As most practicing lawyers know, certain attorney advertising materials can be subject to mandatory review by the state bar before they are disseminated. And while it may be obvious in some states that specific publications, such as targeted mailings, clearly fall within the ambit of this kind of rule, it may be less apparent whether and to what extent the same standards apply to law firm websites.
The American Bar Association’s Model Rules of Professional Conduct, adopted in full or modified form in most states, do not address filing and review requirements for law firm websites. Similarly, in many jurisdictions the legal ethics rules do not explicitly discuss attorney websites in the context of these procedures. However, some of them do, and may even provide (or require) that you can submit at least a portion of your website to the state bar for review. Below is a brief (but not exhaustive) survey of some of the rules that state bar associations throughout the country have begun to enact in this area. Though it is always critical to personally check the rules in your state to verify your own compliance, reviewing the requirements below may be helpful in determining what standards to consider for your website.
Some States Explicitly Require Website Filing
While it does not appear at present that many states expressly require or offer review of website materials for the purpose of determining the existence of any potential ethics violations, there are a few exceptions. Texas, for example, states in Rule 7.07(c) that attorneys must submit the home page of a website, along with a fee and required paperwork, to the state bar prior to or at the time of publication of that page. Keep in mind that this only applies to home pages that include more than certain basic information, such as your law firm’s name, address, practice areas, and dates of bar admission (see Rule 7.07(e)(1)). Pursuant to Rule 7.07(d), an advisory opinion regarding website compliance with ethics rules is available to attorneys who follow the filing procedure outlined above, provided that they do so 30 days in advance of the date they first intend to post the material at issue. While the rule references “websites” (defined under Rule 7.07(c) as containing single or multiple pages) and states that a submission for review “shall include” the home page, it does not clearly state whether the bar is willing review an entire site as part of the advance advisory opinion process, or whether review is limited to the home page.
Kentucky is another jurisdiction that requires submission of law firm websites to the state bar’s Attorneys’ Advertising Commission (AAC). As in Texas, websites that contain anything other than basic factual information about the firm or its attorney(s) (enumerated in Rule 3.130(7.05)(1)) must be submitted, along with any applicable fees, to the AAC under Rule 3.130(7.05)(2) on or before the first date of publication. Lawyers wishing to secure an advance advisory opinion may do so by submitting their website 30 days in advance of going live. One added complication in this jurisdiction is that attorneys must also submit website updates to the AAC for approval, but only if they pertain to “substantive” changes. For example, correcting a typo does not require resubmission. See AAC Regulation 2 or Rule 3.130(7.05)(1)(a) for list of material not subject to resubmission, as well as this FAQ from the Kentucky Bar Association for more specific guidance on lawyer advertising in that state.
States Offering Optional Advisory Opinions Regarding Websites
Other state bar associations have enacted variations on these concepts. For instance, while Florida exempts websites from the general filing requirements that apply to other kinds of advertisements, the under Rule 4-7.19(d) the state bar is willing to provide advisory opinions regarding a “specific page, provision, statement, illustration, or photograph on a website.” However, the rule prohibits the review of entire websites.
Similarly, under Rule 7.8(g), lawyers in Louisiana are not required to submit their websites as part of the filing process associated with other advertisements. A pre-publication evaluation is available for attorney advertising materials in general under Rule 7.7(b). While the Louisiana rule does not explicitly invite submission of website materials for review, it also does not appear to prohibit it (though Rule 7.7(b) does characterize the availability of review as being “subject to the exemptions stated in Rule 7.8”).
As in the two preceding jurisdictions, lawyers in Nevada are not required to submit their websites to that state bar’s Advertising Committee. However, the Committee’s Interpretive Guideline No. 8 plainly states that attorneys practicing in that state are permitted to request an advisory opinion regarding website compliance.
States Expressly Disclaiming the Filing Requirement for Attorney Advertisements
While the jurisdictions above seem to favor more supervision of lawyer advertising than less, this is not true in all states. For example, the bar associations in states including Pennsylvania (see comment 5 to Rule 7.2(b)) and Rhode Island (see comment 5 to Rule 7.2(b)) not only do not require submission of websites (or other advertising materials) to the state bar, but characterize such rules as being of “doubtful constitutionality.” The rules in these two states are silent as to whether optional review is available.
Though again the examples above do not constitute a comprehensive list as to which states have implemented mandatory, optional, or other website filing rules, they reflect some of the norms that have begun to emerge throughout the country. As demonstrated by the variety of approaches discussed here, no clear standard has emerged across all states. However, as each jurisdiction considers this question in turn, attorneys have increased access to guidance on how to comply with ethics rules when marketing their firms on the internet.
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