Lawyers USA Your Business Partner

As state and local bar associations struggle to adapt old ethics rules to new forms of legal marketing, some jurisdictions are closely scrutinizing law firm websites for ethical violations.

For example, in Virginia the ethics counsel of the state bar is taking a proactive role. He has sent out numerous non-compliance letters to attorneys warning them about ethical violations on their websites.

“We police this stuff. We’re keying in and focusing on the content of statements and claims made by law firms on their websites,” said Jim McCauley, ethics counsel for the state bar in Richmond, Va.

Small law firms may be particularly vulnerable.

“A small firm lawyer doing his or her own marketing doesn’t necessarily know the rules,” said Deborah Jeffrey, a legal ethics attorney with Zuckerman Spaeder in Washington, D.C.

Since websites are by nature a multi-jurisdictional animal, some states are taking an aggressive stance in protecting in-state lawyers from out-of-state competition.

“A big issue is the assertion by some state bars that simply because an Internet advertisement or website can be accessed from any state in the country, it constitutes the unauthorized practice of law. It’s come up where lawyers say, ‘We can represent you wherever you are located,’” said Ellen Pansky of Pansky Markle Ham in South Pasadena, Calif.,  former president of the Association of Professional Responsibility Lawyers.

She said that attorneys in California, for example, have received letters from the Florida state bar complaining about their websites.

Advertising rules vary from state to state. Some states, like Florida, have special disclaimer requirements for lawyer advertising; New York requires that every page state it is an advertisement. Other states ask lawyers to submit advertisements for approval or require an attorney to save copies of every advertisement.

“It’s a patchwork quilt of inconsistent regulations,” said Diane Karpman of Karpman & Associates in Beverly Hills, Calif., who represents attorneys in ethics matters.

Here are some of the common ethical issues for legal websites:

Misleading statements

This is the largest area of concern for website content, because it can cover a range of issues, from characterization of your practice to attorney bios to statements about past cases.

Individual state bars are monitoring content with more intensity, said David Rosenfeld, a legal ethics attorney in Alexandria, Va.

For example, many states regulate a lawyer’s bragging rights.

“Comparative statements about fees, bragging that you’re the best, fastest, brightest, sharpest, most successful or most experienced” can be considered misleading, said McCauley.

Another trap is making specific references to past cases or clients, such as a million dollar verdict against XYZ Corp. or the largest personal injury verdict in your state.

Some states take the position that advertising specific case results is inherently misleading; other states prohibit mentioning the name of a client without the client’s consent.

Generally, it is possible to get around this problem by adding a disclaimer about results being dependent on various factors in an individual case.

However, there are still questions about how “visible, up-front and in-your-face” a disclaimer must be in order to sufficiently inform a consumer, Rosenfeld said.

Attorney biographies are another area with ethical traps, particularly for statements about “specialization” in practice areas.

“People tend to say things in website biographies that they don’t think have to comply with advertising rules. But in certain jurisdictions, for example, you can’t say you specialize unless you are certified,” said Jeffrey.

The unauthorized practice of law in out-of-state jurisdictions is another “very big issue,” and it can be difficult to sort out what a lawyer can say about the law in a state where he or she is not licensed, Rosenfeld said.

“If you’re merely providing a non-editorialized link [to out-of-state information], then it’s no different than if a consumer is going to the website of the bar of the state of Georgia. But when you say to a client, under the law of Georgia, you have to file a claim within two years, then you are stepping close to or over the line of unauthorized practice of law,” Rosenfeld said.

If your website says that a lawyer is a “member” of an office that is out of state, make sure that lawyer is admitted to that state’s bar, said Jeffrey.

Legal staff members who are not attorneys should be identified as such, she added.

Accepting e-mail

Most legal websites invite consumers to contact a lawyer either through a contact form or through e-mail.

Beware of the ethical traps.

A consumer may not understand that filling out a contact form does not create an attorney-client relationship and that information he or she discloses is not confidential.

“I have no idea whether you are who you say you are, whether you’re an adult or a minor, or whether you are in a jurisdiction I can practice in,” said James Bolan, a legal ethics attorney with Brecher Wyner Simons Fox & Bolan in Newton Centre, Mass.

One solution is to have a disclaimer that explains these issues and requires consumers to click a box indicating that they have read and agrees to the disclaimer before they area able to contact the firm.

Domain names

Even domain names can run afoul of ethical rules.

Some jurisdictions, for example, prohibit trade names or limit a law firm’s domain name to the names of the attorneys.

Domain names like easydivorce.com or cheapdivorce.com could violate rules on comparative statements, while domain names like richmondlegalservices.com could confuse a consumer who is looking for the legal aid office, McCauley said.

Class actions

Websites seeking potential class action clients have some sticky issues of their own.

“It’s a minefield when you do the rollout,” because of compliance issues in multiple jurisdictions, said Karpman.

“You’re asking people to tell you their stories, whether they have a claim or not. They may be unsophisticated consumers. You have to be very careful in how you have contact with people and what you have to tell them,” said Jeffrey.
She noted that mining data from visitors to your website could violate rules on solicitation, as well as certain federal laws.

Updating

When changes take place in your firm, make sure your website is updated as well.

If a lawyer leaves the firm, take his or her name off the website. Otherwise, it could be seen as misleading.

“It suggests that the firm still has a powerhouse lawyer at its shop, when it doesn’t,” said Jeffrey.

If you have content like legal articles on your website, make sure they are updated as the law changes.

“Material can be so old that it’s misleading to leave it there,” warned Jeffrey.

If you have content like legal articles on your website, make sure they are updated as the law changes.

Questions or comments can be directed to the writer at: sylvia.hsieh@lawyersusaonline.com

Close this Window Bookmark and Share This Page

Save to Browser Favorites / Bookmarks

Print RSS Feed Ask backflip blinklist BlogBookmark Bloglines BlogMarks Blogsvine BuddyMarks BUMPzee! CiteULike co.mments

Connotea del.icio.us Digg diigo DotNetKicks DropJack dzone Facebook Fark Faves Feed Me Links Friendsite folkd.com

Furl Google Hugg Jeqq Kaboodle kirtsy linkaGoGo linkedin LinksMarker Ma.gnolia Mister Wong Mixx MySpace

MyWeb Netvouz Newsvine oneview OnlyWire PlugIM Propeller Reddit Rojo Segnalo Shoutwire Simpy Slashdot

Sphere Sphinn Spurl Squidoo StumbleUpon Technorati ThisNext Tumblr Twitter Webride Windows Live Yahoo!

Email This to a Friend

Copy HTML: 

 If you like this then please subscribe to the RSS Feed.

More »