The Ethics of Online Advertising

Vol. 41 No. 7

By

G.M. FILISKO is a lawyer and freelance writer in Chicago.

Before you begin practicing, make sure your seemingly innocuous online chatter does not expose you to an ethics violation.

No matter where you land after passing the bar, you will probably have some online involvement. Whether you have your own website, blog, Facebook page, or Twitter feed or contribute to those of your employer, you need to ensure your online activities fall within your jurisdiction’s ethics rules governing advertising.

That may be harder than you think. Because technology is so quickly changing how people interact personally and professionally, there are more and more gray areas in which ethics rules may not yet have caught up with the pace of change. That has left both lawyers and ethics czars unsure of how to proceed. It doesn’t, however, lessen your responsibility for understanding advertising ethics rules and how they apply to today’s new media. Here is an overview.

What Constitutes Advertising?

Before you can determine how ethics rules affect your online activity, you need to understand what is typically considered advertising under those rules. Today, that definition is in flux.

“Technology has changed attorney advertising in quite a number of ways,” says Michael Downey, a litigation partner at Armstrong Teasdale LLP in St. Louis and a member of the ABA Section of Litigation’s Ethics and Professionalism Committee. “It has obviously changed the media being used. Instead of lawyers using TV, they are now using YouTube. That lowers the entry price and makes it much easier for everyone to do it. It also removes a lot of controls. Firms are finding they might have an associate or nonattorney with a blog or Twitter account posting both personal information and information related to the firm. That person may become the most visible person at the firm—and the firm may not have any control over what that person says.”

Even if you would never consider advertising in the traditional sense—say, purchasing an ad on local TV—you must be aware of how seemingly innocuous online activities might meld into advertising. “We used to think of advertising as something in a newspaper, magazine, or on TV,” says Debra L. Bruce, a lawyer and president of Houston-based Lawyer-Coach LLC, who coaches lawyers on law practice management. “Now lawyers who would never think of advertising and who don’t want to advertise may find themselves doing things regulated by the advertising rules when they use social media.”

One example is creating a LinkedIn profile. “In a number of states, lawyers aren’t allowed to publicize testimonials,” explains Bruce. “However, on LinkedIn, people can recommend you. If you accept a recommendation, you could be subject to your state’s ethical rules. In Texas, it is OK to have testimonials, but you can’t have statements that compare you to other lawyers based on unverifiable data, like ‘She is the best DUI lawyer in Dallas.’”

The problem is that ethics overseers are being forced to adapt old rules to today’s new advertising vehicles, says Stuart Teicher, who teaches professional responsibility at Rutgers–the State University–School of Law–Camden in New Jersey and serves as an ethics investigator and prosecutor for the New Jersey District Ethics Committee. Teicher teaches continuing legal education sessions throughout the country, specializing in the ethics of social media and technology.

“More and more of the communication we do on social media and new technology is being characterized as advertising,” explains Teicher. “Almost anything we say that is self-promotional is being seen as advertising.”

In addition, not every state makes it clear what is acceptable. “How disciplinary bodies handle ethical issues regarding online advertising all depends on your particular jurisdiction and the people who work there,” says Teicher. “Some have not had a single opinion on it. Others have had multiple. But that isn’t so different from a lot of ethics issues. Some jurisdictions aren’t generally proactive, and others are. We find in the ethics world that we are very frequently relying on decisions from other jurisdictions.”

Know What You Should Know

You will, of course, have to immerse yourself in the ethics rules of the jurisdiction in which you practice. That said, here are some guidelines to help you avoid trouble regardless of your jurisdiction.

1. To be safe, assume everything you do online is advertising. “Generally, online activity is going to count as advertising,” says Downey. “You can avoid that by limiting your online activity to things unrelated to the law. But if it is related to your law practice, you have to comply with your jurisdiction’s rules.”

