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Bar News - March 21, 2008


Marketing Legal Services on the Web: Ethical and Professional Considerations

By:

 
Attorney Andrew S. Winters

 
Attorney William C. Saturley

Lawyers increasingly advertise 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. Each poses ethical considerations that should not be ignored by lawyers.

I. The 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 "written, recorded or electronic communication, including public media." The Rule, therefore, acknowledges the internet as a legitimate forum for advertising. 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 and address of at least one lawyer or law firm responsible for the content."

· Rule 7.3, Direct Contact with Prospective Clients, generally prohibits lawyers from contacting prospective clients, "by in-person, live voice, recorded or other real-time means … for the purpose of obtaining professional employment." Solicitations of any type are prohibited if the prospective client has made it known he does not want to be solicited, the lawyer uses "coercion, duress or harassment," or the lawyer has reason to believe the prospective client "cannot exercise reasonable judgment in employing a lawyer." Even when a lawyer is allowed to contact a prospective client known to be in need of legal services, the lawyer must "include the word ‘Advertising’ on the outside envelope and at the beginning of and ending of any recorded or electronic communication."

· 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).

· Rule 3.6, Trial Publicity, prohibits lawyers from making "an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication, and will have a substantial likelihood of materially prejudicing an adjudicative proceeding."

II. Carefully Monitor Websites to Ensure There are no False or Misleading Statements
Law firm websites 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

· Link with care 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.

III. Properly Identify Marketing E-mails

The Internet allows lawyers to send targeted e-mails to clients with the click of a button. 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 e-mails should at least include a disclaimer that it may be considered advertising.

IV. 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 websites and thinking about e-mail in terms of more traditional correspondence can help to maintain compliance with ethical obligations.

William C. Saturley and Andrew S. Winters are trial lawyers practicing in the commercial litigation and professional liability groups at Nelson, Kinder, Mosseau & Saturley, P.C. in Manchester. They frequently write on issues of professionalism, malpractice, and ethics. Paul Nolette, a former associate with the firm, helped prepare an earlier version of this article.

1. NHBA Ethics Committee, Lawyer Advertising: Million Dollar Advocate, Practical Ethics Article (Nov. 1997).

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