When we posted 100 Internet Marketing (SEO, Inbound) Tips for Law Firms, our intention was to provide a quick highlight of some of the most common issues that come up in marketing a law practice online.
We realize that many of these tips aren’t that useful without some further explanation. So, we figured we would expand on them one-by-one.
#1 Review your state’s Rules of Professional Responsibility especially as they pertain to advertising and communications about a lawyer’s services.
As you should know, as a lawyer, you are bound to your state’s Rules of Professional Responsibility. And while you might not agree with, or even completely understand, all of the rules, you should work to adhere to them. After all, your license and reputation might depend on them.
In the context of online marketing, there are several rules that may come into play.
Instead of trying to address every rule on a state-by-state basis, I’m going to work with the ABA’s Model Rules as a guideline for discussion.
Before we dive into the individual rules, there’s a general guideline that I think is worth bearing in mind for anything you post to the web:
Assume that it’s public and permanent.
Even with privacy settings in place, you should assume that the “stuff” you put into the web ether is public and permanent (or that it might become public and permanent).
If you keep that guideline in mind, you’ll do well to avoid some of the most common online legal marketing ethics blunders.
Rule 1.6 Confidentiality Of Information
One of the first issues that can arise when marketing your practice online is a lawyer’s duty to protect their client’s confidential information.
This issue comes up when lawyers post, tweet, comment or otherwise communicate information relating to the representation of a client on the web.
The starting point here is simply to avoid discussing information relating to representation.
The exception to the general rule is obtaining a client’s informed consent.
So, before posting anything online that might reveal a client’s confidential information, discuss it with your client. If, after being properly informed, your client gives you consent, I recommend getting it in writing.
Rule 3.6 Trial Publicity
Another issue that can be triggered by publishing online is the restriction on statements that have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.
One of the most obvious exceptions under the model rules is information contained in a public record.
Posting stuff that even presents a potential risk of prejudicing an adjudicative proceeding is simply unwise. There’s usually not a lot to gain, and the potential for harm is great.
Rule 5.5: Unauthorized Practice of Law; Multijurisdictional Practice of Law
At first glance, it might not be completely obvious that this rule might be triggered by your online marketing.
The internet has “knocked down the walls.”
People can and access the “stuff” you put online across state and country boundaries. This can present all sorts of UPL issues.
Some of the most common relate to the “generally not practicing law in jurisdictions to which you are not admitted,” “establishing a systematic and continuous presence,” and “holding out to the public admission to practice” provisions.
This issue typically comes up when lawyers participate on online legal forums and question and answer sites. However, you should be mindful of this with all online communications (including blog posts, comments, tweets, status updates, etc).
To avoid violating this rule, the simplest advice is simply not to make any comments relating to legal questions that might arise in a jurisdiction to which you are not admitted to practice.
If you choose to provide general information that is not intended to be applied to a specific situation, you should say that. You should also consider additional disclaimers that make clear to which jurisdictions you are admitted. Even better, just don’t comment on issues outside your jurisdiction.
On your own web properties (websites, blogs, profiles, etc), be sure to include appropriate disclaimers that clearly describe where you are licensed to practice and where you have offices.
Rule 7.1: Communication Concerning a Lawyer’s Services
Now for the biggie (not that the others are less important).
This is the rule that is both most commonly misunderstood and violated. Here’s the model rule (at time of posting):
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.
Here’s the simple advice:
Don’t post “stuff” that isn’t true or that is misleading.
You will undoubtedly be able to conceive of many examples that are more nuanced. After all, the very nature of legal marketing and advertising is to communicate the value of one’s legal services for the purpose of persuading them to hire you.
And the line between persuasive and misleading can get a bit blurry.
Your safest bet is to stick to objectively verifiable facts. If it’s true, and can be substantiated, you’re moving in the right direction. However, in some jurisdictions, even true and verifiable facts aren’t guaranteed to be permissible. In fact, per the comment to the model rule:
 Truthful statements that are misleading are also prohibited by this Rule. A truthful statement is misleading if it omits a fact necessary to make the lawyer’s communication considered as a whole not materially misleading. A truthful statement is also misleading if there is a substantial likelihood that it will lead a reasonable person to formulate a specific conclusion about the lawyer or the lawyer’s services for which there is no reasonable factual foundation.
 An advertisement that truthfully reports a lawyer’s achievements on behalf of clients or former clients may be misleading if presented so as to lead a reasonable person to form an unjustified expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client’s case. Similarly, an unsubstantiated comparison of the lawyer’s services or fees with the services or fees of other lawyers may be misleading if presented with such specificity as would lead a reasonable person to conclude that the comparison can be substantiated. The inclusion of an appropriate disclaimer or qualifying language may preclude a finding that a statement is likely to create unjustified expectations or otherwise mislead the public.
Again, review your state’s rules. Also, if you’re not sure, you might get in touch with someone at state bar. Most bars have ethics hotlines, staff and online information that can help clarify what’s permissible in your jurisdiction.
If you’re working with a web designer, copywriter or anyone else to publish stuff online, make sure that you retain complete editorial control and have the opportunity to review pages, posts, etc, before publishing. Ultimately, it’s your responsibility to meet your professional obligations.
Rule 7.2: Advertising
First, this rule serves as an express reminder that, without regard to taste, lawyers may advertise their services. However, the right to advertise is not without restrictions.
Second, since these restrictions vary so greatly from one jurisdiction to another, it’s really not worth getting into many of the specifics of the model rule.
The big one to remember is that lawyers can’t pay non-lawyers to recommend the lawyer’s services.
What this really means, and how it applies, remains the subject of much debate.
Pay-per-click advertising, Pay-per-lead advertising, Groupon-style advertising and various other forms of online advertising have greatly muddied the waters.
However, it’s worth noting that more and more jurisdictions are providing guidance on these arrangements and, very generally speaking, with restrictions, they are being found permissible. And in fact, the comment to the model rule addresses some of these arrangements.
Rule 7.3: Direct Contact with Prospective Clients
First, as a general proposition, if you’re using online social networks to solicit clients, you’re doing it wrong.
Second, it’s important to understand how your state defines a solicitation. According to the model rule:
 A solicitation is a targeted communication initiated by the lawyer that is directed to a specific person and that offers to provide, or can reasonably be understood as offering to provide, legal services. In contrast, a lawyer’s communication typically does not constitute 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 Internet searches.
The two big takeaways here are:
- Initiated by the lawyer; and
- Targeted communication versus directed to the general public.
It stands to reason that if someone requests information about your services, it can’t be a solicitation to respond.
The line between targeted communication and a general advertisement can be a bit more blurry on the web.
Really though, if you understand inbound marketing, this becomes much less of an issue. In a nutshell, if you’ve adopted an inbound approach, you’re going to find yourself responding to requests for information, not initiating them.
Rule 7.4: Communication of Fields of Practice & Specialization
If your jurisdiction doesn’t have official legal certifications, avoid all adjectives that might imply that you are a “specialist.”
Instead, refer back to objective facts. Sure, communicate in which fields of law you practice and which you do not.
Depending on your jurisdiction, you might choose phrases like, “has experience in,” “focuses on” or “limits practice to.”
It bears repeating that this is just a discussion of some of the most common legal web marketing ethics issues that we see arise in the context of the ABA’s model rules.
Learn your state’s rules! If you’re confused, talk to someone at your state bar. Make sure that anyone you work with understands these rules and reserve ultimate control of everything that’s posted!
What legal web marketing ethics issues have run into? How have you addressed them? What advice do you have for lawyers who market their practices online?
One tip down, 99 to go.