Jul 28, 2009

Don't Let the Bar's Ethics Rules Scare You Offline

Are ethics rules keeping lawyers offline?

Perusing the summary results of the ABA 2008 Technology Survey, I noticed a tremendous disconnect between lawyers' use of the Internet as a source of information as compared to their use of online tools for marketing.  According to the survey, 79 percent of lawyers receive information through news websites, while 59 percent subscribe to email newsletters.  By contrast, substantially fewer lawyers blog (just two percent) or participate in social networks (15 percent).  In fact, barely more than half of solo and small firms -- just 52 percent -- even have a website.

On one level, the disparity between lawyers' use of the Internet as a source for news on the one hand and for marketing and online relationship-building on the other might be attributed to lawyers' lack of time.  After all, blogging or actively engaging social networking consumes more time than scanning a few newspapers online.  But increasingly, I'm convinced that fear of sanction for marketing conduct deters lawyers from truly exploiting the potential of online marketing.

In addition to the statistics that I've just discussed, several anecdotes corroborate my theory.  In a recent listserv discussion, several colleagues shared that they would not use Twitter because of concerns that their participation could inadvertently breach client confidences or expose them to a potential grievance or malpractice liability (for example, an offhand tweet reading, "The judge was really a jerk" might lead a client to complain that the lawyer should have filed a motion to recuse the judge).  And in response to my post on blogging from several weeks back, a few readers expressed the concern that they might face a grievance under their state bar rules, or possibly even criminal liability, for blogging.

The spate of well-publicized lawsuits against commercial companies involved in lawyer marketing further fuels lawyers' fears.  For example, earlier this year, a lawyer filed ethics complaints in 47 jurisdictions against Total Attorneys, arguing that the company's performance-based online marketing lead generation system was tantamount to an imperssible for-fee referral service.  Likewise, Avvo and Superlawyers, two companies that rate and list lawyers and allow lawyers to post the resulting ratings at their website were the subject of lawsuits or ethics complaints, charging that these ratings systems are misleading to consumers and thus violated proscriptions on deceptive advertising.  Though Avvo and Superlawyers eventually prevailed, their victory offers little comfort to solo and small firm lawyers contemplating online marketing who lack the resources to serve as an ethics test case.

Still, lawyers must not allow the hype surrounding these isolated cases deter them from engaging in online marketing.  By familiarizing themselves with applicable ethics rules, understanding some of the best practices outlined below, and consulting with bar regulators when uncertain, lawyers can inoculate themselves against grievances and, more importantly, exploit the enormous marketing and relationship-building potential that the Internet offers.

Best Practices

1.  Read the bar rules.

It is absolutely imperative that you personally take the time to read and familiarize yourself with your jurisdiction's ethics rules governing advertising.  All too frequently, lawyers tend to rely on rumors that certain conduct is not permitted, when in fact, the other situations involved conduct in another jurisdiction, were distinguishable on their facts -- or the rumor was just plain wrong.  A recent ABA Teleconference on Ethics in Web 2.0 Marketing emphasized the importance of reviewing ethics rules (see call summary at The Lawyerist) since each jurisdiction takes a different approach.  The ABA conveniently provides links to each state's advertising ethics rules to make it easy for lawyers, particularly those licensed in several jurisdictions, to check them.

2.  Understand the categories of conduct that may raise red flags.

You'd go crazy trying to memorize the specifics of every ethics rule.  And I certainly can't summarize the crazy-patchwork of ethics regulations for fifty different jurisdictions in one blog post.  As a first step, what's more important than the specifics is the issue spotting -- the ability to recognize those categories of conduct that may raise ethics red flags.  Once you encounter an activity that you think may raise an ethics issue, you can review your ethics rules and any related ethics opinions to determine whether the activity is permissible.

To help with the process, I've listed most of the most popular online marketing tools and the corresponding ethics issues that they may implicate:

1.  Websites.  In many jurisdictions, a law firm website is considered "advertising," just like a newspaper ad or a law firm brochure.  As such, a website may be subject to certain bar regulations that govern print ads, such as prior review or a requirement that the site contain a disclaimer or notice stating that the site constitutes advertising.  Likewise, the same types of communications prohibited in print ads or brochures such as: (1) deceptive and misleading statements (such as guaranteed results) or statements that cannot be factually substantiated (e.g., "We are the best lawyers in town!"), (2) claims of specialization may also be prohibited, or (3) use of monikers or prohibited logos (such as "The Heavy Hitter" or a  pitbull logo, which isn't allowed in Florida). 

In contrast to print ads or brochures, websites also present special ethics considerations.  Because websites are viewable anywhere in the world rather than just a specific geographic location, they can give rise to potential claims of unauthorized practice of law (UPL).  Accordingly, websites should specify the states where you are licensed to practice and can handle cases.  Also in contrast to brochures, websites open the door for readers from anywhere to contact you by email, so be sure to include a disclaimer that sending an email does not trigger an attorney-client relationship to prevent a user from claiming that you never responded to her email and caused her to miss the statute of limitations on her suit.

2.  Blogs.  If you publish an article in a journal or newspaper, you typically aren't required to include a disclaimer that your article is advertising.  That's because many bars treat articles as educational tools rather than communications intended to attract paying clients.  Under some bar rules, this same reasoning might apply to blogs which merely provide commentary or discuss case law rather than solicit business, thus exempting blogs from regulation as lawyer advertising.  Again, check your bar rules because some specifically include blogs within the definition of "advertising" or define advertising in such a way that blogs fall within the scope of the definition.

