Law Firm Websites: Ethics and Compliance Issues
For the development and use of law firm websites, ethical considerations are significant. The legal industry has strict and stringent rules that are more difficult than most other areas of professional service.
If you begin with the understanding that law firm marketing has only been in existence for 35 years — from the landmark Supreme Court decision in Bates v. Arizona — and you factor in the fast-moving changes in technology, what you’ll find are many lawyers and their respective state bars struggling to determine how the rules mesh with the combined function of Internet and marketing.
In my 15 years of working on Internet marketing issues for lawyers, I have developed a national reputation for being the ethics lawyer that understands how all of this functions. It has allowed me to work with law firms throughout the country on ethics compliance — sometimes in the initial stages, sometimes as preventive medicine, and in many others after a law firm receives notice of a disciplinary infraction, due to a violation of the Rules of Professional Conduct (RPC). These are not rules to ignore. The level of requirements, oversight, and enforcement vary tremendously from state to state — ranging from the extremely “sticky” (such as Florida) to the rather benign (which I won’t name, for fear they won’t appreciate being called out).
If you are a law firm, a web developer, a search engine optimization company, or marketing agency, it is imperative that you understand that there are rules. If you are the lawyer, the onus rests on your shoulders to identify the rules and make sure that your online efforts are compliant. If there are rule violations, the person or business at risk is the law firm. The oft-used excuse by many attorneys — my marketer did it, or my SEO guy did it— falls on deaf ears.
What Are the Rules?
This is a tricky area, because while every state has rules that have similarities to others, most have taken different routes in addressing the issues. Most rules flow from the American Bar Association’s “Model Rules.” However, it is the specific state rules and often the accompanying comments that determine oversight. The web is available virtually anywhere on the planet. You do not need to comply with the rules for everyone. You need to determine which state regulations come into play.
For determining relevant jurisdictions, consider the following.
- In which states does the law firm have offices or locations?
- In which states are your attorneys admitted to practice?
- Where are you actively seeking clients?
In recent years, there has been discussion regarding the purchase of keywords in some states, and the use of metatags and coding in certain geographic locations. These factors could weigh into whether a particular state can claim you are marketing into their territory.
What to Look For?
- Appropriate Disclaimers. Every law firm website should have a visible “disclaimer” on the home page, and ideally throughout the site. In many states, there is specific language that must be visible on the home page itself. For example, New York requires you to state “Attorney Advertising” on the home page. States often look at the existence of a proper disclaimer when examining a violation or dispute — a law firm needs to protect itself against issues of conflict, confidentiality, development of an attorney-client relationship, and other factors that come into play.Some states require specific language regarding selection or retention of an attorney. Others require language relating to use of “success stories,” testimonials, referrals, and case studies. While written to protect the consumer, the rules are for every law firm and every client type. When determining which states impact your marketing efforts, remember that even the smallest office requires the same level of compliance as the home or central offices of a law firm.
- It is an ever-changing area of law. Changes to a state’s Rules of Professional Conduct and issuance of new formal ethics opinions happen all the time. In some states, such as Florida, Connecticut, Louisiana and Texas, what was allowed yesterday may not be allowed tomorrow. It is important to stay on top of changes in the states that impact you most. There are excellent resources available on the American Bar Association website and more importantly, on the websites of most state bar associations. If you are going to promote understanding the RPC, make sure that you yourself do not engage in the “unauthorized practice of law” or put yourself in harm’s way when the law firm receives a dreaded letter from a state’s disciplinary counsel or committee.
- What are these rules trying to accomplish? The overarching purpose of the rules is to protect the past, present, and prospective client of a lawyer. The regulations are also about protecting the lawyer from ending up with a client or in a matter that they did not really want. The number one concern is often creating an unwanted attorney-client relationship — and this is a real issue for law firms seeking to bring in clients directly from online marketing efforts.There is also the issue of conflicts, and the possibility that the firm might not be allowed to take someone on as a client. A failure to “conflict check” could result in a law firm losing a major matter in exchange for a much smaller one, or none at all. In the practice of law, confidentiality is paramount — and that must be protected, from filling out an online form to any exchange of information via the web.
- What is regulated? Many of the regulations that impact Internet marketers fall under the rules relating to advertising, solicitation, and communication. Points of view differ, but I’ve always directed firms with the understanding that a website is advertising, as would be virtually anything else designed for marketing purpose — blogs, email communications, and social media posts. It is also important to examine rules related to limits on solicitation, as you can’t circumvent in-person violations by using electronic ones.There is also a tendency by some law firm marketers to take advantage of the Internet’s wide net, and perhaps solicit matters in which the firm is not competent or lack authorization to practice, such as not your state. There is also a tendency to use the Internet to generate matters that can then be referred to other lawyers for a fee or percentage. There are specifics in most states as to what is and is not allowed in this practice.
Some of the most seasoned marketers and general counsel within law firms struggle with the issues of ethical considerations on their websites, blogs, and traditional marketing materials. It is important that anyone involved in Internet marketing is at least aware of the issues, and their existence. Most state bars will happily provide formal or informal opinions on whether something you would like to do is compliant. And in many cases, it never hurts to remind a lawyer you are working with that they need to let you know which ethics rules might come into play for your particular online marketing effort.