by David B. Stratton, Esq., Partner, Jordan Coyne & Savits, L.L.P.

The main focus here is to review the ethical guidelines governing Internet web pages published by law firms, under the law of the District of Columbia, Maryland, and Virginia. In addition, some other issues and choices associated with a law firm website are discussed.

I. GENERAL GUIDELINES

The following points are from the section concerning Internet advertising in the ABA/BNA Lawyer's Manual on Professional Conduct:

In a Model Rules jurisdiction, a lawyer's Internet advertising must conform to the requirements governing other methods of advertising legal services. In particular, Rule 7.2 requires lawyers to retain a copy of an advertisement and a record of its use for two years and requires that an advertisement include the name of at least one lawyer responsible for its content. Moreover, Rule 7.1 prohibits false or misleading communications, and Rule 7.4 restricts specialization claims.

At least some forms of direct Internet marketing may be analogous to solicitation in person or by a telephone, and thus trigger Rule 7.3. Typically, however, law firm websites are not covered by Rule 7.3, because the reader makes an intentional choice to visit the site; the web pages are not sent to the reader without a prior inquiry. Emerging technology may push into the scope of this Rule, such as banner advertisements that display when someone runs a particular type of word search on an Internet search engine. In addition, publication over the Internet by use of "channels" has some risk there, because with channel technology, the communication is originated by the broadcaster/publisher of the material.

That aside, Model Rule 7.1, 7.2, 7.3, 7.4, and 7.5 all generally apply to Internet advertising.

It seems clear that it will be necessary to keep a hard copy of all Internet pages published, and copies of each change made thereafter. For each copy retained, it is recommended that the law firm retain a record of where and when it was published. That would mean for an Internet page, a record noting the uniform resource locator sites of the web pages in question, the provider hosting the pages, and a record noting the time spent during which users were able to visit the web pages in question.

It is not clear whether an electronic copy needs also to be retained, but that is probably the better approach.

As an aside, this creates an administrative headache. In the Internet field, where "content is king", fresh copy for a website is considered essential - it is not uncommon for a site to be updated weekly. Yet, ethical rules in some States require hard copies, and also probably electronic copies (preserving the hyperlinks), of every Internet page published to be retained for as long as three years. To this writer’s knowledge, there is no easy, off-the-shelf answer to this archiving challenge.

Further, a general caution is that attorneys advertising on the Internet should also take care to comply with ethics rules that restrict certain forms of advertising (such as testimonials, illustrations, or appeals to emotion), and with those pertaining to claims of specialization. Generally, direct or implicit comparisons to other lawyers is forbidden. For instance, lawyers have gotten into difficulty for characterizing themselves as "caring" or "compassionate" because it implies that other lawyers are not.

II. DISTRICT OF COLUMBIA RULES

Rule 7.1(a) states that a lawyer shall not make a false or a misleading communication about the lawyer or the lawyer's services. A communication is false or misleading, for example, if it contains an assertion about the lawyer or the lawyer's services that cannot be substantiated. Also, obviously, it is false or misleading if it contains a material misrepresentation of fact or law. Comment [1] states, in part, "certain advertisements such as those that describe the amount of a damage award, the lawyer's record in obtaining favorable verdicts, or those containing client endorsements, unless suitably qualified, have a capacity to mislead by creating an unjustified expectation that similar results can be obtained for others." (emphasis added).

Comment [2] states that, in pertinent part, "To assist the public in obtaining legal services, lawyers should be allowed to make known their services not only through reputation but also through organized information campaigns in the form of advertising." Comment [4] to Rule 7.1 states, in part, that:

Some jurisdictions have had extensive prohibitions against television advertising, against advertising going beyond specific facts about a lawyer or against "undignified" advertising . . . . [P]rohibiting television advertising, therefore, would impede the flow of information about legal services to many sectors of the public. Limiting the information that maybe advertised has a similar affect and assumes that the Bar can accurately forecast the kind of information that the public would regard as relevant.

In sum -- and not surprisingly -- Internet advertising is loosely regulated under the District of Columbia Rules of Professional Conduct.

III. MARYLAND RULES

Maryland State Bar Association, Committee and Ethics, Opinion 97-26, dated July 17, 1997, can be summarized as follows:

A web page is permissible advertising. Maryland Rules of Professional Conduct, Rule 7.2(a). The Rules of Professional Conduct apply to a web page.

