ABA Provides Quick Reference Guide to State Variations on Model Ethics Rules

The American Bar Association periodically publishes a document that describes legal marketing rules for every state, detailing how they deviate from the corresponding ABA Model Rule. This document covers everything from restrictions on client testimonials to required language related to certain fees. Some of these rules may be particularly relevant in the realm of Internet legal marketing, so we highlight a few of these for you.

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One of the more challenging aspects of establishing a website or blog for your law firm can be to ensure that you are doing so in compliance with all applicable legal ethics rules. A good place to start can be reviewing the American Bar Association’s (“ABA”) Model Rules of Professional Conduct (“Model Rules”), which most states have adopted to some degree. Given the relative dearth of legal ethics case law in many jurisdictions, referring to broadly accepted standards such as the Model Rules can be helpful, particularly when interpreting novel questions of law regarding professional responsibility. However, many states have also made modifications to the Model Rules in the process of enacting them, and the resulting variations can be difficult to track.

The good news is that the ABA publishes (and updates) a detailed document (“ABA Document”) addressing that very issue in the context of attorney advertising, providing a full list of state legal marketing rules that deviate from their corresponding Model Rules. Covering everything from restrictions on client testimonials to required language related to certain fees, this publication provides an excellent quick reference guide for lawyers looking to determine whether their state’s ethics rules diverge in any way from the Model Rules when it comes to advertising. Here we take a look at a handful of distinctions noted in the ABA Document that may be particularly relevant in the realm of Internet legal marketing, highlighting issues that may come up for attorneys in the process of building or updating their websites.

1) Advertising for Case Types in Which a Lawyer Lacks Experience or Specialist Certification

A top priority for attorneys looking to market their services online is to connect with potential clients looking for help with particular legal issues. In most situations this will mean advertising lists of practice areas or case types in which a lawyer has experience. In other cases, new lawyers or established attorneys looking to branch out into new practice areas may want to tailor their online marketing to attract case types they have not handled before. While this makes sense from a business development standpoint, attorneys in the latter group should proceed carefully, because some states restrict the extent to which lawyers can advertise for case types that would be new for them on the basis that such advertising can be misleading to prospective clients. As discussed in an earlier post, a broad prohibition on misleading material is one of the governing principles in legal ethics rules related to attorney advertising.

For example, Missouri (Rule 4-7.1(f)) and Montana (Rule 7.1(f)) specifically classify as misleading any communication that “advertises for a specific type of case concerning which the lawyer has neither experience nor competence.” Louisiana has a similar standard (Rule 7.2(c)(3)), designating as misleading any statement or implication that a “lawyer or law firm currently practices in an area of practice when that is not the case.” Florida (Rule 4-7.13(b)(4)) takes a slightly more flexible approach by stating that this standard only applies if the advertising attorney does not intend to practice in the advertised areas. The Florida rule, and potentially the Louisiana rule provided that the advertisement does not suggest current experience, seem to create a needed loophole for newer attorneys or for those wishing to expand into new practice areas.

There are a number of states that do not appear to have such restrictions in place, but even in those jurisdictions it is best to proceed with caution when discussing the case types you are looking to attract and any related experience you may have. Many states, such as Missouri (Rule 4-7.4), North Carolina (Rule 7.4(a)), and Pennsylvania (Rule 7.4(a)), have enacted rules stating that it is completely permissible for a lawyer to state that the lawyer does or does not practice in certain fields of law. However, these and several other states caution attorneys that they must not characterize themselves as “specialists” or experts in those areas unless they have been certified as such by the appropriate state bar authority. Once again, this restriction relates back to the more general rule barring advertising material that can be misleading in any way to prospective clients. The ABA Document provides a thorough list of states addressing the specialist certification issue, and the language of their corresponding ethics rules.

2) Advertising Office Locations Other than Your Principal Office

Another aspect of your practice that you will want to feature (and that most state bars require you to disclose) on your website is your office location. Indeed, from an SEO standpoint, advertising your location and using a consistent NAP (name, address, place) across all of your Internet properties and pages is critical to your rankings, in addition to being helpful to users. But in some jurisdictions, this is another area where you may risk running afoul of the prohibition on misleading advertising if you have multiple offices. Attorneys in Missouri (Rule 4-7.1(j)) and Montana (Rule 7.1(j)) must not advertise additional office locations that are staffed part-time or by appointment only “without conspicuous identification of such fact,” otherwise they will be deemed misleading. Missouri (Rules 4-7.2(e), (g)) also requires that for most websites, listing an office address means that office is staffed by a lawyer at least three days per week, otherwise the hours of availability must be listed online. Texas (Rule 7.04(j)) has adopted similar restrictions, explaining (see comment 16) that the rule is intended to prevent members of the public from being misled into hiring lawyers based out of far away cities, and who will not be regularly accessible to them. In sum, it is important not only to follow SEO best practices in listing your office addresses on your website, but also to check your state’s ethics rules in doing so.

3) Disclaimers Required in all Languages Used on the Site

Another area of increasing importance for many law firms is to make their services, including the information on their websites, available in multiple languages. This is an excellent way to reach new clients, but before posting translated pages or a full mirror site, make sure that any required statements or disclaimers that appear on your main site also appear where necessary on any pages posted in a different language. States including Florida (Rule 4-7.12(c)), Nevada (Rule 7.2(h)), and Texas (Rule 7.02(d)) explicitly state this requirement in their ethics rules. But even in jurisdictions that are silent in this regard, common sense dictates that the best course is to include all of your disclaimers and any other required statements in any language in which you advertise your services so as to avoid any risk that your materials can be deemed misleading or otherwise unethical for failure to include this information. Note that Nevada and Texas provide an exception to this rule if your website simply states that you offer services in another language; this alone does not create an obligation to include any additional statements or disclaimers.

In sum, the ABA Document is a convenient resource that can help you determine the best way to navigate the multiple ethics standards that may apply to your law firm’s website or blog. In addition to the rules highlighted above, you can use this document to quickly find information such as whether your state has any mandatory language requirements for legal marketing communications (such as including the statement “advertising materials”), disclaimers you may need to include with any testimonials, and any restrictions that may govern your advertisement of past case successes. As always, it’s essential to consult your state’s official ethics rules before posting to your site, but the ABA Document is a great place to start.

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.