So what types of issues do blogs raise?  In addition to the considerations that apply to websites, one concern about blogs is that readers may rely your advice and then try to hold you accountable if they relied to their detriment.  Include a disclaimer on a blog that the posts address general matters and should not be relied on by readers or considered legal advice.  Lawyers who blog should also avoid discussing "live" cases to avoid running afoul of court gag orders or inadvertently disclosing a strategy to opposing counsel.  Finally, a recent law review article suggests that blogging can raise ex parte concerns, though others disagree (as do I).  

Though not necessarily an ethics issue, for the sake of transparency, lawyers who blog disclose whether they have a personal interest in one side of an issue or not (for example, if you blog about a client that your firm represents, you ought to disclose that to readers).  And if lawyers makes a recommendations about a product where they retain a financial interest (such as affiliate fees), they should be wary of proposed Federal Trade Commission rules which may crack down on undisclosed blogger endorsements.   For more best practices on blogging, see this piece by Ed Poll.

3.  URLs.  A website's URL or web address can raise ethics issues in some jurisdictions.  For example, some states that prohibit use of phrases like "State X Law Clinic" or "Jones Legal Aid" because of the potential for confusion with bonafide legal aid organizations, and likewise prohibit use of these names for a website address, e.g., statexlawclinic.com.  However, don't assume that all states apply the same rules to law firm names and and website URLs.  In New York, law firms are barred from using trade names (e.g., BlueSky Law Firm) but may use a trade name for a website or blog (so BlueSky Law Firm as a firm name is prohibited, but www.blueskylawfirm.com as a website name is not is not).  Many states also allow lawyers to use descriptive names for websites -- such as NewYorkCollectionsLawyer.com or MadisonWisconsinTrustsAttorney.com -- so long as the names are not deceptive or misleading.  

Most state ethics codes offer fairly clear guidance on trade names and website names.  Take the time to review them or you could potentially miss out on a desirable name because you mistakenly assumed that your ethics rules wouldn't allow it.      

4.  Rating  Sites.  As already mentioned, sites like Avvo and Superlawyers rate clients.  While lawyers won't be subject to an ethics complaint when a rating is performed by a third party, lawyers may be prohibited from using those ratings in ads and on websites in some jurisdictions.

5.  Testimonial Sites.  Testimonials and endorsements are ethical red flags in advertising because they can may create an expectation of success or discuss matters that cannot be factually verified (e.g., "My lawyer was the best!").  Websites like Avvo or LinkedIn allow clients and lawyers to post endorsements or testimonials and where a third party outside the lawyer's control posts the testimonial (as opposed to the lawyer himself), it's doubtful that the bar would have the jurisdiction to require a take-down. 

The real ethics question arises where lawyers want to link to testimonials posted at a third-party site or put those testimonials up at their websites.  Check whether your bar's rules permit use of testimonials in advertising, but again, read the rules carefully.  Some states ban testimonials by clients, but still allow endorsements from lawyers or colleagues.

6. Social Networking Sites.  Social networking sites like Facebook or MySpace allow users to upload photos and exchange personal information.  Though there's certainly plenty of opportunity for stupidity in this regard (such as uploading photos of yourself drunk or wearing a skimpy swimsuit), stupidity alone won't necessarily trigger an ethics complaint.  When it comes to social networking sites like Facebook, lawyers and even judges run into trouble when they attempt to use the site in a deceptive manner or engage in ex parte communications.  Earlier this month, a North Carolina judge was reprimanded for "friending" one of the lawyers in a case before him.  And in May, the Philadelphia Bar Association ruled that a lawyer could not ask a third party to "friend" a potential witness in a case in order to gain access to the witness' Facebook page.    

7.  Twitter. 
At first blush, Twitter, a micro-blogging tool which allows users to exchange 140 character sound-bites (and described in more detail here) seems harmless enough.  After all, how many ethics rules can you violate in just 140 characters?

Plenty, if you're not careful.  A lawyer who tweets about a bad day in court ("Bad day. Case is a dud and we will lose.") may inadvertently convey client confidences or private deliberative work product to opposing counsel.  Similarly, if a lawyer asks a follower who tweeted about a car accident whether she needs a lawyer may run afoul of bar rules prohibiting solicitation.  Ethics rules don't prohibit lawyers from participating in Twitter, but neither does the limited scope of a tweet absolve lawyers from adhering to ethics requirements.

8.  Listservs, Chatrooms and Q&A Fora. The Internet affords lawyers many opportunities to interact with lawyers and non-lawyers in a variety of settings.  When engaging in chat rooms or responding to questions, lawyers avoid giving specific advice or they run the risk of potential UPL claims or exposure to liability where another party relies on the advice.  

Conclusion

State bars developed ethics rules to prevent the public from predatory lawyers who engage in deceptive advertising.  Unfortunately, stringent regulation of online lawyer marketing has the unintended consequence of deterring lawyers from using online tools like websites or blogs -- which can provide valuable information to consumers -- or engaging in social networking sites where clients can learn more about lawyers whom they might want to hire.  Ultimately, instead of protecting the public, strict oversight of online advertisement has left consumers with fewer options and less information about lawyers and the law.  Not only do we lawyers owe it to ourselves to engage in as much online marketing activity as is ethically permissible to build profitable practices, but we owe it to the public to disseminate as much information about our practices as possible so that consumers can make informed decisions when they hire a lawyer.