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There are many moving parts to creating a law firm website, including potential legal implications for a lawyer’s website content, design, behavior, and more. Check out this post for information on five legal concerns you need to keep in mind when creating your law firm site.
It goes without saying that all businesses should comply with the current laws, but this truth is especially applicable to a law firm where the business foundation is legal skill and competence, and the business leaders are generally lawyers bound to a higher standard of ethical behavior. Therefore, law firms tend to do their research on proper legal and ethical behavior and work to mitigate any risk of liability for the practice.
Nonetheless, technology is a constantly changing sphere impacted by a complex web of legislation, jurisprudence, and regulation. It is easy to inadvertently fall into an unexpected legal nightmare when you create a website without working with the proper professionals and without exploring the applicable laws.
While Justia is not a law firm and we cannot offer any legal advice to our clients, we do take care to keep a close watch on the laws impacting law firm websites, implement best practices in our work, and advocate for our clients to do the same when updating their own sites. Accordingly, here are five legal issues that a law firm should have on the radar for the firm website.
Remember: this post is meant for informational purposes only and does not constitute legal advice. If you have any legal concerns about your law firm website, you should consult with your attorney.
Web Accessibility
One in four adults, or 61 million people, in the United States have some type of disability, and laws have been enacted to protect their rights. You have likely heard of the Americans with Disabilities Act (ADA) in connection with accessibility standards. What you may not know is that your website may be subject to ADA compliance.
This is an active area of the law and things are constantly changing. The Department of Justice has seemingly interpreted the ADA to apply to websites, even when it does not necessarily engage in specific rulemaking for the issue. The Ninth Circuit found the ADA applies to Domino’s website, while the Eleventh Circuit indicated the ADA did not necessarily apply to Winn-Dixie’s website. Thus, it seems that there is an open question of ADA applicability to website design that could subject your law firm to potential liability if you are not compliant.
Nonetheless, the ADA is not the only law at issue here. For example, California state regulations have incorporated accessibility requirements. Section 508 and other related federal laws require certain standards of accessibility that may be interpreted to apply to websites. More laws may be introduced in the future.
Accordingly, it is important for law firms to ensure their websites are accessible and meet the appropriate guidelines in order to both insulate the firm from liability and ensure maximum access for your potential clients. At Justia, we suggest all law firm websites comply with the WCAG guidelines. You can check your website’s accessibility using the WAVE Web Accessibility Evaluation Tool.
Professional Responsibility & Disclaimers
Professional responsibility is very important for attorneys. And, as you likely already know, the rules on what may or may not be permissible can vary between jurisdictions.
For example, Louisiana has adopted Rule 7.6 outlining ethical rules specifically applicable to law firm websites, in addition to the other generally applicable rules. This varies somewhat from the American Bar Association’s model rules, as Rule 7.6 in the ABA model rules is related to political contributions (though other rules do apply to websites and online marketing). Similarly, New York has adopted several provisions that mention or apply to legal websites and computer-accessed communication, but it does not have a singular rule specifically targeted to websites alone.
Violations of these professional rules, whether intended or not, can result in fines, suspensions, and even disbarment. Moreover, failing to include proper disclaimers may open you up to outside liability with clients and potential clients. Therefore, you want to take special care to ensure you are not running afoul of any of your professional obligations or otherwise opening yourself up to legal liability through your website.
One of the best ways to keep your legal website on the right side of the law is to incorporate appropriate disclaimers on your website (and comply with any other applicable ethical rules). Consider any requirements imposed by the jurisdictions in which you are licensed, as well as any potential risk of liability. Then choose which disclaimers to integrate.
You likely want to include a no attorney-client privilege disclaimer, any disclosures required by your state bar association, language explaining testimonials and case outcomes, and more. For more information on disclaimers you should consider adding to your law firm website, check out this prior Justia Onward post. You may also find this post about email contact form disclaimers helpful. If you are ever uncertain about what your jurisdiction allows or requires, consult with an attorney that handles disciplinary matters, and your state bar association’s ethics committee or similar entity.
Copyright
Copyright is a two-way street. You want to ensure that your original content and images are protected from infringement, while also avoiding any liability for inadvertently infringing on someone else’s copyright.
