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
this page is located at:
http://cowgill.com/websites_and_blogs.htm
Bookmark this page in Internet Explorer
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 "
-
ABA Formal Ethics Opinion 99-413 ("Protecting the Confidentiality of
Unencrypted E-mail"), available online at:
http://www.abanet.org/cpr/fo99-413.html
-
"ABA Holds that Lawyers Can Ethically Examine Hidden Metadata in Electronic
Documents," a blog post at KentuckyLegalEthics.com (with links to ABA
resources), at:
http://cowgill.blogs.com/legalethics/2006/11/aba_holds_that_.html
-
ABA Model Rules of Professional Conduct, Rule 1.18 - "Duties to Prospective
Clients," available on-line at:
http://www.abanet.org/cpr/mrpc/rule_1_18.html
-
"Attorney-Client Relationships in Cyberspace:
The Peril and the Promise," by Catherine J. Lanctot, originally published in
Duke Law Journal (49 Duke L. J. 147), available on-line at:
http://www.law.duke.edu/shell/cite.pl?49+Duke+L.+J.+147
-
"Professional Responsibility and Confidentiality
Considerations When Using the Internet" by Mary Frances Lapidus, P.C., at:
http://legalethics.com/articles.law?auth=lapidus.txt
-
"Links to State Bar Opinions and Related Articles About E-mail
Confidentiality," by Professor David C. Hricik, at:
http://www.hricik.com/email.html
-
"Making Sense of Metadata: A Mega-List of Links for Lawyers,"
a blog post at KentuckyLegalEthics.com, available at:
http://cowgill.blogs.com/legalethics/2006/03/making_sense_of.html
-
"To Whom it May Concern: Using Disclaimers to
Avoid Disqualification by Receipt of Unsolicited E-mail from Prospective
Clients," by Professor David C. Hricik, at
http://www.hricik.com/eethics/disclaimer.doc"
-
"The Worlds of Ethics and Technology Collide:
The ethics rules for electronic communication" by Kathryn A. Thompson, at:
http://www.legalassistanttoday.com/issue_archive/feature1_so05.htm
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.
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