Lawyers’ Electronic Advertising: - PowerPoint Presentation

Lawyers’ Electronic Advertising: Websites, Blogs, LinkedIn, etc. J. Nick Badgerow Spencer Fane LLP

Overview OLD RULE: NO ADVERTISING MODERN RULE: REGULATED ADVERTISING FOCUS ON MODEL RULE 7.1:NOT FALSE OR MISLEADINGNOT CREATE FALSE EXPECTATIONSADVERSTISING AND SOCIAL MEDIA:FACEBOOK, TWITTER, E-MAIL, BLOGSLINKEDINAVVOPRACTICAL SUGGESTIONS

YE OLDE RULES “LAWYERS DO NOT ADVERTISE” IMPOLITE – VIOLATION OF ETIQUETTE UNSEEMLY AND UNGENTLEMANLY MODEL CODE OF PROFESSIONAL RESPONSIBILITY (1969 - 1988):SHALL NOT PUBLICIZE HIMSELF THROUGH NEWSPAPER OR MAGAZINE ADVERTISEMENTS, RADIO OR TELEVISION ANNOUNCEMENTS, DISPLAY ADVERTISEMENTS IN THE CITY OR TELEPHONE DIRECTORIES BIOGRAPHICAL AND OBJECTIVE INFO = OK

BATES V. STATE BAR OF ARIZONA 1977 – U.S. SUPREME COURT STATE BAR RULE PROHIBITING LAWYER NEWSPAPER ADVERTISING = UNCONSTITUTIONAL – FIRST AMENDMENT STATE CANNOT CONSTITUTIONALLY PROHIBIT AD AD: LAWYER’S WILLINGNESS TO PROVIDE “ROUTINE” LEGAL SERVICES AT SPECIFIED PRICES

ZAUDERER V. OFFICE OF DISCIPLINARY COUNSEL – OHIO 1985 – U.S. SUPREME COURT PICTURE OF A DALKON SHIELD (I.U.D.) CLIENTS COULD ASSERT CLAIMSNOT PROHIBIT AD

SHAPERO V. KENTUCKY BAR ASSOCIATION 1988 – U.S. SUPREME COURT STATE COULD NOT BAN DIRECT MAIL ADVERTISING BY LAWYERS BAN ON DIRECT PERSONAL SOLICITATION STILL APPROPRIATE = BECAUSE IT MIGHT INVOLVE FRAUD, UNDUE INFLUENCE, INTIMIDATION, OVERREACHING, VEXATIOUS CONDUCT

THE TEST PROHIBIT FALSE OR MISLEADING AD SUBSTANTIAL GOVERNMENTAL INTEREST, E.G. PREVENT POTENTIAL ILLS OF IN-PERSON, DIRECT SOLICITATION REGULATION MUST DIRECTLY ADVANCE STATE INTEREST REGULATION MUST BE REASONABLE, NARROWLY DRAFTED

MODEL RULES OF PROFESSIONAL CONDUCT M.R.P.C. = 49 STATES + VIRGIN ISLANDS AND D.C. CALIFORNIA ALONE HAS NOT ADOPTED THE MODEL RULES. KANSAS: RULES 7.1 – 7.5RULE 1.1: KEEP ABREAST OF BENFITS AND RISKS ASSOCIATED WITH RELEVANT TECHNOLOGY

RULE 7.1 NOT MAKE A FALSE OR MISLEADING COMMUNICATION = NO MATERIAL MISSTATEMENTS OF FACT OR LAW NOT CREATE UNJUSTIFIED EXPECTATIONS FOR RESULTS NO UNSUBSTANTIATED COMPARISONS WITH THE SERVICES OF OTHER LAWYERS

RULE 7.2 MAY ADVERTISE ELECTRONICALLY KEEP RECORDS OF ADVERTISING FOR TWO YEARS NOT PAY FOR RECOMMENDATIONSEXCEPT NON-PROFIT LAWYER REFERRAL SERVICEINCLUDE AT LEAST ONE LAWYER’S NAME IN AD

RULE 7.3 NO IN-PERSON, LIVE TELEPHONE, OR REAL-TIME ELECTRONIC SOLICITATION UNLESS: PERSON IS A LAWYERFAMILY, CLOSE PERSONAL, OR PRIOR PROFESSIONAL RELATIONSHIPNO SOLICITATION EVEN IF NOT OTHERWISE PROHIBITED IF:TARGET SAYS NO CONTACTORCOERCION, DURESS, HARASSMENTIF SOLICITING SOMEONE KNOWN TO NEED A LAWYER “ADVERTISING MATERIAL” ON ENVELOPE + BEGINNING AND END PREPAID OR GROUP LEGAL SERVICE PLAN IS OK

