You have a practice concentrating in estate planning, and in an effort to help your clients connect with various nonlegal services to assist them in implementing their estate plans, you would like to include links to third-party service providers such as accounting, financial planning and life insurance providers.
You also own a financial planning service and would like to include links to that as well.
What if any ethical considerations should you take into account before including such links on your website?
There have been some state bar ethics opinions that have addressed these and related questions. Some of them address situations where the links are to businesses that are owned by third parties; others address issues involved where the business or service is owned by the law firm.
With regard to links to businesses or entities that are owned by third parties, see, Illinois State Bar Opinion 15-05 (2015), which stated that a law firm could include a link to a business consulting service so long as any information included on the consulting service’s website about the lawyer was not false or misleading.
The Illinois committee also suggested that the law firm should include a disclaimer stating that the firm does not “maintain the linked site and does not necessarily sponsor or approve of the materials and information contained in the linked site.”
The committee noted that if the lawyer or law firm refers clients to the outside business pursuant to an agreement that the outside business will in turn refer its customers to the law firm, the lawyer must also comply with Rule 7.2(b)(4) Advertising that states:
(b) A lawyer shall not give anything of value to a person for recommending the lawyer’s services except that a lawyer may
(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.
New York State Bar Opinion 888 (2011) is in accord with the Illinois opinion, stating that a lawyer may include links to nonlegal businesses on its website so long as the link will not be misleading or create confusion.
The opinion made a distinction between two types of links, “informational” and “reciprocal.” An informational link is one that leads to another business or entity’s website. Reciprocal links are those in which two websites have links that refer to each other.
The opinion gave the following as an example of an informational link that could be considered to be misleading or confusing without an appropriate disclaimer:
…[A] link to an official government web site that created the impression that the law firm had some government connection would be impermissible where the implied connection does not exist. NY Rule of Professional Conduct 8.4(c). The same is true for links to private web sites if the link is likely to create confusion or misrepresentation. In some circumstances, an appropriate disclaimer would be necessary.
The opinion stated that to the extent that the reciprocal link is intended to generate revenue for the law firm or if there is a financial relationship between the entities, it may be considered to be lawyer advertising and that the links on the home pages of both websites may need to be labeled as attorney advertising.
Two New York State Bar opinions have addressed situations involving links to law-related services that are owned by the lawyer or law firm.
New York State Bar Opinion 1101 (2016) addressed the question of whether a lawyer who was also a real estate broker could insert a link to his real estate business on his law firm website that would include information about his real estate background, real estate listings and contact information.
The New York committee stated that the lawyer could do so as long as both the content of the lawyer’s website and the page reached by the link comply with the applicable lawyer advertising rules.
(As an aside, the New York committee also noted that in most cases, it would be unlikely that a lawyer could serve a client both as lawyer and real estate broker in the same transaction due to the inherent conflicts between the two roles.)
The committee also cautioned that the lawyer should be mindful of the provisions of Rule 5.7 Responsibilities Regarding Law Related Services, and the steps lawyers can take to clarify that the law-related services provided are not legal services and that the protections of the lawyer-client relationship do not apply.
See also New York State Bar Opinion 915 (2012), which addressed the question of whether a law firm and its consulting entity could post reciprocal links on their respective websites.
The New York committee stated that to the extent that the links’ primary purpose is to facilitate the retention of the lawyer or law firm, the advertising rules would apply and any links and related text are to be regarded as advertisements under the applicable rules.
Furthermore, under the New York version of Rule 5.7 (the New York Rules of Professional Conduct are located here), if the rules of professional conduct are deemed to be applicable to the law-related service, in consequence the law-related service’s website must comply with the lawyer advertising rules as well.
For further information on this topic, see the chapter entitled Advertising and Solicitation: Internet (last updated in 2014) as it appears at page 81:551 of the ABA/BNA Lawyers’ Manual on Professional Conduct.
If you have questions about the appropriate use of hyperlinks on law firm websites, consult your local rules, ethics opinions and case law. Your local bar association may also be able to help.