A good website is valuable 24-hour marketing.
But underneath it lies another web—one of ethical concerns, the main ones being misleading information, unwanted client relationships, and confidentiality breaches.
For that reason, the American Bar Association set out guidelines for attorney websites, Formal Opinion 10-457 developed by the ABA’s Standing Committee on Ethics and Professional Responsibility.
Here, attorney Susan R. Martyn of Toledo, OH, explains the main points of those guidelines. Martyn, who is Stoepler Professor of Law and Values at the University of Toledo College of Law, was a member of the committee that drafted the opinion.
Fraud? On our website?
The first concern is accuracy.
The obvious rule, Martyn says, is that a site can say anything the firm wants “as long as it’s not false, fraudulent, misleading, or deceptive.”
Yet firms unwittingly violate that.
Sometimes violations occur simply because a site is outdated.
Martyn gives the example of a site that says a firm has 12 attorneys. But last month, five of those attorneys left. The website now carries false information.
The same applies if there are changes in the personnel the site mentions. Or more seriously, there can be changes in the law referenced on the site.
To avoid the risk of carrying outdated legal information, Martyn says, put a date on everything. Then when a law changes, it’s clear that the information given is no longer applicable.
Besides the outdated information, watch for statements that are misleading because they fall just a bit shy of precision.
Suppose a firm that specializes in medical malpractice has a statement that “the average amount we have recovered on X type of case is $1 million.” If all the clients included in that count have been very young people and younger people traditionally bring in larger settlements in that type of claim, “an older person may be misled.”
To be accurate, the statement needs to carry a caveat, perhaps that “results vary in each case, and a $1 million recovery may not be typical based on your individual situation.”
An everlasting responsibility
Another concern is responsibility, and the ethics opinion says that the responsibility for a website rests with management, and it’s management that will suffer the consequences if something is awry.
Martyn cites one situation where a firm’s five partners, all managers, hired a web expert and said “make us a website and make it look good.”
They got an attractive site, says Martyn, “but they never went to it and never read it.” And unbeknownst to them, the site implied that someone associated with the firm—a former state governor—was an attorney. In fact, the governor had never passed the bar exam.
An anonymous complaint was made to the bar association, and the court deemed the site misleading.
Then arose the question of who was responsible, and the court ruled that the five partners were equally responsible, so all were reprimanded.
The firm can delegate the site to the marketing people, Martyn says, but ultimately, it’s the firm’s responsibility to see that it follows the rules of legal ethics. “The fact that somebody else does the work doesn’t take away that responsibility.”
And here are our clients!
Can the site identify clients and the types of cases the firm has handled for them?
The answer, Martyn says, is yes. But it needs the clients’ permission to do so.
Without permission, the identification can only be general. If the site in any way identifies someone or references a matter that could identify that person, there could be liability. Suppose a criminal defense firm posts client comments and includes one from somebody in public service. That client could well say “I’m worried about being indicted, and now everybody knows about it because you’ve just identified me as a client.”
The same could happen with a family law firm. Identifying a client tells the world that individual is probably getting represented in a divorce.
What if the clients are already publicly known?
“That doesn’t matter,” Martyn says. The firm still needs their consent—and for good reason. It’s not the firm’s information but the client’s, and putting it on the website doesn’t help that client. “It’s for the firm’s benefit.”
Oral consent is sufficient. All the firm needs to do is say “we’re going to put this information about you on our website. Is that okay?”
But even though there’s no requirement to get the consent in writing, having something in writing is always preferable to not having it in writing.
When information becomes advice
As to the legal information the site carries, accuracy is of course foremost. But along with that is the way the firm presents the information, Martyn says.
Format is not at issue. Some firms present long narratives; some have a few paragraphs; some couch it as “what bankruptcy law does for you”; some use a Q&A format of “do I need a bankruptcy attorney?”
All those formats are fine.
What’s risky is getting into the specifics and crossing the line “between legal information and legal advice.” Go too far, and a visitor might interpret the information as “personalized legal advice,” rely on it, and be harmed.
There is now case law saying that when legal information describes specific facts and essentially tells the visitor “you need to do this or that,” the firm has given advice. And once a firm gives advice, it has a client and that client can rely on what it has said.
Where does the line get crossed?
