The American Bar Association just released a formal opinion to address the issues of how to ethically market legal services using a law firm website, offers examples of how problems can arise from website marketing, and provides guidance on how to avoid them.

The ABA has place a copyright on the Formal Opinion 10-457 Lawyer Websites and we will not be able to provide it to you even though we have a copy and have reviewed the materials.

Here are a few things to consider from our experience. (please do additional research on your own and review the latest versions of the U.S. Supreme Court, ABA, local bar association, and state bar association ethics rules, advertising opinions and court decisions for “up to date” compliance. This is not and should not be construed as legal advice. You should seek legal advice n these matters.

1. Be sure to review all of your current and future law firm website content for violations such as false, or misleading statements.
2. Ensure that your website has statements that includes who wrote the content and who is responsible for the legal website’s content. (Louisiana has already adopted this so it would be wise to add this as well.)
3. Disclaimer – your law firm website should include in the disclaimer the difference between legal information contained in your website content and actual legal advice.
4. Confidentiality/Privacy statements – Most law firm’s do not have a Privacy Statement and they should as a general rule of thumb when it comes to websites publicly accessible via the Web. Make sure that you explain the purpose of the contact form is to provide contact information for a follow up call from your law firm. We recommend that you specifically direct individuals nor to put any case details to avoid various legal issues.
5. User Agreement – Again, added protection since it spells out the “user experience” and what terms the user must agree to or does agree to while using your website.
6. Confidentiality of client information and disqualification of the lawyer due to conflicts of interest also may be implicated by website communication, according to the opinion.
7. When a website visitor submits information about their legal issue, this exchange may create a “prospective client” relationship. This may depend on whether the attorney invited submission of specific details about that person’s case or on how the lawyer responds. Should a “prospective client” relationship be created between the potential law firm client and the law firm (even if the potential client does not retain the law firm) — the lawyer may have a duty to treat the specific details provided by a potential client as confidential. The law firm may also face a conflict of interest which would place prohibitions on representing other individuals involved in the same case or other legal matters.

Again, your law firm could avoid potentially harmful legal issues by posting adequate warnings, disclaimers, legal statements in order to limit, place condition or disclaim any obligation to your law firm’s website visitors.  However, regardless how detailed your disclaimer may be, this protection may be set aside should the responding lawyer act or communicate contrary to the law firm’s website warnings.

The U.S. Supreme Court ruled 15 years ago today that the Florida Bar would be legally authorized to prohibit lawyers in Florida from solicitation accident victims or their family members within 30 days of the accident.  The ruling stated that the Florida Bar Association had substantial interests in protecting the privacy rights of accident victims and the reputations of attorneys.

The U.S. Supreme Court’s opinion back in 1995 was unexpected in light of previous high court rulings on attorney speech.

The bar had passed the rule after conducting a two-year study which showed that many people looked unfavorably on the legal profession using such advertising.

A lawyer-referral service known as Went For It, Inc. and its attorney owner argued that the rule infringed on the First Amendment rights of attorneys and noted that the U.S. Supreme Court had protected “truthful” attorney ads since 1977.

However, a sharply divided Supreme Court reversed the lower courts and reasoned that the public perceived many attorney-solicitation letters as an invasion of privacy that reflected poorly on the legal profession. They cited citizen letters, including one that read: “I consider the unsolicited contact from you after my child’s accident to be of the rankest form of ambulance chasing and in incredibly poor taste.”

The decision led other states to pass similar waiting periods on solicitation letters.

One of the biggest mistakes most law firms make due to time restraints and the push for developing new business is the lack of responsiveness and the neglecting of current client relationships or relationships of the past. LinkedIn.com is a popular business networking tool that has a very good reputation for developing new business for law firms and solving the issue of keeping in touch with client of new and old. One of the best practices we use when using LinkedIn.com to market our clients our law firm internet marketing company is to make sure you send invites to new or potential clients. This is a great way to make sure that #1 – you make a great first impression, #2 – keep in touch with new clients or potential new clients. We find that is a very courteous and well received.

