Ethics and Your Online Content
Chapter 15. Ethics and Your Online Content
Ethics and Your Website Content
No attorney communications marketing your availability for legal services should be made on the web without a thorough understanding of your local rules of professional conduct relating to attorney advertising. This chapter covers the importance of disclaimers and privacy policies on law firm websites and is a survey of the variations among the various states on these issues.
This is not intended to be comprehensive, nor should it be relied upon as current or complete. Please review your local rules as they pertain to your practice areas.
In connection with your online content, there are ethical considerations to be mindful of. Rule 7.1 of professional conduct, a law which most states mandate, requires that a lawyer’s “communications” not be false or misleading. This standard applies to all of your online content including your website, blog, YouTube channel, social media, etc.
While the rules of professional conduct require that your written materials not be “false or misleading,” there’s very little commentary on the topic of what is understood as “misleading.” The subject of what is “misleading” is beyond the scope of this book but is thoughtfully considered in ABA Formal Opinion 10-457. On the topic of what is misleading, the opinion states that “Lawyers … must be mindful of the expectations created by the website.” What the opinion is really speaking to, without explicitly saying so, is that you manage the expectations of people who come to your website through the use of disclaimers for parts of your website that may be misperceived by laypeople who read your content and make contact with you.
We see a lot of attorney websites with disclaimers and a surprising number lacking them. If your website is among the latter group that does not have a disclaimer, this chapter is aimed at convincing you that you should have a disclaimer on your law firm website. This chapter will also address what that disclaimer should say and includes a sample disclaimer in the appendix, which covers all of the recommended issues.
Some states require disclaimers in certain circumstances. For example, when you include case results or testimonials on your website, many states require that you include a disclaimer which indicates that there is no guarantee or promise of a similar outcome in other cases. However, many important elements of disclaimers are not required by local rules and are often overlooked by attorneys. There are required disclaimers in most states for plaintiffs’ lawyers who advertise that they work on a contingency basis regarding whether the client would be responsible for costs. There are other well-known required tax and bankruptcy disclaimers.
If you’re in a Model Rule state, Rule 7.1 is the provision that covers attorney advertising. It states that nothing you say in your advertising can be false or misleading. Some states like Ohio add “or non-verifiable.” This doesn’t just apply to websites, as this includes Yellow Pages advertising and other collateral material. For the purposes of your online leads Ecosystem, it covers websites, blogs, social media, and any other content you put out onto the web.
What is false, misleading, and non-verifiable? “False” is easy enough. We can’t say things that are untrue, and that just makes sense. We wouldn’t do it anyway. “Non-verifiable” relates to statements like you’re “the best,” “the greatest,” or “the most successful.” Those are the statements you can’t prove and would mislead people who might believe puffery like this to be statements of fact. “Misleading” is the challenging part of Rule 7.1 and requires more analysis. To help us understand how we can keep people from being misled by our online content, it’s worthwhile to consider ABA Formal Opinion 10-457.
The American Bar Association published Formal Opinion 10-457, which I highly recommend that you read. It’s a good opinion about website content and managing the expectations of people who come to your website. Without saying so explicitly, it’s about disclaimers because it’s through your disclaimers that you manage the expectations of people who are coming to your website. It’s a long opinion. It’s also a good opinion and a very interesting read. In the event that you don’t have the time or the inclination to read it, I’ll give you the high points. The three basic takeaways from that opinion are as follows (and this is all in the context of managing the expectations of people who are coming to your website):
1. If you have case results or testimonials on your website, be sure to state that previous results do not guarantee future outcomes. You need to be explicit in this statement so that people understand that if they see an enormous verdict on your website, they won’t think, “That’s the same injury I got. I’m gonna contact this guy, and I’m gonna get the same result.” It’s important to do this in order to manage expectations. California requires it, but many other states may not. In any case, the ABA recommends it, and so do I.
2. Be sure that people understand that what they read on your website is legal information, not legal advice. You don’t want anyone relying to their detriment on your information because that could get you in trouble, especially if it looks like legal advice. Your audience should have a clear understanding that (a) this is just information, not advice, (b) they should not rely on it, (c) there is no substitute for the advice of a competent lawyer, and (d) every case is unique, dependent on every fact and circumstance that goes into the equation.
3. You need to ask yourself this question: When people are making contact with you through your website, do they have an expectation that they are entering into a conversation about establishing an attorney-client relationship?
If it’s a unilateral communication wherein people are just submitting a small bit of information about their case (or even a lot of information about their case), but you have not elicited any specific request for information, and it’s just merely that they emailed you. In that case, there is not a bilateral conversation going on wherein someone could have the idea that you have crossed a line and are establishing the attorney-client relationship. If, however, you have crossed that line, then two things happen: First, you must keep their information confidential. Second, you’re now precluded from representing other people in the controversy.
There are people who purposefully make contact with lots of lawyers through law firm contact forms or by phone and provide case information to preclude the attorneys from representing adverse parties. They are sometimes called “taint shoppers.” Do your best to avoid them, at all costs.
In short, you need to have a disclaimer on your site because you MUST manage the expectations of the people who come to your website, so sayeth the ABA. Because the ABA recommends it, you should do it.
Do people read the website disclaimer? Maybe, maybe not. Does it help to manage their expectations? Maybe, maybe not. However, the one thing that the disclaimer does absolutely do is tell your licensing authority and your ethics board that you are doing what you can to manage expectations. So, while it may not ultimately be read or understood by anyone who comes to your website, the state bar and the ethics board will see that language on your website and say, “Hey, look, this guy’s trying. He’s doing his best under ABA Formal Opinion 10-457.” So that’s why you want to do it.
And so, that’s my argument: First, you manage the expectation, so you’re doing the courtesy to the people who come to your website, and you’re also making the ABA and your ethics board happy.
