In this age of social media platforms being the primary focus of advertising on the Internet, we tend to forget about the regulation of websites and the ethics of advertising through our websites. Yet, websites are the primary source of Internet-based advertising that is currently being reviewed and regulated by state bars throughout our country.
A lawyer in today’s world simply can’t prosper without a website. While some lawyers continue to do business without a website, they are few and far between. Even if a lawyer does not need a website to generate new leads, a website is necessary for confirmation to the public.
People and businesses looking for a lawyer are no different than any of us looking for a vendor or store on the Internet. How do you feel when you search for a business on Google, only to find out that the business doesn’t have a website? Even if you try to give the business the benefit of the doubt, you can’t help being suspicious about why the business doesn’t have a website in 2021. The same holds true for people in need of legal services searching for attorneys on the Internet.
A lawyer’s website doesn’t need to be fancy, but it needs to contain a minimum amount of information to at least confirm to the potential client that the lawyer is legitimate. What may that include? For starters, the lawyer’s name, address, telephone number, email address, and areas of practice. Think of that information as your online business card. Some attorneys literally have only that information, but at least that’s enough to show a potential client that you are a real attorney. Beyond the online business card, we move into online brochures. Such additional information includes a photo of the attorney, awards, associations, and written synopses of practice categories. As you can imagine, this additional information expands on the legitimatization of the attorney and provides the potential client with familiarity by way of the photo, differentiation by way of the awards, and depth by way of the further details about each practice area.
The best lawyer websites go beyond the online business card and brochure and are expansive resources that not only help the potential clients get to know the attorney better but also provide them with resources that will educate potential clients about the subject areas in which the attorney practices and the procedures governing the types of legal matters the attorney handles. Building on the information already mentioned above, these websites tend to have blog posts, videos, resource articles on substantive law and procedure, and testimonials or reviews by clients.
As you are most likely aware, the more information an attorney includes on a website, the more one must think about the ethics of advertising through the website and the regulation by state bars, especially if an attorney or law firm practices in more than one state. For specific information about the regulation of websites in your particular state, it is best to consult your governing disciplinary rules and procedures and any regulations set forth by your state bar or high court that governs the legal profession in your state. This article is meant to give you reminders about what ethical dilemmas you may face when advertising through your website and how to successfully navigate through them.
In considering the ethics of advertising through your website, it’s best to start with the American Bar Association Model Rules of Professional Conduct (Model Rules). Different parts of the Model Rules govern different information contained in websites. For example, “Information about Legal Services” is covered in Rule 7. The prescriptions set forth in those rules start out as basic moral rules and expand from there:
A 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.
Model Rule 7.1
To sum up Rule 7.1, don’t lie or mislead. Whether the information is about you or your practice, just be honest. If only we could write that Rule so simply, but, alas, we have to muddy the waters with “material misrepresentation,” “fact necessary,” “as a whole,” and “not materially misleading.” The purpose of this article is not to do a scholarly analysis of the ethics of advertising through your website but rather to make you aware that there actually are ethics involving such matters and to explore how to think about them as you are building, revamping, or reviewing your website.
The good news is that Rule 7.2(a) allows a lawyer to “communicate information regarding the lawyer’s services through any media.” The Internet is an acceptable form of media, and websites are at the heart of such media (although one could argue that social media has taken the place of websites for consumers). Generally, lawyers are allowed to have websites, but beware that a website must include “the name and contact information of at least one lawyer or law firm responsible for its content,” pursuant to Rule 7.2(d).
So far, so good: A lawyer can have a website so long as his or her name and contact information are included on the website and the content of the website is not false or misleading as to the lawyer or the lawyer’s services. This leads us to the question of how we include our practice areas in our websites. We all have our niche, although some of us have broad practices while others have very narrow practices. Rule 7.2(c) concerns how we inform the public about our practice areas:
A lawyer shall not state or imply that a lawyer is certified as a specialist in a particular field of law, unless:
(1) the lawyer has been certified as a specialist by an organization that has been approved by an appropriate authority of the state or the District of Columbia or a U.S. Territory or that has been accredited by the American Bar Association; and
(2) the name of the certifying organization is clearly identified in the communication.
This is where things start to get more complicated. Lawyers love to differentiate themselves by practice areas, and for good reason; the legal service consumer is usually looking for help related to a particular matter. Governing bodies and courts throughout the country have wrestled with the idea of communicating specialty or expertise. While all 50 states have adopted the ABA Model Rules of Professional Conduct in one part or another, no state has adopted the entire Model Rules verbatim. So, you’ll need to consult your state’s rule regarding how to communicate your practice niche in a way that doesn’t violate your state’s version of Rule 7.2(c) and is not false or misleading to the public.
The next topic of concern regarding the ethical implications of your website is solicitation. In today’s world, solicitation can take many forms, and no longer are we limited to in-person or mail contact. The digital world opens up a Pandora’s box. Rule 7.3(a) states that:
“Solicitation” or “solicit” denotes a communication initiated by or on behalf of a lawyer or law firm that is directed to a specific person the lawyer knows or reasonably should know needs legal services in a particular matter and that offers to provide, or reasonably can be understood as offering to provide, legal services for that matter.