If your firm offers special seminars or educational workshops with potential clients, offering an invitation through social networking sites like LinkedIn.com can make life much easier for reaching out to your prospective clients on both an individual level and on a group level. The feedback our law firm clients consistently receive utilizing this technique is uniformly positive. Also, keep in mind that LinkedIn.com is great for finding colleagues and past clients.  Making a new connection is just like freshening up your your old client referral list.  Our clients have been able to really refine their client referral programs making and revisiting with connections on LinkedIn.com.

Many of our clients used to just simply accept the LinkedIn invitations, believing that this exchange has no more relevance to their practice that the typical “meet and greet.”  However, LinkedIn is an effective marketing tool just as joining a civic group or business networking group.  Be cautious though of using LinkedIn to blindly identify and invite new clients or push unsolicited invitations in the hopes of develop a huge network of referral sources which spans the globe. I realize there are most marketing companies promoting this idea but it is a violation of the rules of professional ethics in all 50 states for your to do just that.

The best way to attract people and clients that have never heard of you before in a manor that keeps you inline with the lawyer advertising rules is to build a very robust profile and create a legal group where people may join. This is a technique that is completely permissible and will allow you to ethically market to a potential audience (now with 60,000,000 members). We typically advise our client to set up groups in which they offer potential or existing clients entry and participation.  This builds value and value enables you to demonstrate expertise and skillful application of legal services.

One of the other benefits of LinkedIn is the relatively simple user interface. This interface makes it very simple to add, edit or remove information within minutes. This application also enables attorneys to connect with new clients, potential clients, past clients, and referral sources daily with just a few minutes of effort. No more having to buy lunches or setting golf outings to make a fresh connection.  The theme of LinkedIn is business communication and everyone gets it.

To discuss some of the best practices your law firm can take to develop a strong presence and create value using LinkedIn. Call the 11 year veterans of Lawyer Success, Inc. You can speak to one of our marketing experts immediately by calling (769) 218-6099.

Proposed ammendments to the Rules of Professional Conduct that govern lawyer advertising and communications by lawyers with prospective clients in the State of Virginia are designed to prohibit attorneys from making any in-person solicitation in all areas of law, not just legal issues stemming from personal injury cases.

A recent decision by the U.S. Court of Appeals for the Second Circuit in Alexander v. Cahill on March 12, 2010 further progressed the idea that the legal industry will see even greater protection of First Amendment rights for lawyer advertising and solicitation of clients. Although the recent decision does not set aside New York’s thirty-day ban on direct unsolicited communications with potential clients in regards to potential personal injury and wrongful death actions, the Court of Appeals did however side a side many prohibitions on lawyer advertising such as the regulation of commercial speech that was purportedly false or deceptive.

To summarize, the Court of Appeals decided that a many of provisions governing lawyer advertising were indeed unconstitutional such as:

1. Client testimonials are not inherently misleading. While they could mislead if they suggest that past results indicate future performance, not all need do so.

2. Portraying a judge in an advertisement is not per se false, deceptive or misleading. What would be of concern is the implication that the attorney has the ability to influence the court improperly.

3. Banning gimmick type of ads such as humorous or “attention grabbing” features is not appropriate: “[q]uestions of taste or effectiveness in advertising are generally matters of subjective judgment.” Indeed, “[g]immicks . . . do not actually seem to mislead.”

4. An outright prohibition on the use of nicknames, mottos or trade names that imply the ability to obtain results in matter is not appropriate. The Court also noted that slogans or nick names such as “The Heavy Hitter” would indeed be prohibited even though it does not appear to be at all misleading.

Although this decision only applies to New York lawyer advertising rules, many states with will feel the pressure to uphold similar rule changes to protect the First Amendment rights of commercial speech.

Friday, January 15, 2010

The age old rules that govern lawyer advertising is having a tough time with the development of new Internet technologies such as Pay Per Click, Social Networking, Blogging and Search Engine Optimization (SEO). This new and rapidly developing form of lawyer advertising has become a hot bed for lawyer ethics debates and even litigation against companies and the lawyers who use their service.

States like Illinois and Connecticut will likely set the standard and policies affecting the remaining states that have not addressed legal ethics rules and newly developed legal marketing solutions provided for through the Web. Connecticut will likely rule in January of 2010 on whether or not services offered by non-attorneys will be able to sell leads or referrals to licensed attorneys.