Here is a quick reference of recommended elements for a disclaimer, and a complete disclaimer that you can use can be found in Appendix B.
- This is legal information, not “legal advice.”
- There is NO attorney-client relationship established by reading our website or contacting us.
- Your submission may not prevent us from representing an adverse party. Don’t send us sensitive information before we represent you.
- We are not responsible for the content of sites to which we link.
- Links and connections to other firms are not referrals or recommendations.
In addition to the disclaimers discussed above, for certain practice areas there are required disclaimers.
IRS Circular 230:
If you are a tax lawyer, you need to have the following disclaimer:
To ensure compliance with requirements imposed by the IRS in Circular 230, we inform you that, unless expressly stated otherwise in this communication (including attachments), any tax advice contained in this communication is not intended or written to be used, and cannot be used, for the purpose of:
(i) avoiding penalties under the Internal Revenue Code or
(ii) promoting, marketing or recommending to another party any transaction or other matter addressed herein.
If you are a bankruptcy lawyer, you’ll need this disclaimer:
We are a debt relief agency. We help people file for bankruptcy relief under the Bankruptcy Code.
Immigration Law Disclaimer
If you are an immigration lawyer in California, Business and Professions Code Section 6157.5(a) requires the following disclaimer:
(a) All advertisements published, distributed, or broadcasted by or on behalf of a member seeking professional employment for the member in providing services relating to immigration or naturalization shall include a statement that he or she is an active member of the State Bar, licensed to practice law in this state. If the advertisement seeks employment for a law firm or law corporation employing more than one attorney, the advertisement shall include a statement that all the services relating to immigration and naturalization provided by the firm or corporation shall be provided by an active member of the State Bar or by a person under the supervision of an active member of the State Bar.
Many states require that if you have the statement on your website that you handle cases on a contingency fee basis, then you must also disclose who will be liable for court costs and other expenses related to the case. If you take cases on a contingency fee basis, you should check to see what your local rules say on this point:
Arizona Rule 7.2(d)(1)
(d) Every advertisement (including advertisement by written solicitation) that contains information about the lawyer’s fees shall be subject to the following requirements:
(1) advertisements and written solicitations indicating that the charging of a fee is the client will be liable for expenses regardless of outcome unless the repayment of such is contingent upon the outcome of the matter and (B) whether the percentage fee will be computed before expenses are deducted from the recovery.
California Rule 1-400(E)(14)
(14) A “communication” which states or implies “no fee without recovery” unless such communication also expressly discloses whether or not the client will be liable for costs.
(d) A statement that a member offers representation on a contingent basis unless the statement also advises whether a client will be held responsible for any costs advanced by the member when no recovery is obtained on behalf of the client. If the client will not be held responsible for costs, no disclosure is required.
Colorado Rule 7.1 (d)
(d) Any communication that states or implies the client does not have to pay a fee if there is no recovery shall also disclose that the client may be liable for costs. This provision does not apply to communications that only state that contingent or percentage fee arrangements are available, or that only state the initial consultation is free.
Connecticut Rule 7.2 (f)
(f) Every advertisement and written communication that contains information about the lawyer’s fee, including those indicating that the charging of a fee is contingent on outcome, or that no fee will be charged in the absence of a recovery, or that the fee will be a percentage of the recovery, shall disclose whether and to what extent the client will be responsible for any court costs and expenses of litigation. The disclosure concerning court costs and expenses of litigation shall be in the same print size and type as the information regarding the lawyer’s fee and, if broadcast, shall appear for the same duration as the information regarding the lawyer’s fee. If the information regarding the fee is spoken, the disclosure concerning court costs and expenses of litigation shall also be spoken.
Florida Rule 4-7.2 (c)(7)
Every advertisement and unsolicited written communication that contains information about the lawyer’s fee, including those that indicate no fee will be charged in the absence of a recovery, shall disclose whether the client will be liable for any expenses in addition to the fee.
Georgia Rule 7.1(a)(5) & (6)
(5) contains any information regarding contingent fees, and fails to conspicuously present the following disclaimer:
“Contingent attorneys’ fees refer only to those fees charged by attorneys for their legal services. Such fees are not permitted in all types of cases. Court costs and other additional expenses of legal action usually must be paid by the client.”
(6) contains the language “no fee unless you win or collect” or any similar phrase and fails to conspicuously present the following disclaimer:
“No fee unless you win or collect” (or insert the similar language used in the communication) refers only to fees charged by the attorney. Court costs and other additional expenses of legal action usually must be paid by the client. Contingent fees are not permitted in all types of cases.
Indiana Rule 7.2(b)
The following constitute examples of permissible areas in which a lawyer may advertise: (19)(C) contingent fee rates provided that the statement discloses whether percentages are computed before or after deduction of costs.
Iowa Rule 32:7.2: (h)(1)
Fee information may be communicated to the public in the manner permitted by this rule, provided it is presented in a dignified style. (iii) contingent fee rates, subject to rule 32:1.5(c) and (d), provided that the statement discloses whether percentages are computed before or after deduction of costs and advises the public that, in the event of an adverse verdict or decision, the contingent fee litigant could be liable for court costs, expenses of investigation, expenses of medical examinations, and costs of obtaining and presenting evidence.
Kentucky SCR 3.130(7.04)
If the client is required to pay court costs and/or case expenses in addition to the attorney’s fee, the advertisement shall state in all capital letters, “COURT COSTS AND CASE EXPENSES WILL BE THE RESPONSIBILITY OF THE CLIENT.”
Louisiana Rule 7.1 (a)(viii)
Communications that state or indicate that no fee will be charged in the absence of recovery shall disclose that the client will be liable for certain expenses in addition to the fee, if such is the case.
Maryland Rule 7.2(e)