Firms must be careful to follow Rules of Professional Conduct governing interactive
My firm is becoming very technologically advanced, particularly in advertising. We have now developed a very interactive website. Are there any ethical concerns?
Attorney websites can clearly be a source of business. Very few clients look in the Yellow Pages anymore to find an attorney. The Internet and websites assist clients in deciding who they wish to retain.
Attorney websites have to be carefully constructed because of the fact they are not limited to one jurisdiction or one geographic area. An attorney website is visible to clients all over the state and all over the nation. But if an attorney is only licensed in Pennsylvania, there have to be some disclaimers on the website so clients in other areas of the country will know the lawyer is not licensed to practice in those areas.
Also, the lawyer has to be careful because other jurisdictions may have more restrictive advertising rules.
But one of the biggest concerns for a lawyer is the use of an interactive website or a social media account. The lawyer can risk disqualification and also could violate rules of confidentiality if these interactive, business-getting websites are not properly managed. Further, Rule 7.3, prohibiting in-person solicitation, which includes in-person by electronics, has to be honored.
A client who interacts on a website could be classified as a prospective client. The problem with dealing with a prospective client is issues of confidentiality. If a prospective client provides confidential information but doesn’t retain the lawyer, the lawyer could well be barred if the opposing client ultimately contacts and wants to hire the lawyer. Therefore, a lawyer has to be very careful because of conflict of interest Rules 1.7, 1.8 and 1.9. These Rules of Professional Conduct have been modified to some extent for prospective clients by the relatively new Rule 1.18.
A firm should keep a record of who interacts on the website to ensure there are no conflict of interest or confidentiality issues later. It can be very embarrassing for a lawyer to take on a case and find out that three months earlier he or she interacted on a website with a prospective client who now turns out to be the opposing party. This can delay the litigation, potentially raise ethical concerns and be a general embarrassment.
Rule 1.18 deals with the prospective clients. This rule was really adopted to prevent people from abusing the situation or calling law firms for the main purpose of disqualifying all competent counsel. This kind of conduct was seen by the domestic bar in the past, but other areas of law have witnessed people trying to disqualify counsel.
Under Rule 1.18(b), a lawyer cannot use confidential information of a prospective client, or any information that would be harmful to the client. Therefore, if the lawyer receives information that could be significantly harmful to the client, even if the attorney-client relationship is not ultimately formed, the lawyer cannot represent the opposing party that might seek later to retain the lawyer. If the lawyer is disqualified, then no lawyer in the firm can represent the client either.
But the rule has a safety valve under Rule 1.18(d). Under that rule, if the lawyer took reasonable steps to avoid exposure to disqualifying information and the lawyer is then screened from participation and written notice is given to the prospective client, then representation may be allowed. In other words, Rule 1.18 loosened the general conflict of interest rules to allow representation that would have been precluded under a traditional analysis of Rules 1.7 and 1.9.
Therefore, it is not a bad idea when lawyers interact, whether on the telephone or in person or by website with a prospective client, to make a memo of what was said or not said. As noted, a wise lawyer will try to limit the amount of information. If a prospective client wants to disqualify a lawyer, it is going to be pretty obvious to the astute lawyer.
Paragraph 5 to Rule 1.8 notes a lawyer can condition conversations with a prospective client with a statement that no information disclosed will prohibit the lawyer from representing another client. Of course, that disclaimer should be memorialized in writing as soon as possible.
An interactive website creates some serious issues if detailed information is being provided by prospective clients. A website that is interactive should have a disclaimer and a written statement about the information.
The website must clearly suggest, if it is going to be interactive, that there are limitations in terms of what a prospective client should say and/or the information will not preclude the lawyer from representing someone else later. Such a disclaimer is critical and should be included in some fashion.
Therefore, a website that is interactive or any other form of computer communication that is interactive must also contain provisions to protect the lawyer, or else the lawyer may be disqualified from later representation. As was also noted under Rule 7.3, a lawyer cannot interact on a website with a potential client the same way a lawyer cannot interact on the street with a potential client. There can be no in-person solicitation by electronic means under Rule 7.3. On the other hand, if the client initiates the contact, that is a different situation and the lawyer can then interact with the client.
In conclusion, lawyers who are now relying heavily on the Internet and websites and social media to get and obtain clients and to interact with potential clients must be fully aware of the potential conflict and confidentiality issues that can arise. A wise lawyer will study the rules and take the appropriate steps to have disclaimers and limitations of the conversations clearly set forth on the website.
Law firms practicing in several different states must make it clear on their letterhead where each lawyer is licensed.
My law firm has offices in a number of different states. Can the firm keep the same letterhead in each state?
The use of firm names and what is allowed and not allowed is set forth in Rule of Professional Conduct 7.5. Under Rule 7.5(b), a law firm with offices in more than one jurisdiction can use the same law firm name in each jurisdiction. But in doing so, there has to be identification of the lawyers in the firm and their jurisdictional limitations. The firm has to list who is licensed and who is not in a particular jurisdiction where the office is located.
So the letterhead may have five names, but the letterhead also has to note that four of those five names aren’t licensed in a particular jurisdiction.
This would also be true of websites that are advertising in various jurisdictions. If there are lawyers in the firm that are only licensed in certain jurisdictions, then the firm can advertise, but there should be a notation of who is licensed to practice and who is not in any particular state.
The firm has to be careful about hiring someone licensed in another jurisdiction to be able to take advantage of practicing in that state, when in reality that new associate is just a front and the members of the firm are going to be handling the business in that state. The unauthorized practice of law in other states is a serious allegation and could create problems for firms.
If a law firm wants to practice in another state and has a partner or associate’s license in that state, that person has to have primary responsibility. If that is not the case, the law firm may have a serious problem down the road with the disciplinary authorities for the unauthorized practice of law if the associate is not doing his or her job and there are disciplinary issues such as neglect filed against the firm.
Therefore, the firm can certainly practice in multiple jurisdictions and the letterhead can keep the same firm name as long as there is adequate identification of the limitations in practice. But all lawyers who are practicing in multiple jurisdictions must remember that they themselves can only practice in the jurisdictions in which they are licensed without having local counsel and complying with local rules. The fact that the firm has someone licensed in that jurisdiction does not relieve that responsibility unless that person is the primary person involved in the file. Lawyers who are facing that situation should well consider a pro hac vice admission when handling cases where they are not licensed. •
Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pa., 19381.