Now more than ever, people rely on the Internet as their first stop when seeking legal help. In response to this trend, it has become standard practice for attorneys to set up websites, blogs, and social media profiles for their law firms, working to make information about their legal services as accessible as possible to tech-savvy prospective clients.
One of the challenges this presents is that any form of attorney advertising, which legal websites and blogs are generally considered to be, can be subject to myriad restrictions from a professional responsibility standpoint. Given the constant changes in the realm of online marketing, and the lag time that often occurs while legal standards catch up, figuring out how these industry developments match up with any corresponding legal ethics rules can be perplexing.
Fortunately, a handful of best practices are emerging as states begin to provide clearer guidance as to how these standards apply to marketing legal services on the Internet. While it is always essential to check the ethics rules in your state before proceeding, reviewing the commonly required disclaimers described below can get you started in determining whether your website and blog are in compliance.
1. No Attorney–Client Privilege
It is crucial to state, either in your website’s terms of service or elsewhere in compliance with your state’s rules, that contacting you via your website does not create an attorney–client privilege. Many lawyers opt to include 24/7 chat services on their websites so that visitors can ask questions. A prospective client might reasonably expect that initiating a chat, submitting a contact form, or emailing an attorney listed on the website would create an attorney–client relationship and be confidential. Thus, it is important to state explicitly that such communications are not necessarily secure or confidential, and that merely initiating contact with the attorney does not create an attorney–client relationship. You should consult your state bar if you have any questions about this disclaimer.
2. Language Required on All Attorney Advertisements
One of the more basic rules your site or blog may be subject to is to note somewhere prominent that the site or blog itself constitutes attorney advertising, or to state something else of that nature. For example, attorneys in New York (Rule 7.1(f)) must include the phrase “Attorney Advertising” on the home page of their websites. In Missouri (Rule 4-7.2(f) and comment), legal advertising materials must contain a “conspicuously” placed statement that “[t]he choice of a lawyer is an important decision and should not be based solely upon advertisements,” with the notation that “[t]his disclosure is required by rule of the Supreme Court of Missouri.” These across-the-board attorney advertisement language requirements don’t apply in all jurisdictions, but it’s critical to check your state’s rules to ensure that you incorporate any such text to the extent necessary on your website or blog.
3. Disclaimers to Offset the Potentially Misleading Nature of Client Testimonials or Case Results
As explained in comments 2 and 3 to Rule 7.1 of the American Bar Association’s (ABA) Model Rules of Professional Conduct (the “Model Rules,” which have been adopted in full or to a great degree in many states), as well as this previous post, one of the core concepts governing attorney advertising is that it cannot contain any “misleading” information. What this means for your website or blog is basically that nothing you say about your practice should lead a reasonable person to develop unjustified expectations regarding case outcomes, or reach otherwise unsubstantiated conclusions that appear to be grounded in fact.
Fortunately, many states permit you to incorporate content like client testimonials and case outcomes in your online materials as long as you include certain disclaimer language intended to diminish the potentially misleading effect of any such information. For instance, attorneys in Nebraska, consistent with Model Rule 7.1, can “truthfully report” accomplishments regarding past cases in their advertisements so long as they include an “appropriate disclaimer” that would dispel any notion that a particular outcome would be possible in any given case regardless of specific facts or circumstances. Similarly, lawyers in Washington must utilize disclaimers to offset the misleading effect of any statements containing unsubstantiated comparisons with the fees or services of other attorneys. Review your site, as well as your state bar rules, to determine whether you need to add any disclaimers of this nature. Notwithstanding the availability of any such disclaimers in your jurisdiction, it is probably best to stay away from any explicit statements that your firm is the “best” or “better” than others with regard to things like skill level or fees.
4. Fields of Specialization
As discussed in an earlier post, in most states you shouldn’t use any language on your website that conveys the idea that you are an “expert” or “specialist” in your practice area unless you have been certified as such by the relevant regulating body. Even then, there are likely to be restrictions on the wording and images you’re allowed to use in communicating this designation on your website. In short, your certification as a specialist is an excellent marketing tool; just be sure to read the fine print before publicizing it.
5. Identify the Attorneys Responsible for the Website
Another fundamental requirement for attorney advertising in most states is to identify the attorney(s) and/or law firm responsible for the advertising materials, and include their name and address (which in this context, means posting it on the website). In Illinois, for example, a law firm website must list the name and address of at least one attorney (or the law firm) responsible for its content (Rule 7.2 (c)). Attorneys in Wyoming are subject to the same requirement. This is consistent with Model Rule 7.2(c), and as such, is a standard that likely applies in some form in your jurisdiction.
6. Client Liability for Costs
Another piece of information you may need to be clear about on your firm’s website is whether your clients are still responsible for costs if payment for your services is contingent upon the outcome of their case. Several states, including Pennsylvania (Rule 7.2(h)(1)) and Texas (Rule 7.04(h)), require disclaimers to this effect if you advertise the availability of contingent fee arrangements. Check your state’s rules to see what you need to include on your website if you offer this kind of payment option.
The disclaimers discussed above cover the basics in terms of what your state bar may require you to include, but by no means constitute an exhaustive list. For example, states like Georgia (Rule 7.2(c)(2)-(3)) require disclosure of whether the firm’s website will serve to refer the majority of prospective clients to another attorney, and also whether any images on the site include actor portrayals of lawyers or clients.
Moreover, keep in mind that there are a number of other disclaimers that, while perhaps not explicitly mandated under your jurisdiction’s rules of professional conduct, may be good to consider adding. These include disclaiming the formation of any attorney-client relationship through a visitor’s use of your site, addressing the extent of any confidential treatment that information transmitted through the site will receive, and clarifying that no statement on your site should be interpreted or relied upon as legal advice. Depending on the nature of your practice, it may also be wise to include an IRS Circular 230 notice.
At the end of the day, while this post provides an overview of some commonly required disclaimers, it is key to consult and stay current with the legal ethics rules in the jurisdictions in which you practice to ensure that you are in compliance. This can help you market your practice in an informed and professional manner, and develop an online presence that can lead to growth for your firm.
Disclaimer: The information in this blog post (“post”) is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. No information contained in this post should be construed as legal advice from Justia Inc. or the individual author, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting on the basis of any information included in, or accessible through, this Post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country or other appropriate licensing jurisdiction.