Lawyer Pay Per Lead programs such as those offered by Total Attorneys (TotalAttorneys.com) are facing increased scrutiny and even litigation by lawyers who oppose buying referrals from non-lawyer sources. The reason for existing ethics rules that bar selling referrals from non-lawyers to lawyers is to prevent the public from making financial gains by advancing litigation.

Other companies such as Ingenio and the major yellow page companies have been ramping up their pay per performance services to include selling leads to attorneys. With law firms spending an estimated $1.5 billion dollars in annual law firm advertising each year, it is likely that “the heavy hitter” or “the strong arm” will be able to continue to operate business as usual.

A New Zealand Criminal Defense lawyer is under heat from the New Zealand Law Society for allegedly using content on his website that claims or suggests that he can get people off drunk-driving charges. The New Zealand Attorney has since taken down the web page which allegedly made such claims.

The state Supreme Court of New Jersey amended Rule of Professional Conduct 7.1(a)(3) requires lawyers to include in ads the name of the rating service and a disclaimer saying, “No aspect of this advertisement has been approved by the Supreme Court.” The recent change takes effect immediately and it allows lawyers to mention their inclusion in Super Lawyers, Best Lawyers in America or Martindale-Hubbell AV rankings.

The changes take effect immediately. November 5, 2009 [See notice to the bar.]

The justices pointed out that New Jersey lawyers will want to read the rule changes carefully before using or promoting their selection by any rating services to ensure that the ads are not misleading to the public. The bottom line is that the ratings services must make an inquiry into the attorney’s fitness. The award or honor may not be offered at a price. And the ads used must describe the rating services methodology, or at least tell the reader where the description can be found.

Today I spoke with a Portland, Oregon law firm that was who questioned me about whether or not it was ethical for a law firm to participate in online attorney directories. After quickly reviewing the Oregon State Bar Ethics rules posted on the state BAR website, I was amazed to see how little restrictions are placed on lawyer advertising in that state.

In fact, as long as you are not paying for referrals based on actually retaining the referral you are pretty much good to go. So Oregon attorneys can list on attorney directories as long as they are paying for the exposure.

INFORMATION ABOUT LEGAL SERVICES

Rule 7.1. Communications Concerning a Lawyer’s Services.

A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services or any prospective client’s need for legal services. A communication is false or misleading if it:

(a) contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading;

(b) is likely to create a reasonable but unjustified expectation about results the lawyer can achieve, or states or implies that the lawyer can achieve results by means that violate the Rules of Professional Conduct or other law;  or

(c) compares the lawyer’s services with other lawyers’ services, unless the comparison can be factually substantiated.

(SCO 1123 effective July 15, 1993; rescinded and repromulgated by SCO 1680 effective April 15, 2009)

ALASKA COMMENT

The Committee revised Model Rule 7.1 to address the situation in which a lawyer might provide misleading information with regard to a potential client’s needs for legal services from a particular lawyer.

COMMENT

[1] This Rule governs all communications about a lawyer’s services, including advertising permitted by Rule 7.2. Whatever means are used to make known a lawyer’s services, statements about them must be truthful.

[2] Truthful statements that aremisleading 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.

[3] 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 a prospective client.

[4] See also Rule 8.4(e) for the prohibition against stating or implying an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law.

Rule 7.2. Advertising.

(a) Subject to the requirements of Rules 7.1 and 7.3, a lawyer may advertise services through written, recorded, or electronic communication, including public media.

(b) A lawyer shall not give anything of value to a person for recommending the lawyer’s services except that a lawyer may

(1) pay the reasonable costs of advertisements or communications permitted by this Rule;

(2) pay the usual charges of a legal service plan or a not-for-profit or qualified lawyer referral service.  A qualified lawyer referral service is a lawyer referral service that has been approved by an appropriate regulatory authority;

(3) pay for a law practice in accordance with Rule 1.17; and

(4) refer clients to another lawyer or a nonlawyer professional pursuant to an agreement not otherwise prohibited under these Rules that provides for the other person to refer clients or customers to the lawyer, if

(i) the reciprocal referral agreement is not exclusive, and

(ii) the client is informed of the existence and nature of the agreement.

(c) Any communication made pursuant to this rule shall include the name and office address of at least one lawyer or law firm responsible for its content.