RULE 7.4 FIELDS OF PRACTICE COVERED OR EXCLUDED BY LAWYER PATENT ATTORNEY ADMIRALTY NOT SAY “CERTIFIED” UNLESS:ORGANIZATION APPROVED BY STATE BAR (NONE) OR ABANAME OF ORG. CLEARLY IDENTIFIED

RULE 7.5 FIRM NAME – OK IF NOT VIOLATE RULE 7.1 TRADE NAME – NOT IMPLY GOV’T. CONNECTION IDENTIFY STATES OF ADMISSIONNOT INCLUDE PUBLIC OFFICIAL IN FIRM NAME IF LAWYER NOT ACTIVELY INVOLVED IN PRACTICENOT IMPLY PARTNERSHIP OR OTHER ORG. IF NOT TRUE

LAW FIRM WEBSITES INTERNET ADVERTISING IS ADVERTISING ABA OPINION 10-457 (2010) WEBSITES NOT CONTAIN FALSE/MISLEADING INFORMATIONWATCH WEBSITE TO MAINTAIN ACCURACY AND CURRENCYMAKE SURE THAT UNINTENTIONAL ATTORNEY-CLIENT RELATIONSHIPS ARE NOT FORMED

OP. 10-457 REVIEWS RULES RULE 7.1: NO FALSE OR MISLEADING COMMUNICATIONS RULE 8.4(C): NO DISHONESTY, FRAUD, DECEIT OR MISREPRESENTATIONRULE 4.1: NO FALSE STATEMENT OF MATERIAL FACT OR LAW TO A THIRD PERSON

OP. 10-457 ALLOWS WEBSITE TO CONTAIN: INFORMATION ABOUT THE LAWYER. BIOGRAPHICAL & HISTORICAL CLIENT INFORMATION (WITH INFORMED CONSENT). INFORMATION ABOUT THE LAW. ACCURATE – NOT MATERIALLY MISLEADINGINTERACTIVE WEBSITES. DISCLAIMER = NO ATTY/CLIENT RELATIONSHIP IS CREATED

OP. 10-457 - GUIDANCE FOR WEBSITES UPDATED – ON A REGULAR BASIS ACCURATE AND CURRENTDISCLAIMERS. NOT CREATE UNJUSTIFIED EXPECTATIONSNOT MISLEAD NO ADVICE. SAY INFO. IS GENERAL IN NATURE – NOT ADVICE NO ATTY/CLIENT RELATIONSHIP (1) NO CLIENT-LAWYER RELATIONSHIP; (2) INFORMATION WILL NOT BE KEPT CONFIDENTIAL; (3) NO LEGAL ADVICE HAS BEEN GIVEN; AND (4) LAWYER WILL NOT BE PREVENTED FROM REPRESENTING ADVERSE PARTY. SEE RULE 1.18: PROSPECTIVE CLIENT COULD BE “CLIENT” – MAKE IT CLEAR

LAWYER BLOGS RULE 7.1 – NO FALSE OR MISLEADING COMMUNICATIONS RULE 1.6 – CLIENT CONFIDENTIALITYRULE 3.6 – TRIAL PUBLICITY. SUBSTANTIAL LIKELIHOOD OF MATERIALLY PREJUDICING AN ADJUDICATIVE PROCEEDING.RULE 4.1 AND 8.4(B) – NO MISREPRESENTATION RULE 4.4 – RESPECT FOR OTHERS. “NO SUBSTANTIAL PURPOSE OTHER THAN TO EMBARRASS, DELAY OR BURDEN A THIRD PERSON.” RULE 7.2 – IDENTIFICATION. IDENTIFY THE LAWYER BY NAME AND OFFICE ADDRESS. KEEP COPIES TWO YEARS RULE 7.3 – NOT SOLICIT. INTERACTIVE BLOGS SHOULD AVOID CREATING ATTORNEY-CLIENT RELATIONSHIP (OR APPEARANCE OF RELATIONSHIP) BETWEEN THE LAWYER AND OTHER POSTERS. RULES 5.1 & 5.3 – RESPONSIBILITY OF FIRM FOR LAWYER AND NON-LAWYER EMPLOYEES

FACEBOOK, TWITTER, E-MAIL, OTHER SOCIAL MEDIA RULE 7.3(B): NOT SOLICIT PROFESSIONAL EMPLOYMENT BY REAL-TIME ELECTRONIC CONTACT IF: TARGET SAYS NO – OR - COERCION, DURESS OR HARASSMENT ISSUE: HOW EASILY CAN PROSPECTIVE CLIENT IGNORE THE SOLICITATION?(A) SOLICITATION IN REAL-TIME CHAT ROOM = PROHIBITED TWEETS, POP-UP CHATS ON A FIRM WEBSITE, E-MAILS, REQUESTS FOR A “LIKE” ON FACEBOOK CAN BE IGNORED = PERMITTED.

