Law is a profession ripe with tradition. This profession is one of the few self-regulating professions and is governed by a myriad of professional rules, ethical opinions, and applicable common law. It is well-known that, historically, the law itself has slothfully adjusted to incorporate technological advances within its parameters. This is true regarding the ethical rules of professional conduct. Yet, as more and more legal professionals are now turning to the internet to market their practice through legal websites, blogs, and other social media outlets, there will become an increased need for further regulation regarding ethical advertising on the internet.
The American Bar Association (“ABA”) has draft model ethical rules for states to adopt and lawyers to follow. Today, these rules are called the Model Rules of Professional Conduct (the “Rules”) עורך דין תאונת עבודה and were adopted by the ABA’s House of Delegates in 1983. These Rules were modified from the Model Code of Professional Responsibility. Additionally, the precursor to both was actually the 1908 Canons or Professional Ethics.
As noted, the Rules are not actually binding on an attorney until their state has either adopted them or some other related professional rules. Presently, all states except for California have adopted the ABA’s Rules at least in part. Most of the states have adopted the ABA’s Rules in full with slight modifications or additions to them. Other states, like New York, have adopted the ABA’s Rules but included somewhat substantial modifications.
The Rules and each state’s compilations do include provisions related to advertising and solicitation. Depending on the state, the distinction between each of these terms could be minimal or significant. Generally, “advertising” refers to any public or private communication made by or on behalf of a lawyer or law firm about the services available for the primary purpose of which is for retention of the lawyer or law firm’s services. In contrast, “solicitation” is a form of advertising, but more specifically is initiated by or for the lawyer or law firm and is directed to or targeted at a specific group of persons, family or friends, or legal representatives for the primary purpose of which is also for retention of the lawyer or law firm’s services.
Even though the Rules do address advertising and solicitation to the internet, they are unsurprisingly lacking. These gaps are somewhat filled by ethical opinions or case law. But this generally means that an attorney has already gone through the litigation process and, unfortunately, likely been subjected to discipline.
However, the Rules do provide a fairly strong foundation for an attorney or law firm read over. Even if your state’s professional rules do not adequately present internet marketing provisions, you may still consult the ABA’s Rules for guidance.
Within the Rules, the primary place to look is Rule 7. This rule pertains to “Information About Legal Services” and houses the majority of the applicable rules to internet marketing for attorneys. Duly note, that there still will be other provisions scattered throughout the Rules which apply to marketing. This is just the most applicable concentration of provisions an attorney should consult first before looking for those ancillary sections elsewhere.
Rule 7.1 is the first and more overarching provision an attorney should be concerned with. This section is entitled “Communications Concerning a Lawyer’s Services” and prohibits a lawyer from making “false or misleading communication about the lawyer or the lawyer’s services. A “false or misleading” communication is further defined in the rule and Comments as one that “contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.” Most pertinently, Comment 1 expressly states that Rule 7.1 does apply to a lawyer or law firm’s website, blog, or other advertising because it states that this provision “governs all communications about a lawyer’s services, including advertising permitted by Rule 7.2.”
Under Rule 7.2, which is entitled broadly as “Advertising,” allows attorneys to advertise “through written, recorded, or electronic communication.” Comment 3 confirms that “electronic media, such as the Internet, can be an important source of information about legal services.” Thus, this only solidifies the fact that 7.2 and, therefore 7.1, apply to internet legal marketing.
In addition, Comment 2 for Rule 7.2 provides further information regarding what can actually be included in these advertisements; for our purposes, websites and blogs. It permits the following: Information concerning a lawyer’s name or law firm, address, and telephone number; the kinds of services the lawyer will undertake; the basis on which the lawyer’s fees are determined, including pricing for specific services and payment or credit arrangements; a lawyer’s foreign language ability; name of references; and a catch-all for all other information that might invite the attention of those seeking legal assistance.
However, there is a caveat! First, your state may actually have additional requirements. For instance, New York only permits foreign language ability if “fluent” and not just as for a general ability. Therefore, you might be complying with the persuasive ABA Rule, but in violation with the mandatory state rule (in this case, New York). Second, this Comment is also misleading. Sub(c) under Rule 7.2 actually requires that a communication–such as an advertisement which we now know includes an attorney or law firm’s website–to contain the name and office address of at least one lawyer of the firm or the actual firm itself.