(SCO 1123 effective July 15, 1993; rescinded and repromulgated by SCO 1680 effective April 15, 2009)

COMMENT

[1] To assist the public in obtaining legal services, lawyers should be allowed to make known their services not only through reputation but also through organized information campaigns in the form of advertising. Advertising involves an active quest for clients, contrary to the tradition that a lawyer should not seek clientele. However, the public’s need to know about legal services can be fulfilled in part through advertising. This need is particularly acute in the case of persons of moderate means who have not made extensive use of legal services. The interest in expanding public information about legal services ought to prevail over considerations of tradition. Nevertheless, advertising by lawyers entails the risk of practices that are misleading or overreaching.

[2] This Rule permits public dissemination of information concerning a lawyer’s name or firm name, address and telephone number; the kinds of services the lawyer will undertake; the basis on which the lawyer’s fees are determined, including prices for specific services and payment and credit arrangements; a lawyer’s foreign language ability; names of references and, with their consent, names of clients regularly represented; and other information that might invite the attention of those seeking legal assistance.

[3] Questions of effectiveness and taste in advertising are matters of speculation and subjective judgment. Some jurisdictions have had extensive prohibitions against television advertising, against advertising going beyond specified facts about a lawyer, or against “undignified” advertising. Television is now one of the most powerful media for getting information to the public, particularly persons of low and moderate income; prohibiting television advertising, therefore, would impede the flow of information about legal services to many sectors of the public. Limiting the information that may be advertised has a similar effect and assumes that the bar can accurately forecast the kind of information that the public would regard as relevant. Similarly, electronic media, such as the Internet, can be an important source of information about legal services, and lawful communication by electronic mail is permitted by this Rule. But see Rule 7.3(a) for the prohibition against the solicitation of a prospective client through a real-time electronic exchange that is not initiated by the prospective client.

[4] Neither this Rule nor Rule 7.3 prohibits communications authorized by law, such as notice to members of a class in class action litigation.

Rule 7.2 Advertising

A lawyer who advertises concerning legal services shall comply with the following:

(a) Subject to the requirements of Rule 7.1, a lawyer may advertise services through public media, such as a telephone directory, legal directory, newspaper or other periodical, outdoor displays, radio, television, or written communication not involving solicitation as defined in Rule 7.3.

(b) A true copy or recording of any such advertisement shall be delivered or mailed to the office of the general counsel of the Alabama State Bar at its then current headquarters within three (3) days after the date on which any such advertisement is first disseminated; the contemplated duration thereof and the identity of the publisher or broadcaster of such advertisement, either within the advertisement or by separate communication accompanying said advertisement, shall be stated. Also, a copy or recording of any such advertisement shall be kept by the lawyer responsible for its content, as provided hereinafter by Rule 7.2(d), for six (6) years after its last dissemination.

(c) A lawyer shall not give anything of value to a person for recommending the lawyer’s services, except that a lawyer may pay the reasonable cost of any advertisement or written communication permitted by this rule and may pay the usual charges of a not-for-profit lawyer referral service.

(d) Any communication made pursuant to this rule shall include the name of at least one lawyer responsible for its content.

(e) No communication concerning a lawyer’s services shall be published or broadcast, unless it contains the following language, which shall be clearly legible or audible, as the case may be: “No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers.”

(f) If fees are stated in the advertisement, the lawyer or law firm advertising must perform the advertised services at the advertised fee, and the failure of the lawyer and/or law firm advertising to perform an advertised service at the advertised fee shall be prima facie evidence of misleading advertising and deceptive practices. The lawyer or law firm advertising shall be bound to perform the advertised services for the advertised fee and expenses for a period of not less than sixty (60) days following the date of the last publication or broadcast.

Rule 1-400. Advertising and Solicitation

(A) For purposes of this rule, “communication” means any message or offer made by or on behalf of a member concerning the availability for professional employment of a member or a law firm directed to any former, present, or prospective client, including but not limited to the following:

(B) For purposes of this rule, a “solicitation” means any communication:

(C) A solicitation shall not be made by or on behalf of a member or law firm to a prospective client with whom the member or law firm has no family or prior professional relationship, unless the solicitation is protected from abridgment by the Constitution of the United States or by the Constitution of the State of California. A solicitation to a former or present client in the discharge of a member’s or law firm’s professional duties is not prohibited.

