The Ethics of Online Marketing

As ever-increasing numbers of the legal profession seek to expand their clienteles through Internet-based advertising, the Web site has become the key to a strong Internet presence and marketing plan. While it is important that a legal Web site has the correct mix of legal information, attorney biography and marketing copy, it is even more important that lawyers who seek to enter the online realm understand the ethical guidelines that govern the design and content elements that can (and cannot) be included in their sites.

Much of this regulation is, of course, state-specific. In every state, professional responsibility rules govern the ethical conduct of attorneys. Each state has rules that govern the interactions that the legal profession has with clients, adversaries, courts, potential clients and the public. All states also have rules specific to attorney advertising. Many follow the American Bar Association (ABA) Model Rules of Professional Responsibility (www.abanet.org/cpr/mrpc/mrpc_toc.html) or a variation thereof.

In almost all instances, the ethical standards governing print ads, brochures and radio spots also apply to online marketing activities.

Even more than print, radio, TV and brochures, the Internet has delivered the information marketplace envisioned in Bates v. State Bar of Arizona, the U.S. Supreme Court decision that lifted the ban on attorney advertising. Attorneys can go beyond sound bites to provide substantive information about their law firm, including areas of practice, factual results (provided state-specific disclaimer requirements are met), attorney-authored articles and FAQs. For consumers, meanwhile, the Web makes it much easier to research issues and find legal representation.

It is imperative to understand that it is your responsibility to ensure that your Web site complies with the state ethics guidelines that apply to the online information you are disseminating.

Recent polling shows that more Americans use the Internet to find an attorney than any other source. By familiarizing yourself with online marketing ethics, you can protect your firm from running afoul of the state ethics committee while taking advantage of this dynamic marketing tool.

What Information Is Regulated — and Who Regulates It?
With limited exceptions, most states regulate as "attorney advertising" any communication that is designed to attract clients. This should not be confused with "solicitation." Solicitation is direct communication with a person (not a close friend, former client or relative) known to be in need or thought to be in need of legal services. While the rules and definitions vary by state, solicitation is generally much more restricted than broad legal advertising.
It is important to note that the attorney advertising definition may not apply to all communications made in order to generate business. In some states, ethics rules may only come into play when the message indicates that professional services are available for hire. As a good rule, a communication that both proposes hiring an attorney and discusses non-commercial issues will most likely be regulated.

While the ABA promotes adoption of its Model Rules prohibiting "false and misleading" information, state-by-state differences still exist on the detailed interpretation. Most state rules apply to lawyers whose communications originate within the state or to outside communications targeted at potential clients within the state.

The key point to remember is that in addition to following federal laws governing spam and other online abuses, attorneys who seek to serve clients nationwide or in multiple state jurisdictions should understand and comply with each state’s attorney advertising rules.
The ABA provides three helpful resources for understanding each state’s ethics rules:

1. Links to the rules governing lawyer advertising, solicitation and marketing in all 50 states: www.abanet.org/adrules
2. An ethics page that tracks new developments in state advertising laws: www.abanet.org/cpr/professionalism/lawyerAd.html
3. A 50-state comparison to the ABA Model Rules that describes the content, design and disclaimer requirements unique to each state: www.abanet.org/cpr/professionalism/State_Advertising.pdf

In the day-to-day development of a Web site, one way to address this ethical requirement is to be as specific as possible — in the content your firm posts and in writing title tags and other HTML coding — about where your law firm is licensed to practice and the geography where your site is targeted. Another good idea: adding a disclaimer to the Web site that specifies the states where your firm does business.

Targeting a geo-graphic niche limits your exposure to multiple sets of ethics rules. Any law firm or lawyer that advertises "representation nationwide" on its Web site, on the other hand, needs to consider ethics burdens carefully.

Why It Matters
The cost of unethical online client development can include exposure to discipline, malpractice implications, fee forfeiture — even the expense of changing your brand. If your firm was directed to change its domain name, for example, your Web site would no longer be indexed in search engine rankings. It could take months to re-establish it and rebuild traffic. Even if your law firm is forced to take its Web site down for changes, for example, the lack of an online presence can adversely affect your search engine rankings.

Remember that whether you build and maintain your own Web site, or hire an outside consultant to handle it for you, you are ultimately responsible for compliance with the advertising rules in each state.

The Internet is one of the most powerful tools attorneys have to generate leads and develop client relationships. Its importance will only continue to increase. Knowing and observing the ethical guidelines, including the rules that apply in the states where clients are being sought, is a smart investment in the long-term growth of your client base.