You may be aware of these basic copyright concepts: 1) an author obtains copyright as soon as he creates his original work, and 2) registration of that copyright is voluntary. However, to more effectively protect your work, you should consider registering your copyright with the U.S. Copyright office. You should also add a copyright notice to your law firm website to better protect your original content and images from would-be infringers by putting them on notice of your claim.
Most law firms add a copyright notice to their website footer (© LAW FIRM NAME – YEAR), but you can also add it to individual images and content if you so choose. You may also be able to employ technical strategies to protect images on your site, such as disabling right clicks and editing the metadata. To learn more about protecting images on your site, check out our previous Justia Onward post, 7 Ways to Protect Images on Your Law Firm’s Website.
The other side of the copyright coin is ensuring you do not inadvertently run afoul of copyright law. Never use someone else’s content or images without checking to see whether copyright protection applies. If you are working on images for your website, consider these tips for avoiding copyright infringement.
If you use something on your website that someone else has a copyright claim to, you might receive a Digital Millennium Copyright Act notice and should react promptly. Of course, if you want to use copyright material on your site, you can also reach out to appropriate parties to get the proper authorization.
A way to check for content originality is to use the Copyscape tool. This tool checks for other online content that has been indexed. It does not check offline content and is based on indexed content so just because it passes the Copyscape test does not mean it’s original. That said, the tool can be helpful.
Privacy Policies
In this day and age, privacy policies are a hot topic for website developers and users alike. The legal requirements for what privacy policies you must incorporate vary from state to state and country to country. Nonetheless, it is important to note that incorporating clear privacy policies into your law firm website is generally a good practice for building trust with the public during the current, data-conscious climate, regardless of whether applicable laws require your website to have them.
To illustrate the complex legal landscape of data privacy, consider some of the most well-known laws on the topic. The European Union’s General Data Protection Regulation (GDPR) is often considered one of the most stringent policies in the world governing online privacy and data protection. If you target clients in the EU for any reason or collect data from people in the EU, you are likely to be subject to the GDPR.
Domestically, California is known for having strict data protection and privacy laws with the California Online Privacy Protection Act (CalOPPA) and the California Consumer Privacy Act of 2018 (CCPA). These laws are applicable for any website collecting information from individuals residing in California and require an adequate privacy policy describing the information being collected, how the information will be used, and how users can opt-out to protect their data.
Further, while it is not necessarily common for law firm websites to target children under 13, the Children’s Online Privacy Protection Act and related rules impose additional requirements on websites that are either directed to children under 13 or knowingly collecting personal information from these children.
Considering the complex legal landscape emerging across various jurisdictions and the increasingly data-conscious habits of our society, you should incorporate robust privacy policies into your website. Disclose any cookies you may be using to track visitors, explain what happens with contact form data, etc. A good rule of thumb: if you collect personal information or data from website visitors in any way, you likely need some sort of written policy to disclose that you are collecting data, the type of data you are collecting, and how that data will be used.
Client Confidentiality
While it is hard to pinpoint the proverbial number one rule for ethical attorney behavior, most would agree that maintaining the confidentiality of client information is a strong contender. It is a universal principle that extends across all jurisdictions and is almost always at the top of the list of things for attorneys to keep on their ethical radar.
However, everyone has seen a lawyer ad highlighting the excellent results achieved for a client. Law firm websites frequently contain information on case results and outcomes. Testimonials and reviews have become increasingly important pieces of legal marketing. How does a law firm navigate the line between these types of promotions and maintaining confidentiality?
The American Bar Association Model Rules of Professional Conduct provide:
A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).
While you should check the exact language of your local rules, most jurisdictions have adopted a similar formulation to this model rule. Therefore, before you add any case results or testimonials to your law firm website, it is a best practice to ask those clients for their consent to disclose the information.
Final Thoughts: Why Do You Care?
Your law firm website is a crucial piece of your law firm marketing plan in this digital age, and you want to do everything possible to ensure you stay on the right side of the law and your ethical obligations. While you certainly should consult with an attorney about any legal concerns you may have, working with experienced law firm design professionals, like those at Justia, who are cognizant of potential issues with law firm website design can help smooth the process.
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.