(D) A communication or a solicitation (as defined herein) shall not:

(E) The Board of Governors of the State Bar shall formulate and adopt standards as to communications which will be presumed to violate this rule 1-400. The standards shall only be used as presumptions affecting the burden of proof in disciplinary proceedings involving alleged violations of these rules. “presumption affecting the burden of proof” means that presumption defined in Evidence Code sections 605 and 606. Such standards formulated and adopted by the Board, as from time to time amended, shall be effective and binding on all members.

(F) A member shall retain for two years a true and correct copy or recording of any communication made by written or electronic media. Upon written request, the member shall make any such copy or recording available to the State Bar, and, if requested, shall provide to the State Bar evidence to support any factual or objective claim contained in the communication.

(Former rule 1-400 (D)(6) repealed by order of the Supreme Court effective November 30, 1992. New rule 1-400 (D)(6) added by order of the Supreme Court effective June 1, 1997.)

Standards:

Pursuant to rule 1-400(E) the Board of Governors of the State Bar has adopted the following standards, effective May 27, 1989, unless noted otherwise, as forms of “communication” defined in rule 1-400(A) which are presumed to be in violation of rule 1-400:

(Amended by order of Supreme Court, operative September 14, 1992. Standard (5) amended by the Board of Governors, effective May 11, 1994. Standards (12) – (16) added by the Board of Governors, effective May 11, 1994.)

One of Louisiana’s largest lawyer advertisers, New Orleans attorney Morris Bart joined forces with Lafayette attorney William Gee and special interest group Public Citizen Inc to sue the Louisiana Attorney Disciplinary Board in response to the State’s Supreme Court new rules to restrict attorney advertising in the State of Louisiana.
 

Public Citizen Inc., is a consumer rights advocacy organization that feels the right of consumers right to choose and be informed are being impeded. The petition against the board was filed last Tuesday in order to reverse the decision tightening the lawyer advertising rules.

The lawyer advertising rules are to take effect this December but the rules were ok’d back in July of this year. The attorney advertising rule changes were designed to clean up the content and forms of lawyer advertising.

One of the major rule changes includes the forbidding of “promising results.” All forms of advertising will also have to be submitted to the bar association committee for review. This review of the lawyer advertisements is meant to clean up some of the offense legal ads to protect the integrity of the legal practice.  Other issues include using actors, testimonials and re-enactments.

The lawsuit claims that the new lawyer advertising bar rules will violate the First and Fourteenth Amendments to the U.S. Constitution.

The other issues with the lawyer advertising rules is that it may go further. There is talk about not allowing law firms to use logos or slogans. Morris Bart, a personal injury lawyer in New Orleans, has built his law firm’s brand by using  slogans such as, “We can get you paid. One click, That’s it” on his website.

Well, if there is a will there is a way.

James

Back in August, New Jersey high court has order all parties involved in the lawyer advertising dispute until September 15th of this year to file their responses to the special master’s report. After that the court will then hear arguments before making a ruling that could effect lawyers from using the “SuperLawyers” logo and claims on marketing and advertising materials.


“Super Lawyers” is a legal publication and website that has expanded their business model through the 50 Untied States. The issue that is being challenge and could potentially effect ethics rulings in other states, is the idea that a “Super Lawyer” or “SuperLawyer” rating implies that a lawyer with said designation would be superior amongst other New Jersey lawyers.

In previous challenges, the court said that a lawyer may use the “Super Lawyer” designation along with other rankings or ratings such as the Martindale Hubble Peer Review Ratings.  The pro-SuperLawyers side believes that the rating services provide the consumer with more information to make better choices about hiring a lawyer.

My opinion is that being a “Super Lawyer” is “super” misleading to consumers. The nomination process is flawed and you have to pay money to use the SuperLawyer designation. In my opinion, that alone loses it’s credibility.

Should an attorney decide to tout the “Super Lawyers” rating or award, they should do the right thing by explaining that they do pay a fee to belong to the organization.

James

Louisiana Supreme Court Repeals and Reenacts New Lawyer Advertising Rules
Effective Dec.1, 2008

Louisiana attorneys should take note of the new and updated requirements for advertising that will take effect December 1st in 2008. Here is a copy of the new rules. Louisiana Lawyer Advertising Addendum 2008