House of Delegates in 1983 from the older Model Code of Professional Responsibility. These were of course preceded by the Canons of Professional Ethics which was adopted in 1908.
However, these rules are not binding on a lawyer unless their state has adopted them or promulgated similar provisions. Currently, most states have encompassed the model rules in their own professional codes with the exception of California.
We are also well-aware that the law typically lags behind when it comes to addressing topical advancements, such as technology and the internet. Even though some states like New York have thoroughly parsed through how the law and technology relate (see, i.e., NY Rules of Professional Responsibility 7.5(e)), the ABA’s Rules really have not.
So now let’s look into the ABA Rules. Rule 7 is under the broad heading of “Information About Legal Services.“ This is where we can find the majority of the rules and principles pertaining to attorney marketing on the internet.
The first, overarching rule we need to be concerned about is Rule 7.1–”Communications Concerning a Lawyer’s Services.” This Rule prohibits a lawyer from making “a false or misleading communication about the lawyer or the lawyer’s services.” The rule continues by defining a”false or misleading” communication as one that “contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.” (see also Comment 2).
According to Comment 1, this rule DOES apply to websites and blogs because it “governs all communications about a lawyer’s services, including advertising permitted by Rule 7.2.” Any website will have information about a lawyer or law firm’s practice areas which, even if just listing the practice areas, arguably comes under the parameters of this law. But the case for advertising is only strengthened because Comment 3 even says that firm news, former clients, and information like recent cases–even if they are true–are considered advertising! This kind of information is frequently included on a firm’s website or blog.
As noted, Rule 7.1 refers in its Comments to Rule 7.2–”Advertising.” Sub(a) is another very broad provision which allows attorneys to advertise “through written, recorded or electronic communication.” Comment 3 here acknowledges that “electronic media, such as the Internet, can be an important source of information about legal services.” Therefore, websites and blogs undoubtedly fall into this category and cannot be false or misleading under Rule 7.1.
Comment 2 also provides information regarding what can actually be included in the advertisements. It states that this rule permits:
- Information concerning a lawyer’s name or firm name, address, and telephone
- The kinds of services the lawyer will undertake
- The basis on which the lawyer’s fees are determined, including prices for specific services and payment and credit arrangements
- A lawyer’s foreign language ability
- Name of references
- And a catch-all allowing other information that might invite the attention of those seeking legal assistance.
However, it is VERY important to note that states might have different takes on these allowances! For example, New York only permits foreign language ability if fluent and not just a general ability. Also, this Comment is slightly misleading, because sub(c) REQUIRES that a communication has the name and office address of at least one lawyer or law firm, but the comment only “merits”; an important “must vs. may” distinction and trap to be aware of!
The next important rule is Rule 7.3–”Direct Contact With Prospective Clients.” This rule really pertains when you are directly soliciting clients, BUT also sending out e-mail newsletters to individuals you have not yet had a clients. The rule does have a carveout for past clients, unless an exception applies. In addition to prohibiting in-person and live telephone calls, this rule also specifically includes “real-time electronic contact[s]” in the prohibition against advertising for employment. Of course, there are two exceptions as to whether the other person is a lawyer or the person is either family, close friend, or prior professional relationship. This exception would include past clients in newsletters.
But this rule still prohibits a lawyer from sending e-mail to another person if that person 1) has “made it known” they do not want to be solicited or if it 2) contains “coercion, duress or harassment.” This means, even if you have had an individual before, if they ask you to remove them from the subscription/email directory, you cannot send them newsletters anymore or you are breaking an ethical rule!
Additionally, EVERY e-mail sent MUST including “Advertising Material” at the BEGINNING and at the END!
The last rule that really applies directly to websites and blogs is Rule 7.5–”Firm Names and Letterheads.” At first glance, this rule might not look like it applies. However, it is thrown into the Comments and is actually really state specific because the United States Supreme Court has permitted legislation that would prohibit the use of trade names in professional practices.
This rule includes the firm names, including website addresses according to Comment 1. The Comments also directly reference to Rule 7.1 and state that a website address cannot be misleading. So websites like “www.WeWon’tLose.com” is barred in every state. However, states that permit trade names–for instance in the Comment a name like “Springfield Legal Clinic”–could be used as a website address. Again, the most important lesson from this rule is to check your state’s comparable rule to ensure you comply with it.
In conclusion, we know that attorney advertising is generally one of the heavily-regulated aspects of the practice of law. While the ABA Rules are somewhat lacking in directly addressing lawyer marketing on the internet through websites, e-mails, and blogs, the Rules have still tossed into the Comments evidence that the actual subsections do apply.
The bottom-line is to always check your state’s profession conduct code and their Comments, but also look at some other sources not addressed in this post. Ethical and Advisory Opinions issued by your state’s grievance/ethical committee and the ABA also provide a wealth of information for you look at as well. Generally, these sources will be a step ahead of the Rules and are a good point to look at for interpretation of the Rules.
Finally, be familiar with the entire professional conduct code as this post is not exhaustive in what could potentially apply. While it goes without saying that this post should not be construed as legal advice, it is certainly a good point for you to start and reread the sections, comments, and see what other rules apply.
As internet marketers ourselves, we are well-aware of the rules we must follow for our clients and prospective clients. What makes this especially difficult for us is that we are not state specific–clients may be in other states with other rules! While we are conscious about the ethical rules in that state, the bottom-line is that the lawyer or law firm is responsible for ensuring their advertising, website, and blog comply.
If you have any questions or would like to learn more, please contact us at inquiries@NABLegalMarketing.com.
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