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ABA Ethical Opinion Focuses on Attorney Websites

By William J. Cantrell, Litigation News Associate Editor – December 6, 2010

The ABA Standing Committee on Ethics and Professional Responsibility has issued an ethical opinion providing guidance for implementing and maintaining attorney websites to ensure compliance with the Model Rules of Professional Conduct. As Formal Opinion 10-457 [PDF] cautions, attorneys must still consult the controlling laws and rules applicable to attorney websites in their individual jurisdictions.


Website Disclaimers
The opinion states that appropriate warnings or cautionary statements can successfully disclaim an attorney’s obligations to website visitors. To be effective, website disclaimers must be “reasonably understandable, properly placed, and not misleading.”


Still, disclaimers will not save an attorney from potential ethical pitfalls when his or her website is not adequately maintained and updated. “A lawyer who neglects a website and allows inaccurate content to remain, potentially misleading the public, will not necessarily be saved by even the most detailed disclaimer,” notes Paul E. Lehner, Chicago, cochair of the ABA Section of Litigation’s Solo and Small Firm Committee.


Best Practices for Website Content and Design
To avoid false or misleading statements on attorney websites, the opinion reminds lawyers they should always ensure “legal information” posted on websites “is accurate and current,” regularly update biographical and contact information, and obtain informed client consent before disclosing a client’s name. “Legal information,” as used in the opinion, could include blog entries, “frequently asked questions” and answers, and other narratives posted on attorney websites. The opinion cautions that warnings should be provided to website visitors that the legal information provided is general in nature and may not be relied on as legal advice.


The opinion notes that lawyers have the ability “to control features and content so as to invite, encourage, limit, or discourage the flow of information to and from website visitors.” It warns that some website interactions about legal advice or representation could turn a website visitor into a “prospective client.” A “prospective client” is defined by Model Rule 1.18 as a person who “discusses” with a lawyer “the possibility of forming a client-lawyer relationship.”


The opinion uses the example of a website that specifically invites submission of a personal inquiry about a proposed representation by using a “website electronic form.” These types of forms are becoming common for attorneys representing plaintiffs in personal injury cases. According to the opinion, any response to such a form may begin a “discussion” about the proposed representation under Rule 1.18. Such a form, absent cautionary language, would invite the submission of confidential information.


If a website interaction creates a prospective client-lawyer relationship under Rule 1.18, an attorney quickly will be confronted with several potential ethical issues. These issues could include prohibitions on the disclosure of information transmitted by the website visitor and potential disqualification in subsequent litigation.


Differences Between State Rules and the ABA Opinion
The opinion is not a harmonization of state rules governing attorney websites. For instance, although it does not directly prohibit website client testimonials, several states do.


“Personally, I don’t think a case has been made that allowing a client to say something nice about a lawyer will somehow impel other potential clients to make bad decisions,” says Gregory R. Hanthorn, Atlanta, chair of the Programs Subcommittee of the Section of Litigation’s Ethics and Professionalism Committee. “But that’s a problem all lawyers face once states outright ban written or web-based ‘testimonials.’”


Keywords: litigation, ethics, attorney websites, American Bar Association, Model Rules on Professional Conduct


 

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