Tips for staying ethical online

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By Donna Walter
Dolan Media Newswires

Lawyers must abide by ethical rules in all areas of their practice — including how they market themselves online. Here are a few tips lawyers should keep in mind:

1. Ethical rules apply. “Lawyers need to recognize that they really need to familiarize themselves with the rules,” Michael Downey, an ethics lawyer at Armstrong Teasdale, says. “And if you’re going to put content on the Internet, you need to make sure that you comply with the rules.” The rules that apply are those in the state where the lawyer is licensed as well as the jurisdictions he is targeting with his advertisements. Andy Crouppen, of St. Louis-based Brown & Crouppen, says his firm hires ethics professionals to review its scripts and advertisements to ensure compliance with state advertising rules. “We may not like them, but we follow them as closely as anyone,” he says.

2. A disclaimer is required — unless it isn’t. So-called tombstone ads, listing the name of the law firm and its lawyers, areas of practice, bar admission dates and contact information, don’t need disclaimers. “One thing lawyers should be aware if is: The rule does not allow you to include a tag line,” Downey says. “The sort of general consensus is if you have a tag line you probably need a disclaimer.”

3. Watch what you link to. If a client posts something complimentary but the lawyer is not involved in the posting, then the lawyer isn’t responsible for it, Downey said. But if a lawyer links to the client statement, then he has adopted it and could be held responsible for its content.

4. Be careful sharing information about clients. In March, the Virginia Supreme Court said in Hunter v. Virginia State Bar that lawyers could post publicly available information about their clients in a blog. But, Downey says, the controversial decision is not consistent with caselaw, and he cautions against writing about clients without their consent. “I also think there will be a number of jurisdictions that won’t necessarily adopt it,” he says. The same opinion says a blog is an advertisement and requires a disclaimer.

5. Avoid fee-sharing arrangements in paying for ads. Sometimes lawyer-advertising companies will charge a percentage of the fees earned in a case brought in by the advertisement the company placed. That could spell ethics trouble for the lawyers who agree to such arrangements. “The sad thing for the lawyers is it’s the lawyer’s license that’s going to be implicated there,” Downey says. “The advertising company may get in trouble, but they won’t get in trouble like the lawyer will.”

6. Don’t use hidden text deceptively. Search engines pull up search results by combing through the code on websites, including hidden text that appears nowhere on the visible site. Including, for example, Clayton in the hidden text when the law firm uses St. Louis in its address is what Downey would call a valid use of hidden text. On the other hand, it would be deceptive for a lawyer to use a competitor’s name as hidden text on his website. Although Cannon & Dunphy was found not liable for when it tagged competitor Habush, Habush & Rottier, Downey still cautions lawyers against doing that. On the other end of the spectrum, in March the Florida Standing Committee on Advertising issued a proposed advisory opinion suggesting any hidden text could be a problem.

7. Be ready to back up claims. “What you put on your firm website, you should be willing to put on an affidavit,” Downey says. “If you’re going to say I’m world-famous, and someone says why do you think you’re world-famous, you’d better have an answer. And it better be a reasonable answer.”

8. Confidentiality rules still apply. Despite efforts to separate professional and personal lives, lawyers need to remember they are lawyers 24/7, 365 days a year, says Catherine Sanders Reach, director of Law Practice Management & Technology at the Chicago Bar Association. “So if you say, ‘Well, I’m just on Facebook for personal [reasons],’ you still have to monitor what you say. You couldn’t talk about your clients to your family; you can’t talk about them on Facebook to your family,” she says.

Donna Walter is a writer for Missouri Lawyers Media, a sister publication of the Wisconsin Law Journal.