GPSOLO October/November 2010
Technology and Ethics: Online Marketing and Networking
By Aviva Cuyler
We hear it daily: The Internet offers countless ways for lawyers to showcase their expertise, communicate the integral part they play in every aspect of life, and truly to connect with colleagues and potential clients. Search, social media, content publishing, open discussion forums . . . each is an opportunity to grow your reputation and practice in the direction your passions lead.
Yet, this new transparency also carries with it the very real potential for the opposite: myriad opportunities (digitally documented) to run afoul of the ABA Model Rules of Professional Conduct. Worse yet, missteps not only travel with lightning speed across the web, they remain forever archived.
Although some assert that lawyers should simply conduct themselves online as they do off-line, there are others who believe this fails to consider the unique challenges posed by new technology. For example, Rule 7.1 (“A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services.”) seems straightforward enough in the off-line world, where lawyers can control what they say and where they say it, but online there are now venues where lawyers’ own representations are inextricably combined with those of others whom they do not control.
On the one hand, as representatives of the legal system, lawyers are duty bound to comply not only with the letter of their jurisdiction’s rules of conduct but with the spirit as well. On the other hand, despite all the unanswered questions regarding the contours of permissible behavior, lawyers are constantly being told that they must participate in everything the online landscape has to offer. They must do it now or they’ll be, heaven forbid, “left behind.”
Against this backdrop, what’s a lawyer to do?
I recently went searching for an answer to this question from a number of experts, whose advice I’ll share below. But first, a few caveats of my own. This article does not purport to resolve every question—nor to opine on whether the existing rules are appropriate or reasonable in the current landscape. And it is not an attempt to scare you away from taking advantage of the rich opportunities available to demonstrate your expertise and connect with new clients.
Rather, this article simply highlights some of the key issues that must be considered given the rules as they stand, and it shares the experts’ opinions on these issues in the hope of helping you make more informed decisions as you engage in online activities.
Social media encompass all forms of online communication that happen essentially in real time. That would include social network status updates, participation in question-and-answer forums, and listserves.
Of course, the same limitations to your off-line conduct apply. Don’t disclose client confidences (Rule 1.6), don’t misrepresent your practice (Rule 7.1), etc. However, these venues have, among others, four characteristics that we do not encounter at all, or at least to the same extent, in our off-line lives.
National forums. Online forums are geographically unlimited, thereby posing a greater risk of running afoul of Rule 5.5:
A lawyer who is not admitted to practice in this jurisdiction shall not: (1) except as authorized by these Rules or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of law; or (2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.
Does a Texas lawyer who answers a question posed by a Montana resident implicitly or otherwise represent to the public that he is admitted to practice in Montana?
According to Brian Tannebaum, a Florida disciplinary defense lawyer, it is a violation of both Rule 5.5 and 7.1 for a lawyer to fail to disclose the jurisdictional limits of his practice when responding to online inquiries. Regardless of whether the forum and/or question itself disclose the consumers’ jurisdiction, lawyers should preface their answers by disclosing the state(s) in which they are licensed to practice and, to the extent the lawyer’s answer addresses substantive aspects of the law, add a caveat that the answer is based on the law of the lawyer’s state only.
Beverly Michaelis, practice management advisor with the Oregon State Bar Professional Liability Fund, agrees. She notes that, at least in Oregon, the definition of what constitutes an attorney-client relationship is quite broad—and is based on the subjective understanding of the consumer. For this reason, Michaelis encourages lawyers who respond to legal questions online to also familiarize themselves with the terms and conditions communicated to participating consumers. Ideally, the forum itself notifies consumers at the outset that their questions are public (and thus not confidential communications) and that responses to their questions do not create an attorney-client relationship.
Client solicitation. Another unique characteristic of social media: These forums offer a plethora of opportunities to identify individuals who are in need of legal services and to connect with them directly. Yes, we’ve always been able to do this. But social media makes it easier and, truth be told, more economically viable to do so.
