Category: Business Ethics

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.

Disclaimers Help

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.

Misleading Information

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.

Guaranteeing Results

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.”

Final Thoughts

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. 

 

 

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“Whenever you do a thing, act as if all the world were watching.”
– Thomas Jefferson

25,000 Influencers Wanted to Take the Ethical Business Pledge—Change History!
Show the Business World How to Succeed by Being Ethical and Cooperative

Will you be a part of the movement to change the world of business?

• To make the next Enron so unacceptable that it won’t happen?
• To create a business climate where people at nearly every business in the world can hold their heads up high and be proud of what they do—and the remainder rise up in rebellion at the crooked practices of their employers?

In short, will you help create a moral code of business ethics based on honesty, integrity, and quality?

This is about changing the world! About creating a climate where businesses are expected to behave ethically, and where executives who try to drag their companies into the unethical swamplands find that nobody’s willing to carry out their orders.

I believe that if I can get 25,000 business leaders—25,000 people to make a commitment to spread the ideas in Guerrilla Marketing Goes Green, that we can change the culture of business. Following the ideas expressed in the book The Tipping Point, and the story of the 100th Monkey, I feel, deep in my heart, that once a critical mass embraces the idea that high ethical standards are not only possible, but actually more profitable, society will change.

Some of those key ideas (among many) include:

• Businesses are more likely to succeed when they base themselves in ethics—in honesty, integrity, and quality
• Businesses must look at the “triple bottom line”: financial, environmental, and social impacts (and this will require major pressure: currently, US public corporations are required by law to focus only on the economic bottom line, to the exclusion of other objectives and stakeholders)
• Amazing things can happen when all stakeholders (employees, customers, suppliers, neighborhood residents, even competitors) become your active champions-but that only happens if your business specifically empowers each of these groups and addresses their different needs and desires
• Line employees, managers, and even CEOs need support to show that ethical principles will help their businesses succeed, and that they won’t be penalized by the marketplace for taking an ethical stand

Society changes when enough people decide that something is seriously wrong…and when they feel empowered to do something about it. In my own lifetime, we’ve seen critical masses arise and succeed, over and over. For example

• Blacks and whites joined together to desegregate the southern United States
• People’s movements tore down the Berlin Wall and the entire network of totalitarian Soviet governments
• South Africa peacefully threw off the shackles of apartheid and freed Nelson Mandela from prison to be its first democratically elected President

All of these struggles started with a few people, but spiraled outward to become an unstoppable movement for justice once enough people started to believe and to act. Ordinary people in Montgomery, in Gdansk, in Soweto, in so many other places, decided that things had to change—and they changed!

Now, after years of corporate scandals, it’s time to say, as those ordinary people did before us, that things have to change. I wrote and published my book, Guerrilla Marketing Goes Green, to help create that change. If businesses see that it’s actually in their financial interest to do the right thing, that this will motivate change in executive boardrooms, in stockholder meetings, and in the press.

Eventually, this movement will reach critical mass. And some crooked “entrepreneur” will come along and try to cheat employees and customers while leaving a big, expensive mess for the public to clean up. But that crooked business owner won’t find the people who will carry out this dirty work. Instead, good people will stand up for what’s right-for ethics, for justice, and for honoring the company’s real mission-not only because it’s the right thing to do, but because they understand that it works better.

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