The good news is that:
[a] lawyer’s communication is not a solicitation if it is directed to the general public, such as through a billboard, an Internet banner advertisement, a website or a television commercial, or if it is in response to a request for information or is automatically generated in response to electronic searches.
Comment 1 to Model Rule 7.3
We can ask for a potential client’s business through our website and do so in a very directed manner, such as advertising for a particular type of dispute or injury. Anyone who has ever seen a website for a class action lawsuit or a particular type of personal injury, such as oil refinery explosion, accident involving an 18-wheeler, or any number of other particular facts, knows that websites can be targeted at particular segments of the population without being considered solicitation. Many states have particular restrictions on how you can do so, but the general rule is that you can. Some states no longer allow attorneys to state the total amount of a settlement or verdict without specifically stating how much the client netted after all attorney fees and costs were deducted. This is why it’s important to know that such restrictions may exist and thus the need to consult your state’s rules and court interpretation thereof.
Beyond information about legal services, many lawyer websites have information about clients and former clients, either as examples of what the lawyer has handled or through testimonials. It is best to advise clients when the particulars of a client’s case will be used as an example on a lawyer’s website. Additionally, it is best to get approval before displaying a client’s testimonial.
One of the fundamental tenets of the legal profession is the sanctity and confidentiality of attorney-client communications. Rule 1.6 of the Model Rules
governs the disclosure by a lawyer of information relating to the representation of a client during the lawyer’s representation of the client. See Rule 1.18 for the lawyer’s duties with respect to information provided to the lawyer by a prospective client, Rule 1.9(c)(2) for the lawyer’s duty not to reveal information relating to the lawyer’s prior representation of a former client and Rules 1.8(b) and 1.9(c)(1) for the lawyer’s duties with respect to the use of such information to the disadvantage of clients and former clients.
Comment 1 to Model Rule 1.6
Case examples and studies are a popular method of conveying information about the lawyer’s style and practice on a website, but such examples come with inherent risks of divulging confidential information. The prohibition of a lawyer revealing information relating to the representation of a client
also applies to disclosures by a lawyer that do not in themselves reveal protected information but could reasonably lead to the discovery of such information by a third person. A lawyer’s use of a hypothetical to discuss issues relating to the representation is permissible so long as there is no reasonable likelihood that the listener will be able to ascertain the identity of the client or the situation involved.
Comment 4 to Rule 1.6
Thus, the more specific the case example is in revealing a particular client or case, such that a third person could figure out the client or matter, the more likely the example will run afoul of ethical boundaries. Case studies must be carefully written and thoroughly reviewed before putting them on your website, as they probably come the closest to revealing protected, confidential information. Remember, the lawyer’s duty of confidentiality continues even after the attorney-client relationship has ended, so be careful! See Comment 1 to Model Rule 1.9.
To help ensure that lawyers are complying with the ethical rules concerning information included in websites, states often regulate such information by way of advertising review committees or departments of state bar associations or high courts. Lawyer advertising has evolved over the years, from print media to radio and television and now to the digital age. As such advertising has progressed, regulations and regulators have tried to keep up with the times.
Print media that took time to prepare and was included in newspapers, magazines, mailers, and phone books were covered by regulations and generally required approval before being published. Although it took a while for the profession to warm up to electronic advertising in radio and television, such ads also generally had to be approved in their entirety before making it on air. The interesting dynamic and conundrum of digital websites and advertising have made it difficult for regulations and enforcement bodies to keep up.
In the early days of the Internet until just recently (and some states may still require this), most states required that every page of a website be approved and every change to a website be approved. Such was generally okay when websites were static and nothing more than online business cards or brochures, but now that we have blogs, online resource libraries, testimonials, videos, sales funnels, and so much more, it’s been difficult to keep up. Not only have regulating bodies had a difficult time keeping up with reviewing such online content, but lawyers are at a loss as to how much to submit to the review committees and how often to do so. In my experience, many lawyers now approach website regulation with a “ask forgiveness rather than permission” mindset. There just isn’t a way for review committees to review the ton of online content produced by lawyers on their websites.
More states are now allowing attorneys to submit only the top page of their websites, the home page. While something is better than nothing, the problem with this limited scope is that it ignores the reality of how consumers find information online. No longer does a consumer know the exact URL of an attorney’s website. More often than not, a consumer arrives at a particular page within a lawyer’s website after an online search for particular information. Thus, consumers are just about guaranteed to find the home page of a lawyer’s website only after landing at some other page on the website first, so how a review body can simply believe that a review of the home page is sufficient is beyond me.
This leads to the broader question of how we as a society will govern online advertising in general. The Federal Trade Commission and other federal and state governmental entities try to enforce the laws created by legislative bodies and interpreted by the courts, but such laws and court opinions generally lag behind the technology.
The ethical boundaries of attorney advertising through websites seem to be much easier to define than the regulation and enforcement of those boundaries. Do not display false, misleading, or confidential information on your website. That seems easy enough, but we lawyers are famous for making easy things hard, and so it is with regulation and enforcement. I don’t believe we can ever successfully review all the pages of all the websites of attorneys in the United States, so we should at least have appropriate punishment when enforcement bodies discover attorneys violating the advertising regulations that govern their websites. After all, we want to encourage the dissemination of useful information while deterring the false and misleading information and revelation of confidential information. I would love your feedback on the ethics of advertising through your website!