Previously, a personal injury lawyer might have hung out at the local hospital eavesdropping on conversations (or hired someone else to do so), or scoured the newspapers for reports of accidents and tracked down the victims. This practice, seen as not only unfairly taking advantage of the lay person victim but harming the reputation of the legal profession as a whole, gave rise to Rule 7.3:
Rule 7.3(a): A lawyer shall not by in-person, live telephone or real-time electronic contact solicit professional employment from a prospective client when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain, unless the person contacted: (1) is a lawyer; or (2) has a family, close personal, or prior professional relationship with the lawyer.
. . .
Rule 7.3(c): Every written, recorded or electronic communication from a lawyer soliciting professional employment from a prospective client known to be in need of legal services in a particular matter shall include the words “Advertising Material” on the outside envelope, if any, and at the beginning and ending of any recorded or electronic communication, unless the recipient of the communication is a person specified in paragraphs (a)(1) or (a)(2).
Today, identifying individuals in need of legal assistance and connecting with them is as easy as joining subject-specific chat rooms, searching questions in one of the many legal Q & A forums, or running a search on the major social networking sites for keywords relating to your practice.
Does inviting someone whom you know to be in need of legal services to connect with you on a social network implicate Rule 7.3(a) or 7.3(c)? According to Michaelis, there are multiple ethical issues associated with such conduct. First, inviting someone to be your “friend” on a social network when your true intent is simply to solicit business is misleading. Further, in order not to be misleading, solicitation must include the word “Advertisement” in various locations (e.g., the subject line). Depending on your jurisdiction, that word must be in certain colors and/or font sizes—which the social networks likely do not accommodate in their invitation forms. Altogether, this type of behavior is an “invitation to disciplinary action” in which lawyers should not engage.
What about joining a discussion forum or chat room composed of potential clients (e.g., those identifying themselves as victims of the drug Vioxx)? According to Gabriel Miller, general counsel to Sokolove Law, this type of conduct is similarly rife with risk; if you choose to participate in such forums, Miller suggests that one option, albeit not one without risk, is to immediately identify yourself as a lawyer who represents personal injury victims and to identify the name of your firm and the geographic area in which you practice. In other words, you should treat participation in the forum as if it were an advertisement, encouraging the potential client to contact you rather than “soliciting” the business.
Public communication with existing clients and adverse parties. Lawyers should also be cautious when connecting, and communicating, with existing clients on social networks. Per Michaelis, unsophisticated clients (and their lawyers) may mistakenly believe that some of their communications via social networks are private when they are not, inadvertently leading to disclosure of confidential information and waiver of the attorney-client privilege. Michaelis suggests that, as an alternative to connecting with clients on forums such as Facebook via personal profiles, lawyers do so via Facebook business pages, which provide a more formal environment.
Beyond connecting with current clients, social media also offer the opportunity for lawyers to interact with adverse parties or witnesses in violation of Rule 4. But the temptation to do so online may be greater as (in contrast to the off-line world) the online environment enables anonymous contact through a social networking account that does not disclose one’s identity, or via comments or the submission of forms on the subject’s own website. According to Michaelis, lawyers can look, but they cannot touch. Even submitting information on an online form could be construed as impermissible communication.
Fictitious persona (or puffery). One of the most common missteps that Tannebaum sees in online marketing is a tendency to overstate a firm’s size/reach or a lawyer’s qualifications. He notes that the Internet makes it easy for people to create a persona that exceeds reality by, for example, claiming they have “extensive experience” in a practice area in which they have been practicing a mere matter of months.
Although misrepresenting a practice technically violates Rule 7.1, the greater threat, according to Tannebaum, is to the lawyer’s reputation. State bars may not have the resources to police every representation by a lawyer online, and prospective clients are unlikely to be aware that a lawyer has overstated his qualifications. However, there are many lawyers who are active online and on the lookout for this type of puffery by their colleagues. Tannebaum warns that the long-term effect of being publicly rebuked by peers far outweighs any short-term benefit to be gained, as the record of blog posts, tweets, etc., condemning the guilty lawyer remain online and available to prospective clients searching a lawyer’s name long after the lawyer changes the offending copy on his own website, blog, or profile. Moreover, Google and other services maintain archives of digital content—so the record of misstatements is not erased simply by altering them.