The Maryland Rules of Professional Conduct relevant to a website are Rule 7.1, dealing with communication concerning a lawyer's services; Rule 7.2(b), dealing with recording requirements; Rule 7.2(d), dealing with the obligation to include the name of a lawyer responsible for the content of an advertisement; and Rule 7.4, communication concerning fields of practice.

The Opinion also cautions that web page advertising creates a potential problem arising from the interplay of Rule 5.5(a), dealing with prohibitions against the unauthorized practice of law, and Rule 7.1, prohibiting misleading communications. It cautions that a lawyer must be very careful to make sure that the web page makes clear the States in which he or she is licensed to practice.

Maryland Rule of Professional Conduct 7.1 states that a lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it, among other things, "is likely to create an unjustified expectation about results the lawyer can achieve, or states or implies that the lawyer can achieve results by means that violate the Rules of Professional Conduct or other

law . . . . "The comment to this Rule states, in part, that

"the prohibition in paragraph (b) of statements that may create "unjustified expectation" would ordinarily preclude advertisements about results obtained on behalf of a client, such as the amount of a damage award or the lawyer's record in obtaining favorable verdicts, and advertisements containing client endorsements. Such information may create the unjustified expectation that similar results can be obtained for other without reference to the specific factual or legal circumstances."

Thus, a communication will be regarded as false or misleading if it asserts the lawyer's record in obtaining favorable verdicts, awards, judgments or settlements in prior cases, unless it also expressly and conspicuously states that each case is different and that the past record is no assurance that the lawyer will be successful in reaching a favorable result in any future case.

Maryland Rule Professional Conduct 7.2(b) requires that a copy or recording of an advertisement or such other communication shall be kept for at least three years after its last dissemination along with a record of when and where it was used. The Comment to the Rule indicates that this provision is to facilitate enforcement of the Rule, but it does not require that advertising be subject to review prior to dissemination.

Maryland Rule Professional Conduct 7.2(d) states that "any communication made pursuant to this Rule shall include the name of at least one lawyer responsible for its content."

Rule 7.4 states that, "a lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law, subject to the requirements of Rule 7.1. A lawyer shall not hold himself or herself out publicly as a specialist." The comment states that, "this Rule permits a lawyer to indicate areas of practice in communications about the lawyer's services . . . ."

IV. VIRGINIA RULES

Virginia Ethics Opinion A-0110 (which apparently is an advisory opinion), states, in pertinent part, as follows:

It is the Committee's opinion that a Virginia lawyer advertising on the Internet is subject to applicable disciplinary rules in the Virginia Code of Professional Responsibility. Thus, for example, DR2-101(A)'s prohibition of advertising which is false, fraudulent, deceptive or misleading applies to "public communication" including communications over the Internet.

The Committee observes that a lawyer's communications over the Internet are "disseminated to the public by use of electronic media" for which the lawyer has given value and therefore are subject to the requirements of DR2-101(B). This means that a lawyer or law firm that advertises on the Internet must make and preserve for at least one year a hard copy of any advertisement posted on the Internet. This includes advertisements in the form of homepages, posting to bulletins boards, news groups, usenets, telnets, etc.

. . . . (T)o the extent that existing rules can be applied to lawyer advertising over the Internet, lawyers must comply with such rules. Other jurisdictions have reached the same conclusion. See e.g., Iowa Ethics Opinion 95-21 (1996) (lawyers who have homepages must comply with rules in advertising including publication of required disclaimers); Pennsylvania Ethics Opinion 96-12 (1996) (communications on the Internet about lawyer's services are subject to Ethics Rules regarding advertising); South Carolina Ethics Opinion 94-27 (1995) (lawyers advertising on the Internet is subject to State's Rules regarding advertising). . . ."

Opinion A-0110, dated April 14, 1998.

Turning to the text of the Disciplinary Rules, DR2-101(A) states, in part, that an advertisement is misleading if it states or implies that the outcome of a particular legal matter was not or will not be related to its facts or merits. DR2-101(B) states that

a publication or communication for which a lawyer has given value must be identified as such unless it is apparent from the context that it is such a communication. If such a communication is disseminated to the public by use of electronic media and is prerecorded prior to dissemination, the prerecorded communication shall be approved by the lawyer before it is broadcast. A recording of any actual transmission shall be retained by the lawyer for a period of one year following the last broadcast date and shall be provided to the Standing Committee of Lawyer advertising and Solicitation upon its request. (emphasis added).