2. Read the rules. “Start with your state’s bar rules,” advises William Head, a partner at Head Thomas Webb & Willis LLC in Atlanta who has taught other lawyers how to comply with federal and state laws on Internet marketing since 1995. “Whether you like them or not, they are the rules unless you successfully challenge them in court.”

Teicher suggests focusing on rules 7.1–7.3. “Rule 7.1 governs the content of advertising, generally saying we can’t make misleading communications about ourselves or our services,” he summarizes. “Rule 7.2 says we are allowed to advertise and where. It also gives some detail about disclosures and things like that. Rule 7.3 deals with solicitation. Because each state has its own nuances, you must look closely at rules in your jurisdiction.”

3. Always be truthful. “Be truthful, and be transparent,” recommends Josh King, general counsel and vice president of the lawyer rating and review website Avvo in Seattle. “That sounds obvious, but when you think of the informal and pseudo-anonymous nature of a lot of online activities, people feel like they can play a little faster and looser with the rules. That is a mistake, whether it is writing phony reviews for yourself, misrepresenting yourself on your website, or not being transparent.

“For example,” continues King, “there has been a big debate in the blogosphere recently about whether lawyers should leave off their date of admission to the bar, which is a temptation for many new lawyers.” His advice? Be honest, and turn it into a competitive edge, stating you will have more time for clients, charge less, and be more responsive.

Downey also stresses truthfulness in online posts. “If you wouldn’t feel comfortable being questioned about your posts in a deposition, you shouldn’t put it there,” he explains. “I once got a $4 million judgment. But I wouldn’t want to get called on that and have to say, ‘Well, it wasn’t as great as it sounds. The other side was going to prison and caved.’”

4. Make sure anybody who works on your behalf follows the rules. “You are responsible for everything third parties, like website development people, put online on your behalf, and it must comply with the rules,” says Downey. “There is an interesting case out of Louisiana. A website creator put up profile of a person on a law firm’s website that suggested the guy was a lawyer. While he graduated from law school, he never got his law license. The firm’s entire management committee reported itself for the behavior and got a reprimand.”

King says it is especially risky to hire a company to build or generate traffic for your website and not pay attention to how it achieves results. “The search-engine optimization community is full of ethical and above-board people, but it is also full of snake oil salesmen,” he explains. “There are tactics that are generally shunned by ethical SEO people, like posting spam comments with links on blogs. A comment might say, ‘What a wonderful blog post. It is so well written. . . ’ and then link to a Missouri law firm. Or they will create bogus blogs for lawyers and fill them with content they are ripping off from others. Whatever marginal benefit you get from that type of behavior, it isn’t worth it from a marketing or ethical standpoint.”

Also beware before you sign on with a company promising to generate Internet leads on your behalf. “Marketers using the Internet for lead generation for lawyers often violate ethical laws by not making the proper disclosures,” says Head. A hypothetical website—based on a real website Head reported to his state’s ethics counsel—might be called www. bestbankruptcyattorney.com. It would appear among search results when consumers search terms like “bankruptcy” and “lawyer.” The link would take users to a generic site with photos of unidentified but serious-looking people in a law library, where consumers would be prompted to submit their e-mail or phone number in exchange for bankruptcy information. Consumers’ contact information would then be sent to a lawyer for a fee.

“Nobody knows who those ‘best attorneys’ are,” says Head. “There are no names, no credentials, and no case results,” he says. “This website is an insult to good lawyers.”

5. Know what can turn online activity into advertising. “Most states consider a website to be advertising,” says Bruce. “However, a lot of aspects of social media aren’t considered advertising. In Texas, things like blogs, Facebook posts, or LinkedIn profiles aren’t per se advertisements if all you post is your office location, phone number, and a description of the cases you take. But some things you say can turn those things into advertising. You might say something like, ‘We have been successful in 90 percent of our Social Security disability cases.’ Once you start saying stuff like that, you are into advertising.”