Martyn gives the example of an attorney talking with a guest at a party. The guest outlines a situation and asks “do I have a cause of action?” Instead of saying “you need to see a lawyer,” the attorney says any action would be frivolous.
The individual does nothing, the statute of limitations runs, the matter is lost, and the firm gets sued for malpractice.
For safety, the site needs to carry a warning that the legal information is not legal advice but general information and that no one should use it as a substitute for talking with an attorney.
It should also say that any attorney has to evaluate all the information about a matter before giving legal advice.
A legal site is much like a medical site, says Martyn. No one can rely on the information to make a diagnosis or determine treatment. Only a doctor can make a medical decision.
The uninvited client
Another ethical issue the opinion addresses is how to handle personal information people send in through the website.
Any information a prospective client provides has to be held confidential, Martyn says. And the reason is obvious. For an attorney and a prospect to determine whether to form a relationship, confidential information has to be discussed—and kept confidential.
But whether a visitor actually becomes a prospect depends on how the site is set up.
Suppose it carries an e-mail link and stops there. There’s no invitation to “send us your information and we’ll evaluate your situation.”
Sending information to the firm through that link does not make someone a prospective client. No one can be a prospect until the firm responds. And because there was no invitation, the firm has no obligation to respond and no obligation to ensure the confidentiality of that information. “It can put it in the trash and that will be the end of it.”
On the other hand, suppose the site carries an invitation of “if you would like to inquire about legal services, send us this form.”
That invitation is the first step to starting a prospective client discussion, and once somebody responds, the discussion has started.
At that point, the firm is obligated to keep that information confidential.
Limit what can be sent in
A related concern is conflicts.
There has to be a restriction on the information people can submit through the site lest it compromise a matter the firm currently represents.
Essentially, there needs to be a statement of “don’t give us any information other than your name, the type of matter you are seeking representation in, and the names of the other parties in the matter. Don’t give us any details of the matter.”
But even that isn’t enough, “because people will attach files to e-mails.” Thus, the site needs to be set up so files can’t be attached. There also need to be restrictions on how much information the form can transmit, perhaps a limit on the number of characters it will accept.
And along with that, there needs to be a warning that the firm “will not be prevented from representing an adverse party.”
Warnings in sight
Where a warning appears and what it says are also important, Martyn cautions.
“If it’s in the bottom corner of the site and isn’t readily apparent to the visitor, it’s no warning at all.” It needs to appear “at the point the person is going to make a mistake.”
A warning about confidential information, for example, needs to be “right where people click to submit the information,” says Martyn. And there should be a stopgap there. The visitor should have to click on an agreement about the confidentiality before the site will accept the form.
But don’t take that too far and add another warning that anybody who sends information waives attorney/client privilege. If someone agrees, sends information anyway, and becomes a client, that statement can boomerang on the firm.
The other side could demand the confidential information with the argument that “the website says you gave up attorney/client privilege so you have to give us that information.”
The safest route, says Martyn, is to leave it at “don’t send any more information than X and Y.”
And about that blog
According to Agnieszka McPeak, Assistant Professor of Law at University of Toledo College of Law, law firms should also be mindful of the ethical concerns as they relate to their blogs, too.
“Some firms have attorney blogs on their websites as well, usually as a separate tab or linking to a blog page that still contains attorney and firm names,” says McPeak. “This raises additional issues as to confidentiality and attorney/client relationships, the same ones Susan Martyn raises.”
“Blogging makes it easier to disclose client confidences online,” says McPeak, “and lawyers tend to misunderstand the broad scope of their duties of confidentiality. I’ve seen examples where attorneys think that their clients’ publicly disclosed information, such as something that came out in open court that day, is fair game for blogging. In one example, an attorney blogged about his client failing a drug test, a fact revealed in open court.”
You might want to consider disabling comments, too. “With blogs, website visitors may post comments to which lawyers may reply,” says McPeak. “This interaction makes it easier for general information to morph into customized advice and risks inadvertent client relationships. or more easily triggers prospective client duties.”
Conclusion
The firm website and blog are great marketing opportunities for law firms to position the lawyers as thought leaders and draw in new clients. Just remember to monitor regularly both the site and the blog to ensure that they don’t inadvertently violate the ethical guidelines.