Hence, the website pages must be reviewed by all Virginia attorneys with the firm prior to being published. DR2-104 generally prohibits a lawyer from holding himself out publicly as a recognized or certified specialist except for lawyers who specialize in patent, trademark or admiralty law.

DR2-104(B) states that, "a lawyer may state, announce or hold himself out as limiting his practice to a particular area or field of law so long as his communication of such limitation of practice is in accordance with the Standards of DR2-101, DR2-102, or DR2-103, as appropriate."

Virginia EC2-7 says, among other things, that "advertisements in public communications should be formulated to convey information that is useful to a lay person in making an appropriate selection. Self-laudation should be avoided . . . ."

V. AREAS OF UNCERTAINTY

In establishing a law firm website, an important choice to be made is how to handle feedback, whether e-mail or otherwise. One’s initial impulse may be to include personal e-mail addresses of all attorneys. However, some commentators advise against that, as it is imperative to have a procedure to screen incoming communications -- other than from clients -- before they reach the attorneys, so that proper conflicts-checking and other procedures for screening new matters can be employed.

It is somewhat ironic that, while a key benefit of a website is to improve the accessibility of the law firm, at the very same time that the firm is creating that accessibility, it must be careful to maintain procedures to prevent communications that may be ethically inappropriate. Whether or not posting personal e-mail addresses of all attorneys would, in practice, be a problem depends a great deal on the nature of the practice. One might be tempted to begin with full accessibility, and only pull it back if it turns out to be a problem. But that would be similar to having an unlisted number after the same number was previously published in the telephone book -- difficult to do effectively unless you change the number.

One must also be concerned with the privacy of attorneys, who can make enemies as well as friends and admirers in the course of their professional duties. From published reports, website photos and email addresses of female attorneys sometimes result in sexual harassment.

There are also unsettled issues concerning the legal ramifications of publishing a website.

• For example, does the publication of a website constitute doing business in a State for purposes of long-arm jurisdiction, even if the law firm has no offices and has not handled any matters in that State?

• Second, does the publication of a website, which is accessible in every State in the U.S., make the firm subject to the Rules of Professional Conduct and the ethical opinions of the bar of every State?

• Third, would it be possible for someone to take action in reliance on some legal conclusion or advice stated on the website, and then sue if it turns out to be erroneous? (This might be especially problematical if an existing firm client is the one who consulted the firm's website, perhaps reasoning that it was a value-added service of the firm which was included in the retainer.)

These and other such concerns motivate law firms to include extensive and numerous disclaimers on their sites. Some firms even repeat the disclaimers on each and every page of the site,

That brings up another set of choices that must be made: what kind, and how much, substantive material should be made available on the website? There is no easy answer here. Not doing so means that the website is limited to being "brochure-ware", the derisive name for a site that is simply an electronic brochure. (Although, there is much to be said for at least having an electronic brochure on the web that is available to potential clients at their convenience.)

"Brochure-ware" would seem to draw little traffic from browsers, and does not come close to tapping the marketing potential of a website in generating interest in and goodwill towards the firm. On the other hand, publishing substantive materials on the web exposes the firm at least to the potential of being sued. Substantive discussions which are accurate when published could become wrong overnight due to changes in the law. Apart from that, in this age of intellectual property, it is counter-intuitive for a law firm simply to give away its work product to anonymous browsers, who often probably include competitors and adverse parties. Thus, while the technology would certainly allow it to be done easily, and fairly cheaply, it will be a rare firm which publishes an electronic "brief bank" online, even if access is limited to clients.

In sum, where law firm websites are concerned, the better course is "moderation in all things." The law firm website has a number of functions, such as providing contact information, information about the qualifications and experience of members of the firm, information about the law, opportunities to sign up for the firm’s electronic newsletters, and so forth. Going to extremes in any of these areas can lead to trouble.

[ Home ] [ Up ] [The Firm] [Practice Areas] [Attorneys] [News]

Send E-mail to info(at)jocs-law.com with questions or comments about this web site.   General contact information.
Copyright © 2006 Jordan Coyne & Savits, L.L.P., 1100 Connecticut Ave., N.W., Suite 600, Washington, D.C. 20036;10509 Judicial Drive, Suite 200, Fairfax, Virginia  22030;Last modified: June 03, 2006 11:53:55 AM