Ethical Considerations for Promoting Your Practice OnlineBy Richard M. Goehler, Christopher G. Johnson, Kyle Melloan, and Ali Razzaghi
Using the Internet and social media to promote your law practice can be a challenge when ethical codes of conduct haven't kept pace with the evolution of online technology.
Attorneys advertising online can “comply with the rules of each jurisdiction that apply to . . . [us] and impose additional or stricter requirements,” or “take steps to make clear that . . . [we] are not advertising in other jurisdictions.” Cal. Formal Op. 2001-155. But the rules of each jurisdiction, especially when applied to online communications, are conflicting and confusing.
Until they are harmonized, consider a disclaimer.
The California opinion cited above suggests that websites should provide the following:
• an explanation of where the attorney is licensed to practice law;
• a description of where the attorney maintains law offices and actually practices law;
• an explanation of any limitation on the courts in which the attorney is willing to appear; and
• a statement that the attorney does not seek to represent anyone based solely on a visit to the attorney’s website.
The ABA provides a similar list in its Best Practice Guidelines for Legal Information Website Providers.
There is a difference between advertising, which is permitted if done properly, and solicitation, which is not. It is often easier to engage in improper solicitation over the Internet than in person. Model Rule 7.3 states: “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.”
Comment 1 suggests that “[t]here is a potential for abuse inherent in direct in-person, live telephone or real-time electronic contact by a lawyer with a prospective client known to need legal services.” Ethics opinions have struggled to make definitive statements within these gradations of communication, but many have expressed or implied that the more similar the contact with an individual is to a “direct in-person, live . . . contact,” the more strict the rule becomes. When you combine this understanding with the inherent difficulty in determining under Rule 7.3 whether an attorney is “solicit[ing] employment . . . when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain,” a common theme, if not a rule, emerges: “[T]he more legally focused the discussion, the more immediate and interactive the communication and the more it appears the attorney is actively pursuing a would-be client, the more likely it will be perceived that the attorney is engaged in advertising and/or solicitation. . . .” May an Attorney Ethically Participate in Real-Time “Chat” Forums, List Server Discussions and Usenet Forums?, Colorado Bar Ass’n.
Thus, the closer an electronic medium gets to “live, in-person” communication, the more likely it is that the attorney will be found to have solicited the client if other facts suggest solicitation. For example, the West Virginia Lawyer Disciplinary Board found that solicitation could occur in a chat room. Chat rooms create “less opportunity for an attorney to pressure or coerce a potential client than . . . telephone or in-person solicitations,” but because a chat is conducted in real time, it is “potentially more immediate, more intrusive and more persuasive than e-mail or other forms of writing.” Op. 98-03 (1998). Similarly, the State Bar of Michigan found that an attorney would have to follow the state in-person solicitation rules for interactive electronic communication, but that email was covered by the rules governing general and direct mail solicitations. Op. RI-276 (1996).
An attorney who places advertisements or solicits email communications needs to ensure that prospective clients do not interpret this to mean that merely by responding, they can create an attorney-client relationship. The best general practice is to “avoid providing legal advice” in any medium, unless you wish to create an attorney-client relationship. Nev. Formal Op. No. 32 (2005). Thus, attorneys “should not answer specific legal questions from lay people through the Internet unless the question presented is of a general nature and the advice given is not fact-specific.” Ariz. State Bar Op. 97-04 (1997).
Even if an attorney-client relationship is not formed, lawyers may still owe certain duties to prospective clients under Model Rule 1.18 and its state counterparts. Under this rule, “[a] person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.” Is a person a prospective client if he sends you an unsolicited email? What if that person posts on a list-serve to which you belong? A blog? If that person discusses his situation while you are both in the same chat room? If so, you may owe that individual a duty that, at the very least, would prohibit you from representing a client whose interests may be adverse.
“A person who communicates information unilaterally to a lawyer, without any reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship, is not a ‘prospective client.’” Comment 2 to Rule 1.18. One would assume that an unsolicited email would fall into this category, but there is a difference when you voluntarily promote your email address:
If the attorney simply maintains an e-mail address, then declining to extend certain duties of confidentiality to unsolicited e-mail is consistent with the principles . . . [underlying the rules regarding prospective clients]. On the other hand, if the attorney maintains a website without any express limitations on forming an attorney-client relation, or disclaimers explaining that information provided or received by would-be clients will not be held confidential, the analysis changes. The absence of express disclaimers suggests that the attorney may have implicitly “agreed to consider” forming a relation. Under these circumstances, duties of confidentiality may arise. Accordingly, the use of appropriate disclaimers with a website may be essential to prevent unsolicited e-mail from being treated as confidential.
Ariz. Ethics Op. 02-04 (2002).
A San Diego ethics opinion found that an individual cannot form an attorney-client relationship simply by sending an email after finding an attorney’s email address on the state bar’s website. San Diego Ethics Op. 2006-1 (2006). Many authorities, however, agree that unless adequate disclaimers appear on the firm’s website, an individual can become a prospective client by sending an unsolicited email. See Mass. Op. 07-01. Although not always foolproof, disclaimers can negate an individual’s “reasonable expectation” that an attorney is willing to discuss the possibility of taking him or her on as a client.
Generally, ethics rules regarding advertising, solicitation, and the creation of an attorney-client relationship apply to an attorney’s activities on social-networking sites such as Facebook, LinkedIn, and MySpace. For example, disclosing on MySpace that you are an attorney and casually posting messages about legal issues may require you to include all the advertising disclosures and disclaimers required by your particular jurisdiction. Similarly, lawyers informally conversing about legal subjects on Facebook should realize that their conduct may create an attorney-client relationship. This could give rise to inadvertent conflicts, malpractice claims, allegations of improper solicitation of clients, or even assertions that an attorney is improperly practicing law by giving legal advice to individuals in jurisdictions in which the attorney is not licensed.
In sum, the following guidelines may prove to be helpful to attorneys in dealing with the issues of advertising, solicitation, and the formation of the attorney-client relationship as ethics rules for online communications evolve:
• If you maintain a website as an attorney, your website should clearly explain where you are licensed and where you maintain offices;
• Know who your advertising reaches, where your clients are located, and where the effects of your services will likely be felt;
• Avoid publishing information in an electronic forum that would otherwise be unethical if it appeared in other printed media;
• Avoid interactive communications and active pursuit of potential clients in electronic media that more closely resemble “live, in-person” communication;
• Refrain from providing legal advice in any electronic medium unless you intend to create an attorney-client relationship with the recipient of the advice; and
• If you are maintaining a website, include express disclaimers explaining that the information provided or received by the recipient will not be treated as confidential.
Keywords: Litigation, ethics, promoting law practice online, online advertising, online solicitation
Richard M. Goehler and Ali Razzaghi practice law at Frost Brown Todd LLC in Cincinnati, Ohio. Christopher G. Johnson practices in the firm’s Louisville, Kentucky, office, and Kyle Melloan is with the firm’s office in Lexington, Kentucky.
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