Don’t get your client in trouble. What you don’t know can hurt your client.
Unlike other businesses offering professional services, attorneys and law firms are subject to limitations with online content. These limitations dictate what can and cannot be advertised or otherwise asserted.
The rules vary by state, so it is important for any web designer or SEO specialist to consult the rules regarding attorney advertising in the state or states where their attorney clients practice and then follow those rules. There will be much more to it than simply slapping a “This is not legal advice” disclaimer in the footer.
Below are some examples of rules regarding law firm web content — they are by no means comprehensive. Again, please consult the attorney ethics rules in the state(s) where your client practices law for the rules applying to your client.
First, web content such as websites, blogs, advertisements on others’ websites and emails is generally considered “advertising” and “communications” regarding the attorney’s practice within the ethical rules of each state. Here in New Jersey, where our firm Sagapixel is based, this web content is governed by the Rules of Professional Conduct:
This is a rule that is imposed upon attorneys nationwide in some form or another and goes far beyond the proscription of words such as “most” or “best,” as in “Ms. Attorney is the best bankruptcy attorney.” That sort of thing is an obvious no-no.
In New Jersey, this rule is set forth generally in RPC 7.1, which proscribes or restricts the following, among others:
Describing an attorney’s area of practice as a “specialty” or that an attorney has “expertise” is greatly limited, if not disallowed in most states.
Here in New Jersey, use of such words in attorney advertising was forbidden unless the attorney was certified by the Supreme Court of New Jersey or an organization approved by the American Bar Association, pursuant to RPC 7.1 and RPC 7.4. But in 2018, the Committee on Attorney Advertising relaxed this rule, permitting the use of these terms when the attorney has the necessary education, training and experience to qualify as an “expert” or “specialist” in the area of practice claimed.
The use of a badge representing an award or honor received by your client may be restricted or forbidden. For example, in New Jersey, such a badge may be posted on an attorney site only if:
In some states, both law firm names and domain names are content restricted and in many of those, they must include an attorney’s name.
Recently in New Jersey, the Supreme Court found that a law firm’s domain name may be different from the law firm name, but it cannot be in any way false or misleading. Additionally, the firm’s home page must include:
So, when your client comes to you for a new website having purchased the domain name “Ialwaysprevail.com,” you will know how to advise.
Attorneys should also set forth the jurisdictions in which they practice on the home page in case a person not in those jurisdictions visits the page. In New Jersey, that is misleading advertising because it is an offer of legal services in an unauthorized jurisdiction.
This requirement is universal — attorneys must add disclaimers to their communications and advertising that by communicating and advertising they are not giving “legal advice” and have not created an “attorney-client relationship.”
In these days of pervasive social media, you can frequently find attorneys answering legal questions posted in law forums and blogs, via tweets on Twitter or posts on Facebook. This can be problematic for two reasons:
It is easy to imagine a poster relying on what an attorney tweets to the poster’s detriment and then suing the attorney for malpractice, asserting that the attorney gave legal advice and there was an attorney-client relationship. The poster could have a cognizable argument.
To my knowledge, all states forbid attorneys from explicitly promising a favorable outcome in advertising. In New Jersey, an attorney is also forbidden from implying that there will be a favorable outcome by citing success in previous matters. If previous successful matters are referenced on the law firm site, they must be accompanied by a disclaimer that success is not guaranteed.
Simply put, we advise our clients that all online content must be correct and true under the Rules of Professional Conduct. We also advise regarding the above-mentioned caveats and disclaimers as applicable to the client’s web copy and blog content.
An attorney client will seldom overstep, but as a customer service matter we keep an eye out for possible ethical infractions and are prepared to advise accordingly. Ultimately, the attorney is responsible for monitoring the content of all communications with the public — including their websites. For your own protection, you should find out if this is the same in your state.