FAQs on Attorney Advertising and Ethics Rules in the Digital Age

More and more attorneys and law firms are turning to websites, social media, and other digital platforms to advertise for and solicit new clients. These platforms use algorithms, advanced marketing, and artificial intelligence (AI) techniques to target particular audiences. These practices carry potential professional responsibility implications for lawyers, such as the inadvertent creation of an attorney-client relationship. This article answers some of the most frequently asked questions (FAQs) when it comes to attorney digital advertising and ethics rules.

Q: Do I need a digital marketing strategy?

A: Yes. Marketing practices in the legal profession have evolved from traditional methods including networking, referrals, and print advertising to digital methods such as search engine optimization (SEO), email marketing, and influencer marketing on platforms like YouTube and TikTok. Surveys show that 86% of law firms have a social media presence, 71% of lawyers report that they have generated new leads from social media, and 65% of law firms say their website brings the highest return on investment.

American Bar Association Model Rules of Professional Conduct (the “Model Rules”) 7.1 and 7.2 generally permit attorney advertising so long as it is not false or misleading. Note that subject to certain exceptions, Model Rule 7.2 prohibits paid referrals and Model Rule 7.3 prohibits lawyer solicitation for pecuniary gain if the lawyer knows or reasonably should know someone is in need of legal services.

To the extent your resources permit, a lawyer can start with building a website and social media presence, and expand to other digital marketing practices such as emails and digital advertising.

Q: Can I hire a third-party digital marketing agency for lead generation?

A: Yes. Third-party vendors can be retained for digital marketing efforts including lead generation.

Model Rule 7.2 distinguishes paid referrals, which are prohibited, from situations where a lawyer pays reasonable costs of advertising, which are permitted. It further permits services that generate internet client leads so long as the lead generator does not recommend the lawyer.

Online lead generation may implicate multiple ethics rules. For example, if a lead generator “lurks” in online forums where people discuss mass layoffs or union organization, and reaches out to participants to offer labor and employment law services, this conduct likely violates Model Rule 7.3 against solicitation. Additionally, Model Rule 5.3 requires lawyers with direct supervisory authority over a nonlawyer to make reasonable efforts to ensure that the nonlawyer’s conduct is compatible with the professional obligations of the lawyer. Therefore, lawyers must fulfill their supervisory responsibilities and educate vendors about lawyers’ ethical obligations concerning advertising, solicitation, referral fees, and others.

Q: Should I install an AI chatbot on my law firm’s website?

A: Although an AI chatbot can help streamline the intake process, its risks might outweigh its benefits.

AI chatbots interact directly with prospective clients by providing automated answers to questions. Some even use an AI-generated video avatar to create the impression that the client is speaking to a real lawyer, and some can send out follow up emails and even auto-generated retainer agreements.

However, lawyers’ supervisory duty under Model Rule 5.3 extends to use of AI tools such as a chatbot, making the lawyer responsible for any AI content that violates the Rules. Model Rule 5.5 also prohibits lawyers from engaging in or assisting the unauthorized practice of law. Lawyers should also be particularly careful that the chatbot does not inadvertently create an attorney-client relationship.

Lawyers must fully understand how the chatbot works and review all scripts the chatbot might use. Lawyers should put up prominent disclaimers on the website noting that the chatbot is automated and unable to give legal advice, to prevent unauthorized practice of law. Lawyers should also prevent the chatbot from saying things that could potentially form an attorney-client relationship. The existence of an attorney-client relationship is viewed from the perspective of the client, and misunderstandings about whether a relationship exists seem hard to avoid. Lawyers should understand that AI tools often use and store data and they should take appropriate steps to evaluate the tools’ terms of service and protect client information. Attorneys should opt for services designed specifically for legal professionals, ensuring they comply with ethical standards.

Q: How can I respond to a negative online review?

A: Model Rule 1.6 emphasizes an attorney’s duty not to reveal any information relating to the representation of a client unless the client gives informed consent. This duty of confidentiality is broader than attorney-client privilege and includes publicly available information. This is a bright line rule.

Model Rules permit lawyers to participate in online directory listings so long as they are not misleading. Generally, when a client posts a negative review on a public forum such as a Google review, it does not constitute a waiver of a lawyer’s duty of confidentiality. If a lawyer wishes to respond to a review publicly, for example, to clarify certain misunderstandings, they can give a general response—such as “I am sorry you are unsatisfactory with our service, my ethics obligations prohibit me from substantively respond to you publicly, please contact me offline,” but the lawyer may not disclose any information about the representation.

Q: Should I start a YouTube/TikTok channel?

A: We all have seen lawyers on social media talking about their success stories, commenting on latest developments in the legal community, and interacting with followers in comments or during livestreams. Social media can be a great channel to build a personal brand, showcase your expertise, and connect with potential clients.

Lawyers should be mindful that there is a difference between legal education and legal advice. Model Rules prohibit attorney advertising and solicitation under the guise of public service announcements. When responding to followers’ questions, especially legal questions, lawyers should not provide legal advice and potentially lead the followers to believe an attorney-client relationship has been formed. Lawyers should also not disclose any confidential information.

Conclusion

Lawyers contemplating a digital marketing strategy should start by identifying the applicable Rules of Professional Responsibility for the chosen practices in their jurisdiction and the jurisdictions that might be impacted. Ultimately it is the individual lawyer’s responsibility to vet products and content, to supervise staff and third-party vendors (including AI), and to adapt to constantly changing technologies for ethically compliant digital advertising efforts.