LINKEDIN REGISTER PERSONAL BIOGRAPHY PHOTOGRAPH EDUCATIONEMPLOYMENTHONORS AND AWARDSLINKS TO ARTICLES, BLOGS AREAS OF PRACTICE. CONNECT WITH OTHER MEMBERS (500,000,000)RECOMMENDATIONSENDORSEMENT

LINKEDIN: RISKS AND RULES FALSE SPECIALIZATION? 7.4(A): NOT STATE/IMPLY CERTIFIED AS SPECIALIST UNLESS ACTUALLY CERTIFIED HIGHER STANDARD OF CARE? EXPERT OR SPECIALIST, HIGHER THAN ORDINARY LAWYERCLIENT CONFIDENCES? CLIENT DISCLOSURE VIA RECOMMENDATION? FALSE ADVERTISING? ENDORSEMENT WITHOUT KNOWLEDGE IS THAT A “COMMUNICATION” BY THE LAWYER? 7.1(C): NOT CREATE UNJUSTIFIED EXPECTATION LAWYER IS RESPONSIBLE FOR ANY RECOMMENDATIONS / ENDORSEMENTS/ RATINGS GIVEN TO LAWYER ON A THIRD-PARTY WEBSITE, E.G. LINKEDIN DO NOT ACCEPT RECOMMENDATIONS WITHOUT FOUNDATION PAYING FOR ADVERTISING? RULE 7.2(C) – NOT PAY FOR ENDORSEMENT, OR AGREE TO MUTUAL ENDORSEMENTS (VALUE)

LINKEDIN: PRACTICAL STEPS MEMBER = CONTROL YOUR PROFILE CAN TURN OFF OPTION WHICH ADDS ENDORSEMENTS – OR –WATCH YOUR PROFILE. KEEP IT ACCURATE, CURRENT, NOT IMPLY SPECIALIZATION WATCH YOUR RECOMMENDATIONS. ADD ENDORSEMENT ONLY IF:ACCURATE AND NOT MISLEADINGNOT CONTAIN PRIVILEGED, WORK PRODUCT, OR CLIENT CONFIDENTIAL INFORMATION NOT CREATE FALSE AND UNJUSTIFIED EXPECTATIONS WATCH YOUR ENDORSEMENTS. REVIEW THEM AREA IN WHICH YOU ACTUALLY PRACTICE DELETE ANY = NOT ACCURATE NEW YORK ETHICS OPINION = ETHICAL DUTY TO MONITOR AND CONTROL UNJUSTIFIED ENDORSEMENTS

AVVO & OTHER REFERRAL SOURCES AVVO = WEBSITE REFERRAL SOURCE “NEARLY EVERY LICENSED LAWYER IN THE U.S.” = 97% = 1.276,094 LAWYERSPROFILES, REVIEWS, AVVO RATING ON-CALL SERVICE = IMMEDIATE LEGAL ADVICE = PAY $39$8 BILLION IN REVENUE TO LAWYERS ANNUALLY 650,000 CONTACTS EACH MONTH11.3 MILLION SEARCHABLE QUESTIONSCONTRACTS WITH LAWYERS:AVVO COLLECTS FROM CLIENT AVVO PAYS LAWYER AVVO TAKES ITS PERCENTAGE SHARE (“MARKETING FEE”) CONTINGENT ON COLLECTING FROM CLIENT

IS AVVO LEGAL? NEW JERSEY JOINT OPINION 44 (JUNE 21, 2017) RULE 5.4: NOT SHARE LEGAL FEES WITH A NONLAWYER RULE 7.3(D): PERMITS PREPAID OR GROUP LEGAL SERVICE PLANS, BUT ONLY TO SOLICIT MEMBERSHIPS OR SUBSCRIPTIONS FROM PERSONS WHO ARE NOT KNOWN TO NEED LEGAL SERVICESAVVO CHARGES AND COLLECTS FROM ATTORNEY UPON THE PERFORMANCE OF WORK BY THE LAWYER AND PAYMENT BY THE CLIENTAVVO “REFERRAL FEES” VARY BY SERVICE RENDERED RULE 7.2(C): NOT GIVE ANYTHING OF VALUE TO A PERSON FOR RECOMMENDING THE LAWYER'S SERVICES EXCEPT NOT-FOR-PROFIT LAWYER REFERRAL SERVICE S. CAROLINA; PENN.; N.Y.; OHIO; N.J.; UTAH = ALL SAY NO LEGALZOOM AND ROCKET LAWYER = DO NOT CHARGE SHARED FEES DISGUISED AS MARKETING FEES = OK

CONCLUSION KEEP UP WITH TECHNOLOGY KEEP IT ACCURATE, UPDATED NOT PROMISE OR IMPLY RESULTSNOT CREATE ATTY/CLIENT RELATIONSHIPNOT PAY FOR REFERRALS

Lawyers’ Electronic Advertising: Websites, Blogs, LinkedIn, etc. J. Nick Badgerow Spencer Fane LLP