Practice Management

6
Sep
2016

Practice Management:

5 legal ethics issues for lawyer websites

Karen Rubin
Cleveland, Ohio



Lawyers remain responsible for ensuring that all communications about themselves and the legal services they offer comply with applicable ethics ruleseven when non-lawyers assist in creating or managing the content of those marketing communications. Here are five legal ethics issues for lawyer websites.

1. Multi-jurisdictional reach of a website raises the issue: What ethics rules do lawyers have to comply with?

Choice-of-law rule: With respect to marketing communications, ORPC 8.5(b) points to the ethics rules where the predominant effect of the conduct occurs.

For conduct not in connection with action before a tribunal, the ethics rules that apply will be "the rules of the jurisdiction in which the lawyer's conduct occurred, or, if the predominant effect of the conduct is in a different jurisdiction, the rules of that jurisdiction shall be applied to the conduct. A lawyer shall not be subject to discipline if the lawyer's conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect of the lawyer's conduct will occur."

ORPC 8.5 cmt. [5] provides a safe harbor where conduct involves significant conduct with more than one jurisdiction: 

"So long as the lawyer's conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect will occur, the lawyer shall not be subject to discipline under this rule."

2. Is a lawyer website "advertising?"

Some jurisdictions, such as New York, say "yes."  See NYRPC 7.1 cmt. [6] (advertising consists of "communications made in any form about the lawyer or the law firm's services, the primary purpose of which is retention of the lawyer or law firm for pecuniary gain as a result of the communication."); NYRPC 7.1(f) ("Every advertisement shall be labeled "Attorney Advertising" on the first page, or on the home page in the case of a web site.")

Although Ohio ethics rules do not define "advertising," all communications concerning a lawyer's services, including "electronic communication" (see ORPC 7.2(a)) must comply with ORPC 7.1.

ORPC 7.1 provides that "A lawyer shall not make or use a false, misleading, or non-verifiable communication about the lawyer or the lawyer's services. A communication is false or misleading if it contains a material misrepresentation of fact or law or omits a fact necessary to make the statement considered as a whole not materially misleading."  (Emphasis added.)
       
3. Avoiding misleading statements via lists of "representative matters"

Trumpeting only successes in a marketing communication may be deemed a misleading or non-verifiable statement.

See, e.g., Advisory Op. 15-04768-A (Conn. Statewide Griev. Comm. July 22, 2015) (firm logo that contained the words "We Win" deemed misleading under Rule 7.1, as "the firm is suggesting that it wins every case and that it will win a prospective client's case regardless of the merits.").

Disclaimers may mitigate the risk of a list of successes being deemed misleading. See ORPC 7.1 cmt. [3] (inclusion of an appropriate disclaimer "may preclude a finding that a statement is likely to create unjustified expectations or otherwise mislead the public.").

Common disclaimer: "Statements on this website of prior results do not guarantee a similar outcome."

4. Prohibition against "non-verifiable" claims requires website statements to be capable of objective verification

See, e.g., Disciplinary Counsel v. Furth, 93 Ohio St. 3d 173, 2001-Ohio-1308 (2001) (statements on website that lawyer was "a passionate and aggressive advocate on behalf of his clients" and "well-known for helping children and their families both within the legal system and outside of it," and "I tend to be tirelessly passionate on behalf of all my young clients" held to be "clearly unverifiable" under former disciplinary rule); Medina Cty. Bar Ass'n v. Grieselhuber, 78 Ohio St. 3d 373 (1997) ("We Do it Well" in an advertisement was unverifiable and violated former disciplinary rule); Disciplinary Counsel v. Bradley, 82 Ohio St. 3d 261 (1998) (advertising that lawyer was a "leader in the creation of quality living trust documents" violated former disciplinary rules).

5. Avoiding creating inadvertent attorney-client relationships via website.

Under Ohio law, the formation of an attorney-client relationship is determined by the client's reasonable belief.

See, e.g., Cuyahoga County Bar Ass'n. v. Hardiman, 100 Ohio St. 3d 260, 798 N.E.2d 369, 373 (2003) (attorney client relationship can be formed based on conduct of the lawyer and expectations of the client."); Henry Filters, Inc. v. Peabody Barnes, Inc., 82 Ohio App. 3d 255, 611 N.E.2d 873 (6th Dist. 1992) (in determining client status, "the ultimate issue is whether the putative client reasonably believed that the [client] relationship existed and that the attorney would therefore advance the interests of the putative client."); Thompson v. Karr, 1999 WL 519297 (6th Cir. July 15, 1999) (same, applying Ohio law); Hamrick v. Union Township, 79 F. Supp. 2d 871 (S.D. Ohio 1999) (after one-half hour telephone conference, would-be client reasonably believed that attorney-client relationship had been formed, disqualifying attorney and firm from adverse representation in substantially related matters).

Providing legal advice via a website, or via an electronic interaction with a prospective client may raise the risk of creating a reasonable belief on the part of the prospective client that an attorney client relationship has been formed.

An interactive exchange on a website (or by e-mail) may likewise be deemed to be a "consultation" that creates the status of "prospective client," and imposes duties of confidentiality on the lawyer even of the client never hires the lawyer.

See ORPC 1.18, "Duties to Prospective Client," cmt. [2] ("Whether communications, including … electronic communications, constitute a consultation depends on the circumstances.  For example, a consultation is likely to have occurred if a lawyer, either in person or though the lawyer's advertising in any medium, specifically requests or invites the submission of information about a potential representation without clear and reasonably understandable warnings and cautionary statements that limit the lawyer's obligations, and a person provides information in response.") (emphasis added).

Thus, appropriate website disclaimers can help prevent lawyers from acquiring "inadvertent clients." E.g., "This website provides general information about [Law Firm] for the convenience of visitors to the website. The site and the content within it are not intended to establish and their use does not establish an attorney/client relationship between [Law Firm] and any visitor. Information on the site is not legal advice. Do not send confidential information to any of our lawyers without first obtaining specific authorization."