All of the above constraints apply to a lawyer’s own website as well. But there are additional considerations here, where the lawyer has greater control and thus more responsibility for content and where visitors may have different expectations. Websites are also a venue where lawyers are more likely to rely on technical assistance by others who may not be aware of the unique considerations that apply to lawyers.
Search engine optimization. Search engine optimization (SEO) is an element unique to online marketing efforts. Because this practice is entirely foreign to most lawyers, they often rely unquestioningly on outside consultants. There are occasions, however, in which SEO best practices may conflict with best practices for attorney conduct. Specifically, the copy that may make the most sense from the perspective of being found by a search engine may, unintentionally, mislead visitors to a firm’s site regarding the nature of its practice.
One example: including a list of every county in your state followed by the word “attorney” or “lawyer.” The purpose of this practice is to help the site appear in search results when a consumer searches for a lawyer located in his or her county. According to Tannebaum, however, this can be misleading to consumers if the firm does not, in fact, have an office in each of those counties and, particularly, if the lawyer does not take cases in certain of the counties listed.
Another example: using titles other than the law firm name, such as “Seattle Bankruptcy Center,” as the title for a law firm’s website. Although the intent may be simply to help the right prospective clients find the firm’s website when they conduct online searches, using such titles on a website may be interpreted as operating under a trade name. Some states prohibit this entirely, whereas others allow trade names but require their registration. According to Michaelis, lawyers should familiarize themselves with their own state’s rules and, even where the above practice is permitted, clearly identify the firm and lawyers who are behind the website to avoid misleading visitors.
Interactivity. Increasingly, lawyer websites are more than simply online brochures. Modern law firm websites often now include interactive forms for potential clients to submit. In addition to informing prospects that their communications to the lawyer via the forms may not be secure, Michaelis advises lawyers to (a) discourage visitors from disclosing confidential information in the forms and (b) include visible disclaimers that submitting a form does not create an attorney-client relationship.
This, she says, is essential to protect not only the consumer but the lawyer, as well. Unscrupulous clients sometimes schedule consultations with every lawyer in town, in which they intentionally disclose confidential information—in order to preclude their adversary from being able to retain these lawyers. There is nothing to prevent these types of people from attempting to do the same thing by submitting forms on websites—a much quicker and easier way to accomplish the same objective.
Michaelis also cautions lawyers to maintain in their conflict database a complete record of the forms submitted online and the identity of those who submit them. In one case of which she is aware, during cross-examination, a party to the case blurted out that he did not think it fair that the lawyer was representing the opposing party in light of the fact that he had consulted this lawyer. The consultation had occurred years before; the lawyer, who had not maintained a record, forgot all about it, as the potential client had never returned. The adverse party, however, had not, and waited for the most inopportune—or, from his perspective, opportune—moment to disclose this fact. The court disqualified the lawyer. His client, who then had to hire a new lawyer and relitigate the case, filed a grievance and sued him for damages.
One of the most notable effects of the digital age is the ease and speed with which we are able to publish our writing and the size of the audience to which it can be transmitted. No longer are we subject to the whims of the Bar Review board, onerous Blue Book requirements, and editorial filtering. Anyone with a computer can easily, and at little or no cost, publish whatever, whenever—and with a modicum of effort reach hundreds, if not thousands, of people. In short, with a few clicks, anyone can become his or her own editor, publisher, and distributor.
But, as with everything online, this new freedom includes the potential for very public infringement of the rules of conduct.
