Ethics Violations to Avoid on Law Firm Web Sites

From case studies to core practice-area content to e-mail newsletters, law firms have a variety of Internet-based content tools they can use to inform potential clients of who they are and what they do. Other online marketing tactics, however, fall outside of state ethics rules, as well as the ethical guidelines the American Bar Association (ABA) promotes the states to adopt.

As an attorney working to develop client relationships online, it’s your responsibility to educate yourself about these rules and apply them. One good resource is the ABA Web site, which provides links to the rules governing lawyer advertising, solicitation and marketing in all 50 states: www.abanet.org/ad rules

While the ABA’s prohibition against posting "false and misleading" information on a legal Web site is interpreted differently in various states, there are some established guidelines your law firm can refer to make sure that you are operating ethically on your site. Some of the key areas that your firm should address include:

Illegal communications. If the Internet is anything it’s information-rich — and the unauthorized "borrowing" of content is a recurring problem. Utilizing plagiarized materials, stolen testimonials or copyrighted images from other Web sites is not only unethical, but illegal.

Omissions. Statements such as "No Recovery — No Fee" can be misleading if the client is exempt from legal fees only and is still liable for courts costs or administrative fees. Many states require disclaimers when contingent fee arrangements are publicized. Another common omission on legal Web sites is the posting of positive awards and settlements without a prominently displayed disclaimer on all relevant pages of the site stating that results may vary or that the facts and circumstances of each case dictate the results.

Unjustified expectations. The creation of unjustified expectations is an important consideration that is relevant in all states. Some of the key areas of concern are:

• Many of the same rules that apply to law firm names also apply to Web site domain names. A firm may not, for example, adopt a domain name that creates undue expectations of success (www.winyourlegalcase.com) or that implies a connection with a government agency or charitable legal services organization.
• Some states restrict the use of awards, honors or commendations, as they can create unjustified expectations of success. New Jersey is presently discussing the use of the "Super Lawyers" designation due, in part, to a concern that the designation may create an unjustified expectation that the "Super Lawyer" is better than other lawyers.
  The inclusion of "verdicts and settlements" pages or other descriptions of success can be a powerful marketing tool, but may create unjustified expectations without the inclusion of appropriate disclaimers or factual descriptions. Most states regulate the use of this type of information.
• Testimonials, endorsements or representative-client lists are also prohibited or banned in certain states because they can create expectations of success merely by reference to who has retained the firm in the past.

Statements about a lawyer’s services. Statements that compare one lawyer’s services with another’s run afoul of the ethics rules in many states, if they cannot be factually substantiated or objectively verified. In some states, self-laudatory are also against the rules. Any comparisons to the services of other lawyers — even implied comparisons, such as a law firm that bills itself as "the most experienced in the state" or "the most qualified" — should be avoided or clearly documented, if possible, on your site.

Claims of specialization. While the rules differ state-by-state, a Web site that positions a firm as "experts" or "specialists" may violate ethics guidelines. In most states it is allowable, however, to state that you "limit your practice to" or "concentrate in" your area of expertise.

Failure to include necessary disclaimers. Many states require special disclaimers that govern contingency fees or legal services in general. It is important that the attorney understand all disclaimers required, as well as any size, position, type and color requirements that may exist in certain states. In some states, failure to include necessary disclaimers results in a per se violation of the rules.

Spamming. Spamming is another key ethics concern online. If your firm uses mass e-mail communication, do not include overt marketing messages in the subject line, and give recipients a prominently displayed "opt-out" option to ensure the e-mail is not misconstrued as spam. Some states also require that advertising for legal services be included in the subject line itself.

The ethics guidelines covering spam and some other aspects of Internet-based legal marketing, such as online recordkeeping requirements, are still being fine-tuned. To stay on top of developments in blogging, pay-per-clicks and other emerging areas, the best strategy is to bookmark the ABA Web page that tracks changes in state advertising laws (www.abanet.org/cpr/professionalism/lawyerAd.html) and refer to it frequently for updates.

Conclusion

Law firms can pay a high price for unethical online marketing in disciplinary measures, fee forfeiture and reduced visibility. If your Operating your Web site within the rules can help you avoid ethics repercussions and make the most of this dynamic marketing tool for your law firm.