Downey suggests treading carefully around other “flash points” that raise ethics overseers’ antennae. “Be careful with things like client testimonials, talking about past results, claims of a specialty, or your ability to get unusual results,” he advises. “Those definitely raise the attention of bar authorities.”

6. Know the nuances of solicitation rules. “Most states have some kind of prohibition against solicitation,” explains Bruce. “Most also have an exemption if you have a preexisting relationship with a potential client. I have seen lawyers on Twitter say things like, ‘I handle DUI cases, and I will give you my Twitter discount on the fee.’ When you click back to see what that lawyer was responding to, you find the person had posted, ‘Just got a DUI, daggummit!’ Unless that person falls within one of the exceptions for friends, family members, or past clients, that response, in Texas, is unethical. And just because people are called ‘friends’ on Facebook doesn’t mean that is true for ethics purposes.”

7. Think twice before talking about clients or cases online. The most common mistake lawyers make online? “Speaking about their cases,” says Teicher. “You shouldn’t give enough detail to allow someone to figure out which client you are talking about.”

King says this is especially a problem with today’s shorthand communications. “If you talk about the results you can get or have gotten, you need to be clear about the context,” he says. “On places like Twitter, which has a 140-character limit, you simply don’t have that ability. I don’t know of any cases or opinions on this issue, but I believe they are coming. In addition, you aren’t getting any real benefit when you just do a one-way stream of promotional messages. So why take the ethical risk?”

Ultimately, the most important advice for lawyers involved in online marketing may be not to lose sight of the real world. “If you want to build business, there is nothing better than getting out there, shaking hands, taking people to lunch, and meeting people,” says Head, whose practice is overwhelmingly built on referrals. “That is the key to building a legal practice.”

What is Considered Acceptable Advertising?

To understand what is considered acceptable advertising, review the ABA’s Model Rules of Professional Conduct. But because each state has its own nuances, look closely at rules in the jurisdiction in which you practice.

RULE 7.1 COMMUNICATIONS CONCERNING A LAWYER'S SERVICESA lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.

RULE 7.2 ADVERTISING
(a) Subject to the requirements of Rules 7.1 and 7.3, a lawyer may advertise services through written, recorded or electronic communication, including public media.

(b) A lawyer shall not give anything of value to a person for recommending the lawyer’s services except that a lawyer may

(1) pay the reasonable costs of advertisements or communications permitted by this Rule;

(2) pay the usual charges of a legal service plan or a not-for-profit or qualified lawyer referral service. A qualified lawyer referral service is a lawyer referral service that has been approved by an appropriate regulatory authority;

(3) pay for a law practice in accordance with Rule 1.17; and

(4) refer clients to another lawyer or a nonlawyer professional pursuant to an agreement not otherwise prohibited under these Rules that provides for the other person to refer clients or customers to the lawyer, if

(i) the reciprocal referral agreement is not exclusive, and

(ii) the client is informed of the existence and nature of the agreement.

(c) Any communication made pursuant to this rule shall include the name and office address of at least one lawyer or law firm responsible for its content.

RULE 7.3 SOLICITATION OF CLIENTS
(a) A lawyer shall not by inperson, live telephone or real-time electronic contact solicit professional employment 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.

(b) A lawyer shall not solicit professional employment by written, recorded or electronic communication or by inperson, telephone or real-time electronic contact even when not otherwise prohibited by paragraph (a), if:

(1) the target of the solicitation has made known to the lawyer a desire not to be solicited by the lawyer; or

(2) the solicitation involves coercion, duress or harassment.

(c) Every written, recorded or electronic communication from a lawyer soliciting professional employment from anyone 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).

(d) Notwithstanding the prohibitions in paragraph (a), a lawyer may participate with a prepaid or group legal service plan operated by an organization not owned or directed by the lawyer that uses inperson or telephone contact to solicit memberships or subscriptions for the plan from persons who are not known to need legal services in a particular matter covered by the plan.

 

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