Articles and blog posts.. (Disclosure: my company, JD Supra, provides a platform for online publishing of articles and court documents by lawyers.) The most obvious consideration when publishing online, whether articles, blog posts, or blog comments, is to refrain from disclosing attorney-client privileged information, misrepresenting qualifications, or impugning a judge or the judicial process. Though obvious, it is still worth mentioning. The casual nature of online communication, and the ease of publishing, has led more than one lawyer, in the heat of frustration with a ruling, to click the “publish” button on a blog post or comment they later regretted.
Maybe less obvious: Readers online are national, or even international, and may assume that your analysis of the law applies to the reader’s own jurisdiction. Accordingly, you should include explicit reference to the state whose laws your writings address.
Finally, though blog titles and design may be more akin to branding of a law firm newsletter than to either stationary or a firm’s website, and thus, not as likely to be subject to the proscriptions that apply to use of a trade name, they do, nevertheless, constitute representations regarding a lawyer’s practice and may be considered “advertising.” Accordingly, Michaelis says, blogs should prominently and clearly feature the name and office address of the law firm and/or lawyer responsible for the blog’s content.
Court documents. Court documents are public records, but they have not been freely available, searchable, and accessible online until relatively recently. Yet more recently, lawyers have been able to publish their own filings and decisions. According to Jeffrey Geiger, legal malpractice attorney at Sands Anderson, although Rule 1.6, which prohibits disclosure of confidential client information, would not apply to public filings and decisions, in accordance with lawyers’ overarching duty to act in the client’s best interest, lawyers should obtain client consent prior to publishing court documents in a particular case and, where it is in the client’s best interest, redact the parties’ names and other personal information prior to doing so. Geiger notes, however, that there are cases in which it may be in the clients’ interest to generate publicity and vindication for their position in a case.
Directory Listings and Profiles
Another new attribute of the online landscape: lawyer directories that have been created independently of any input by the listed lawyers and that include information such as consumer ratings and feedback over which the listed lawyers have no control. These sites entirely circumvent the state bars’ historical control over the nature of information available about lawyers. Neither the bars (nor indeed lawyers themselves) can prevent the directory owner or the consumers who leave comments from misstating a lawyer’s practice or making otherwise prohibited statements as, for example, representations regarding past results.
A number of states are attempting to address this situation with revised rules. South Carolina recently issued an advisory opinion that, once lawyers “claim” a third-party directory listing and modify it, they are responsible for monitoring all content that appears in the listing and ensuring that it conforms to the Rules of Conduct. If lawyers cannot do so, they must remove the entire listing. This rule does not seem to account for the fact that some directories only allow lawyers to modify certain fields in their listing, do not enable them to modify information inserted by the directory owner or third parties, and also do not allow them to remove their listings.
According to Geiger, the only apparent way to comply with the South Carolina opinion is to refrain from participating on such sites entirely. However, both Michaelis and Geiger take a pragmatic view of the situation and recommend that lawyers control what they can and, if necessary, use those fields within their control to qualify those that are not. For example, LinkedIn profiles include a field entitled “Specialty”; as Michaelis notes, there is ongoing debate as to whether listing one’s practice areas in the Specialty field violates the prohibition against representing that a lawyer is an expert in a particular area in the absence of a special certification. Michaelis’ opinion: Simply add a caveat within the portion of the field that you do control stating that the listed areas reflect only your general areas of practice. With this caveat, the listing is unlikely to mislead consumers, and that, ultimately, is the objective of the rule.
ConclusionThe Internet offers a variety of opportunities for legal professionals to network, learn, and grow their practices. Although there are clearly a multitude of potential pitfalls, risk is inherent in all of our activities—from the risk of a car accident while driving to work, to the risk of a malpractice claim arising out of our practice of law. As in all endeavors, education and care are the best defense. When it comes to online marketing, familiarize yourself with the local rules and, more importantly, the way your state interprets and enforces them. And, in all your actions, act in accordance with your conscience. As the Scope to the Model Rules recognizes: “The Rules do not . . . exhaust the moral and ethical considerations that should inform a lawyer, for no worthwhile human activity can be completely defined by legal rules.”