Ethical Issues in Legal Digital Marketing

by | Law Firm Marketing Ethics

An image of a chalkboard with the words, “know the rules,” representing the need for law firms to be well-informed of ethical issues in legal digital marketing.

Law firms that lack a digital marketing strategy and do not publish informational content online are missing a valuable opportunity to attract and engage potential clients, according to the American Bar Association’s (ABA’s) TECHREPORT 2018. Those who employ effective digital marketing strategies have the opportunity to convert a larger population of potential clients. But when moving into the digital frontier, attorneys and law firms need to understand how the ethics rules regulate this new dimension of attorney advertising.  

What Law Firms Need to Know about Ethical Issues in Legal Digital Marketing

Each state’s ethics rules apply to all aspects of an attorney’s conduct: the attorney’s competence, communications with clients, communications about clients, confidentiality, fees, and more—including advertising. When marketing for attorneys and law firms was limited to print and the occasional broadcast ad, the rules were fairly straightforward.

The entry of law firm advertising into the digital age has caused a reexamination of the ethics rules as applied to this new forum. Those engaged in marketing for attorneys and law firms need to be mindful of how ethical issues in digital marketing may result in unexpected applications of the rules they thought they knew so well.

The History of Ethics Rules and Attorney Advertising

The ethics of attorney advertising has been a hot topic for decades. From the early 1900s to the late 1970s, legal advertising was not allowed in most states. That changed when the Supreme Court of the United States handed down its opinion in Bates v. State Bar of Arizona, where it held that rules of the State Bar of Arizona and the Arizona Supreme Court prohibiting advertising by attorneys were unconstitutional.

Since then, attorney advertising has become commonplace, but not without controls. The ABA provides guidance for states and legal professionals in its Model Rules of Professional Conduct (MRPC), and most states pattern their own ethics rules after the MRPC. The ABA also issues advisory opinions that provide hypothetical application of the rules to real-world scenarios.  

Ethical Issues in Legal Digital Marketing: ABA Formal Opinion 480 and the Model Rules

Technology has introduced a new realm of possibilities for legal marketing. The new digital avenues have the potential to cost-effectively reach masses of potential clients in new and interactive ways, but ethical issues in digital marketing should still be at the forefront of any law firm or attorney marketing plan.

In recent years, the ABA has examined application of the MRPC to legal digital marketing activities. One example is ABA Formal Opinion 480, which attempts to clarify applications of the Model Rules to legal blogging and other “public commentary.” The opinion draws attention to how the following rules apply:

  • Model Rule 1.6, regarding confidentiality of client information, applies to digital content. Lawyers must protect and maintain confidentiality unless consent is given by the client or another exception applies.
  • Model Rule 3.5, regarding impartiality and decorum, prohibits attorneys from making public commentary of any kind with the intention of persuading a judge, jury, or public official.
  • Model Rule 3.6, related to publicity of trials, places further limitations on public speech by attorneys that could create prejudice in an ongoing investigation or litigation.

The choice of rules discussed was not surprising, but in some ways their application was. For example, many were stunned to learn that the ABA considered online publication of information regarding a case or client—in a blog or otherwise—to violate Model Rule 1.6 even if the case was concluded and the information communicated is public information unless the client had consented to the publication.

This reading of Model Rule 1.6 would allow lawyers who were not involved in a case to blog about it but would prohibit those who had represented the parties involved from publishing even information generally available to the public, such as the outcome of the case. You can read more about ABA Formal Opinion 480 in our preview blog.  

Additional Rules Governing Ethics Issues in Legal Marketing

ABA Formal Opinion 480 highlighted rules commonly understood to be implicated by attorney publications, but other Model Rules are also relevant to law firm digital marketing:

  • Model Rule 7.1, regarding communications of legal services, prohibits misrepresentation or omission of facts related to an attorney, firm, or services provided. This applies to obvious misstatements of fact in legal articles and page content, but more subtle infractions could include inaccurate or unclear titling of a website, declaring the firm to be the “top” in an area without concrete substantiation for that distinction, or predicting a “win” for clients.
  • Model Rule 7.2, expands upon the limitations of Rule 7.1 and recommends that attorneys use caution in representing themselves as experts or specialists, unless the attorney is, indeed, certified by an accredited authority in the field. Many states ethics rules follow suit, requiring attorneys advertising any type of specialty to be certified by the appropriate authority approved in the jurisdiction.

Mass communication in a digital format can also muddy the waters defining attorney relationships. Online question-and-answer forums or even articles or blogs discussing points of law may cause the reader to believe that an attorney-client relationship exists.

Attorneys using digital media for such exchanges should take steps to prevent such misunderstandings, first by investigating whether such public communications are permitted in the jurisdictions in which they practice and also by posting a clear disclaimer stating, at a minimum, that the communication does not create an attorney-client relationship.  

Online Legal Marketing: Asking Permission or Forgiveness?

Understanding the ethics rules in the jurisdictions in which your firm operates is not always an easy task. Although most jurisdictions base their professional conduct rules on the Model Rules, each state may put its own spin on those rules. When experiencing difficulty determining how a particular rule applies, the safest course is often asking for help. Many jurisdictions offer advisory opinions to help law firms stay in compliance.

Sometimes, asking in advance of publication is required. For example, in Kentucky, a law firm website is considered an advertisement. As such, a law firm must submit its website for review and approval by the Kentucky Attorneys’ Advertising Commission before publishing it online. Although this is an extreme example, it highlights the importance of defining what the ethical issues are for online legal marketing.  

Avoid Ethical Issues in Legal Digital Marketing

Digital forums offer a broad reach, but law firms must then rein in the corresponding exposure to the ethics rules across the country. Each state’s professional conduct rules are typically based on the Model Rules and other recommendations of the ABA, but they are not all the same.

Law firms taking advantage of digital marketing opportunities should examine the applicable ethics rules in all jurisdictions in which they practice. When in doubt, err on the side of caution when it comes to ethical issues in digital marketing.

From drafting a clear disclaimer to knowing when publications regarding clients and cases are permissible, ethical issues in legal digital marketing provide a lot of food for thought. The attorney-driven team at TOPDOG Legal Marketing specializes in digital marketing for attorneys and law firms nationwide. We know how to optimize your online presence in an ethical way and help you “get found” online. Contact us today to learn more— (844) HEY-TDOG (439-8364).

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