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Welcome message and site overview •  This is an advertisement  •  Notices and disclaimers

Ethical Risks of Law Firm Websites and Blogs:
Staying on the Right Side of the Ethics Line

A CLE presentation for Strafford Publications, Inc.

Benjamin Cowgill, Counselor and Attorney at Law

2333 Alexandria Drive, Lexington, Kentucky 40504

Telephone: (859) 225-5236  •  Fax: (859) 225-5237

E-mail: ben@cowgill.com

Web site: cowgill.com

CLE material only print this page

This page provides reference material for those who have registered to participate in a May 29, 2007 teleseminar sponsored by Strafford Publications. 

Reference material for "Ethical Considerations Regarding Attorney-Client Online Communications"

    General Considerations Regarding Law Firm Websites and Blogs

A.   What ethical rules apply to attorneys’ use of websites as a way to obtain clients?

1.      General provisions regarding dishonest conduct

ABA Model Rule 8.4 (implemented in some form in virtually all jurisdictions):

(1)    Paragraph (a): "It is professional misconduct for a lawyer to violate or attempt to violate the rules of professional conduct, knowingly assist or induce another to do so, or do so through the acts of another."
(2)    Paragraph (c): "It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation."

2.      Advertising rules applicable to websites

a)      General principles incorporated in the rules of most states

(1)     ABA Model Rule 7.1: "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."
(2)    ABA Model Rule 7.2:
(a)      Paragraph (a): "Subject to the requirements of rules 7.1 and a 7.3, a lawyer make advertised services through written, recorded or electronic communication, including public media."
(b)      Paragraph (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."

b)    State-specific advertising rules

(1)     Online information regarding state advertising rules:
(a)     "Links to State Ethics Rules Governing Lawyer Advertising, Solicitation and Marketing," prepared by the ABA Center for Professional Responsibility, at http://www.abanet.org/legalservices/clientdevelopment/adrules/
(b)     "Differences Between State Advertising and Solicitation Rules and the Model Rules of Professional Conduct (Sept. 1, 2006)," prepared by the ABA Center for Professional Responsibility, at http://www.abanet.org/cpr/professionalism/State_Advertising.pdf
(2)     Typical requirements::
(a)    Filing and record-keeping requirements
(b)    Required contents

i)       Conspicuous labeling of the communication as an advertisement

ii)       Conspicuous identification of a licensed attorney within the jurisdiction

(c)     Specific prohibitions:

i)       Use of actors and props

ii)       Representations about prior success

3.       Prohibitions against solicitation

a.       General principles incorporated in the rules of most states::

(1)      ABA Model Rule 7.3  :
(a)      Paragraph (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.
(b)      Paragraph (b): "A lawyer shall not solicit professional employment from a prospective client by written, recorded or electronic communication or by in-person, telephone or real-time electronic contact even when not otherwise prohibited by paragraph (a)  if: (1) the prospective client has made known to the lawyer a desire not to be solicited by the lawyer; or (2) or  the solicitation involves coercion, duress or harassment."
(2)    Special prohibitions relating to disasters:
(a)      Federal law:

Example: Aviation Disaster Family Assistance Act of 1996, 49 USC § 1136(g)(2):

“Unsolicited communications -- In the event of an accident involving an air carrier…no unsolicited communication concerning a potential action for personal injury or wrongful death may be made by an attorney (including any associate, agent, employee, or other representative of an attorney) or any potential party to the litigation to an individual injured in the accident, or to a relative of an individual involved in the accident, before the 45th day following the date of the accident.”
(b)      State laws:

Example:  Kentucky Supreme Court Rule  [SCR] 3.130(7.09)(4): "Any communication pursuant to rule 7.029 (3) [to wit, "any "written, recorded or electronic communication from a lawyer or soliciting professional employment from a prospective client known or reasonably believed to be in need of legal services in a particular matter, and with whom the lawyer has no family or prior professional relationship"] shall be sent to those prospective clients who have been involved in a disaster as defined in SCR 3.130 (7.60) Article III (1) only after 30 (30) days had elapsed from the occurrence of the disaster."

4.     Duties to prospective clients that may be triggered by the receipt of e-mail inquiriess

a)       ABA Model Rule 1.18:

(1)      Paragraph (a): "A person who discusses with a lawyer of the possibility of forming a client-a lawyer relationship with respect to a matter is a prospective client."
(2)      Paragraph (b): "Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation, except as Rule 1.9 would permit with respect to information of a former client."
(3)      Paragraph (c): "A lawyer is subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d). ..."
(4)      Paragraph (d): "When the lawyer has received disqualifying information as defined in paragraph (c), representation is permissible if: (1) both the affected client and the prospective client have given informed consent, confirmed in writing, or: (2) the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective clients; and (i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and (ii) written notice is promptly given to the prospective client."

B.        How can attorneys and law firms implement those rules?

 1.     Review the rules of every jurisdiction in which the firm practices

 2.     Obtain advance review and approval if required or if possible

 3.      Include disclaimers, notices and "terms of use" as appropriate to the nature of the firm's practice, the content of the website and the type of e-mail contact that is reasonably anticipated

         

C.                  What is the impact of the Internet's ability to reach prospective clients outside of an attorney's jurisdiction??  Does this change the application/implementation of the rules concerning web-based advertising?

1.       The attorney advertising rules of most states apply to all advertisements of legal services that are directed to persons within the jurisdiction

2.       The website should therefore include:           

a.       A clear statement of the jurisdictions in which the lawyer or firm practices; and

 b.      A clear statement that the site has not been posted on the Internet for the purpose of advertising the firm's services in which it is not authorized to practice.

D.      How can a firm deal with uncertainties regarding choice-of-law rules?

A law office website should comply with the requirements of (1) all jurisdictions in which the firm practices, and (2) all jurisdictions from which the firm reasonably expects to attract clients.

 

Links to other on-line materials of interest:

(Note: All of this material was found using the Legal Ethics Search Engine on this site.)

Ethical considerations regarding law firm websites and weblogs

State rules and regulations regarding advertising and solicitation

 

© 2006 Benjamin Cowgill All rights reserved

 


NOTES

This is a CLE article, not legal advice.

This article discusses issues that are highly fact-dependent and questions that can be approached in a variety of ways. It also addresses matters on which reasonable minds may differ and describes situations that necessarily require the exercise of good judgment.

Consequently, the author makes no representation about the "correct" interpretation of any rule of law discussed in this article or any warranty about how that rule will be applied to any specific set of facts. Likewise,  the information contained in this article should not be construed as a recommendation regarding the course of action anyone should pursue in a particular situation or as a prediction about what any decision-maker will do.

In short, any reliance upon this article is a matter of choice that lies entirely within the considered judgment of the reader. The reader is encouraged to seek the assistance of an attorney competent in the field of legal ethics regarding any situation that involves, or may involve, a serious issue of compliance with the Rules of Professional Conduct.

 

Benjamin Cowgill, Counselor and Attorney at Law

2333 Alexandria Drive, Lexington, Kentucky 40504        (859) 225-5236

The content of this page is provided for use as general information only.  Nothing on this page should be construed as legal advice or legal opinion regarding any specific set of facts or circumstances.  Any links to other websites are provided as a convenience for persons engaged in research. This site makes no warranties regarding the content of other websites.

© 2006 Benjamin Cowgill

This page was last updated on 05/29/2007