X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
There is no complete and definitive authority regarding the ethical constraints on law firm Web sites, and the Rules of Professional Conduct were clearly drafted without direct consideration of Web sites. But some basic principles are emerging that suggest the need for sensible precautions. Since a Web site is accessible in all jurisdictions, some unique considerations apply. The multijurisdictional accessibility of a site requires sensitivity to the ethical implications beyond the location of the firm’s principal office. It is very important in this regard that the site plainly state the jurisdictions in which each lawyer identified on the site is licensed to practice. Failure to do so could be considered a misleading communication, implying that the attorneys practice in all jurisdictions. (Maryland Ethics Opinion No. 97-26.) Listing the jurisdictions in which each lawyer is licensed is also a precaution against a complaint from a nonlisted jurisdiction for a violation of its ethics rules, at least with respect to passive (as opposed to interactive) sites. The universal accessibility of Web sites poses a unique choice of law dilemma: Which jurisdictions’ rules apply? Rule 8.5, relating to choice of law, provides little or no guidance because the rule contemplates that an ethics issue arises out of particular “conduct” and is drafted to provide a means for ascertaining the single jurisdiction’s rules that should govern a given situation. However, each jurisdiction whose citizens may be affected by a Web site has an interest in seeing its ethics rules applied to it. The prudent assumption, therefore, is that all jurisdictions in which any lawyer identified on the site is admitted should be accommodated and its ethics rules complied with. (See Pennsylvania Informal Opinion No. 98-85.) Use of interactive sites could also implicate additional jurisdictions in which communications were exchanged. Web sites have been deemed by many jurisdictions to be a form of advertising, and the affected jurisdictions’ rules regarding advertising have been found to apply. The advertising rules in each affected jurisdiction, along with the applicable ethics opinions, should therefore be reviewed. Prohibitions of false or misleading statements in communications regarding a lawyer’s services will apply. This could include the use of misleading domain names. In states adopting ABA Rule 7.1, that prohibition embraces a statement that may “create an unjustified expectation” or “compares the lawyer’s services with other lawyers’ services, unless the comparison can be factually substantiated.” The District of Columbia’s version of Rule 7.1 includes a broader requirement prohibiting any “assertion about the lawyer or the lawyer’s services that cannot be substantiated.” This places the burden on the attorney to establish the truth of her assertions, if challenged. If any of the jurisdictions require that an attorney responsible for an advertisement be identified (as required in Maryland and Virginia), then one or more individual lawyers should be so identified. This could arguably require at least one attorney licensed in each such jurisdiction to be so identified, although that is not clear. (In Virginia, Rule 7.1 expressly requires the responsible attorney to be licensed in that state.) If one jurisdiction requires that a copy of an advertisement be retained for a specified period (two years under ABA Rule 7.2), someone should be assigned responsibility for compliance with that requirement, which could involve preserving the text of a site on archival tapes, or printing out the text of the site, prior to each update or modification. (It is unclear whether this requirement might be found to include the need to retain site links or html code language, which would reveal a site’s metatags. It is possible that the use of these hidden metatags, which draw Internet users to a site, may attract ethical scrutiny.) A record should be kept of the period of time in which any particular version of the site was in place. If a jurisdiction requires that advertisements in the media be first submitted to the bar for review, this should be considered as well. Requirements regarding assertions of specialization must also be satisfied. While the District of Columbia does not have any restrictions in this regard (other than to prohibit misleading or false statements), ABA Rule 7.2 generally prohibits a lawyer from implying that she is certified as a specialist unless she has indeed been so certified in a jurisdiction with an authorized certification program. Under the ABA rule, there is an alternate section for jurisdictions that have no regulatory authority for certifications, which provides the verbiage required under those circumstances. Some jurisdictions, such as Maryland, simply prohibit the use of the term “specialist.” (Maryland Rule 7.2.) At least one jurisdiction requires an affirmative disclaimer of certification if an advertisement includes services in an area encompassed by the certification program. (See Texas Rule 7.04. Some firms’ Web sites include a blanket statement that their Texas attorneys are not certified by the Texas Board of Specialization.) Another issue to consider is the use of disclaimers generally. One important purpose of a disclaimer is to inform visitors to the site that no duty of confidentiality is owed to persons who send unsolicited e-mail messages to the firm or lawyer sponsoring the site. Absent such a disclaimer, a site visitor might plausibly claim that the very “friendliness” of the site gave rise to an expectation of confidentiality. Conflict of interest problems could arise if a person with interests sharply adverse to those of a firm client were to provide the firm with “confidential” information. A disclaimer should state that, absent prior discussion with an attorney from the firm, e-mails will not be treated as privileged or confidential. While this may seem off-putting from a marketing standpoint, it is a prudent precaution. In this regard, firms should be very careful in using interactive sites. None of the requirements for establishing an attorney-client relationship (i.e., the need for a conflicts check, a retainer agreement, avoiding unauthorized practice, and the requirement to provide competent advice) are eliminated simply because the computer is used as the medium of communication. A disclaimer may also be useful to advise that the material and information on the site do not constitute legal advice and that site links do not create any affiliation with the linked entities. The use of Web sites is an evolving area. Proper use of this new tool requires taking precautions against foreseeable problems. Arthur D. Burger is a partner at D.C.’s Jackson & Campbellwhose practice includes representing lawyers and law firms in matters of professional responsibility. He is also a frequent instructor of the D.C. Bar’s mandatory ethics course for new admittees. His e-mail address is [email protected].

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.