Ethical and Professional Considerations

LAWYERS ARE INCREASINGLY advertising through the Internet because it is affordable, interactive and easy to use. Common methods include posting marketing materials on a firm Web site and sending targeted information via e-mail. Each method allows law firms immediate access to current and prospective clients, however, each also poses ethical considerations that should not be ignored by attorneys.

Ethical Rules Applicable to Internet Advertising

The ethical rules that apply to traditional forms of advertising and soliciting undoubtedly apply to Internet marketing. The following rules are particularly pertinent:

• Rule 7.1, Communications Concerning a Lawyer’s Services, generally prohibits "false or misleading communication[s]." A communication is misleading if it contains a material misrepresentation or omits facts necessary to make the statement as a whole not materially misleading. A communication is also misleading if it is "likely to create an unjustified expectation about results the lawyer can achieve."
• Rule 7.2, Advertising, permits lawyers to advertise their services through "public media," such as newspapers, radio or television. Although the Internet is not specifically recognized by the Rule, it is the new public media and it can only be a matter of time before it is included. Substantively, Rule 7.2 makes legal advertising subject to the requirements of Rule 7.1 regarding false or misleading statements.
• The Rule further requires that advertisements need to include the name of at least one lawyer responsible for the content. In addition, Rule 7.2(b) requires that "[a] copy or recording of an advertisement or written communication shall be kept for two years after its last dissemination along with a record of when and where it was used."
• Rule 7.3, Regulation of Solicitation, prohibits lawyers from soliciting prospective clients who have made it known they do not want to be solicited.
• The Rule also requires that written solicitations to new, prospective clients be clearly labeled "Advertising" and that copies of written solicitations and mailing lists be kept for a period of two years.
• Rule 7.4, Communications of Fields of Practice, prohibits statements that the lawyer is a specialist unless the lawyer is certified as a specialist (e.g. patent attorneys admitted to the patent bar).

Carefully Monitor Web Sites to Ensure There are no False or Misleading Statements

Law firm Web sites often contain articles written by the lawyers, "hyper-links" to various legal sites, and a potentially vast amount of other communications. In the fast-changing legal world, there is a real potential for these materials to become outdated and possibly offer potential clients false or misleading information in violation of Rule 7.1.

Potential risks can be reduced through some or all of the following mechanisms:

• Monitor all parts of your site
• Watch out for connections to unofficial sites – Who will the client associate you with?
• Date stamp your pages
• Identify the jurisdictions when state-specific issues are discussed
• Use disclaimers

As with other types of media, advertising past successes for individual clients should be done with care to avoid creating "unjustified expectations" for potential clients. A 1997 NHBA Ethics Committee Practical Ethics article, for example, found a statement advertising a lawyer as a "Million Dollar Advocate" violated Rule 7.1.¹

Properly Identify Marketing E-mails

The Internet allows lawyers to send targeted e-mails to clients with the click of a button. Rule 7.3 specifically contemplates solicitations by snail mail, but the same rules should be followed where e-mail is used. While an e-mail to a client on an existing case is not a "solicitation," an e-mail to a group of new, prospective clients on a particular topic intended as a marketing tool may fall within the scope of the Rule. Such an e-mail should at least include a disclaimer that it may be considered advertising.

Maintain Copies of Web Sites and E-mail Solicitations

Rules 7.2 and 7.3 require keeping a "copy or recording of an advertisement" or a "written solicitation and mailing list" for two years. Maintaining these copies can prove more difficult with electronic media. Web sites are (or should be) updated frequently and there can potentially be large amounts of information available on the site. E-mail "solicitations" can be sent spontaneously without regard to maintaining a paper trail. Establishing some or all of the following protocols can help ensure compliance with the Rules:

• Keep updates to Web sites.
• Specifically task someone to save e-mail solicitations and addresses.
• Consider appointing one person with the responsibilities to maintain all such material for the office.

It is unclear whether the Rules require such copies to be maintained in print or whether they can be electronically stored. Some state bars, such as Utah, require only that lawyers keep an electronic copy of a Web site page. See UT Eth. Op. 97-10 (Utah St. Bar). Others, like Florida and North Carolina, require hard copies of Web sites be maintained. See Thomas E. Lynch, III, Ethical Problems with Legal Computer Advertising and Affiliations, Md. B.J. (2001). This question has not been directly addressed in New Hampshire. It is advisable, however, for lawyers and firms to keep electronic and hard copies of all Web site pages, including new copies when changes are made, as well as e-mail solicitations and addresses for the two years specified by the Rules.

Conclusion

The Internet allows lawyers and law firms to directly and immediately inform current and potential clients of the services they offer. Lawyers need to keep in mind, however, that the ethical rules on advertising and soliciting still apply. Carefully monitoring Web sites and thinking about e-mail in terms of more traditional correspondence can help to maintain compliance with ethical obligations.

Endnotes

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