Every state has its own bar association, and every bar association sets its own legal and ethical rules regarding legal advertising. In addition, the American Bar Association is an overarching association which often sets standards and rules adopted by states individually.
Issues around legal advertising fall into three broad categories:
- What is legal or illegal?
- What is ethical or unethical?
- What is simply good or bad advertising?
It is of vital importance that a lawyer knows the rules, laws, and responsibilities that apply in the jurisdiction in which they practice. These rules, laws, and responsibilities will govern what an attorney may or may not say on their website. Often, a person will hire a blogger to provide content for their website. That attorney is ultimately responsible for every word on their website.
The Role of Blogging in Legal Advertising
So much of the legal profession uses blogging as one of the primary tools of legal advertising these days. Blogging imparts information in a way that engages a reader regarding an area of the law that a person may have an interest in. With the advent of legal blogging, attorneys have had to be careful to ensure that the boundaries of client confidentiality are kept. This is particularly true when a blogger uses hypotheticals. Those hypotheticals must not allow a person reading the blog to identify a client or that client’s situation. That is the gist of the American Bar Association’s Formal Opinion 480.
These admonitions also pertain to other “public commentary” by attorneys in online forums such as listservs, articles, postings, and platforms such as Twitter which allow micro-posts.
Those attorneys who use a website as part of their legal advertising must be particularly careful of two things. First, you must be careful not to establish an attorney-client relationship by virtue of any contact made by a client on the website. This could be a matter of a person emailing the firm and asking for advice. It could be a “contact us” blank form on the website that allows a person to contact an attorney at the firm. A disclaimer that specifies that such conduct does not form an attorney-client relationship should be somewhere on the site.
Likewise, because most attorney websites use blogs as a way to connect with potential clients, you must be careful not to have a client misconstrue the blog’s content. A disclaimer, prominently placed on the site, stating that the blog is not dispensing legal advice, but rather is only providing general information is helpful. The disclaimer should also state that a person should contact the attorney directly.
Some state bar associations require these disclaimers. An attorney should check the rules in their jurisdiction and monitor their websites for compliance.
The Model Rules of Professional Conduct, particularly Rules 7.1 and 7.2, adopted by most jurisdictions, and laws against fraud prohibit the use of materially misleading statements or information on an attorney’s website.
This includes overt statements and omitted facts. This can have implications for client testimonials, and in general how an attorney talks about the services they provide. This requires that lawyers be truthful and avoid exaggerations or “puffing” in describing their skills or results. Tooting your own horn with a statement like, “we are the best in town,” may be allowable if you are in used car sales but may run afoul of the state bar association.
Claims of Expertise
Lawyers must be careful about claiming expertise. Most bar associations offer certification in particular areas of practice. Gaining certification usually requires some degree of additional training, testing, and peer review. Lawyers who claim expertise without having the appropriate certification, run the risk of being sanctioned by their bar association.
As examples, these statements run from the most to the least problematic regarding expertise:
- “We are certified experts”
- “We are experts in our field”
- “We specialize in our field”
- “We focus on this area”
- “We practice in this area”
Claims of expertise, like the puffing of skills or case results, can unduly misrepresent an attorney’s skills, unfairly sway a potential client to hire the lawyer, and unwittingly “guarantee” a particular result for a client.
Comparison to Other Attorneys
Claims of being “the best” or “the best in town” and the like can get an attorney sued. An attorney must be careful to never put anything on their website that is not true. Claims of being “the best” are not easily verifiable. How does one determine who is “the best?” It is at best, subjective puffery. Vulnerable clients who need help can be easily swayed by these statements.
Like comparisons to other attorneys, statements guaranteeing results are highly problematic. These statements are sometimes overt, such as “we will win your case for you.” Other times, they are more subtle, “we will get you what you deserve.” No lawyer may ethically guarantee a result without running afoul of ethics rules. Any statement that leads a client or may lead a client to form unjustified expectations regarding results is prohibited.
What a lawyer can do is talk honestly about their experience in a particular area of representation. For example, if a firm practices only in the area of personal injury, an attorney can state “personal injury, it’s all we do.” The statement is factual. Likewise, a website can state the number of wins at trial for a specified time period as long as the statement is true. Such a statement may be something like “we tried 100 cases in the last year and won 75.”
Websites are an increasingly important tool used by attorneys for advertising their practices. Attorneys must remain vigilant regarding compliance in their websites. Without adherence to ethical and legal standards, attorneys open themselves to the possibility of being sued for malpractice. Caution taken now can prevent a headache later.