Establishing, Maintaining, and Using An Ethical Legal Website

November 23, 2006

By Douglas J. Brocker and Deanna S. Brocker

At the turn of the 21st Century, a law firm or attorney with a website was the exception and not the rule. Less than seven years later, most large and medium size firms in North Carolina, including almost all established, traditional firms, have a significant website presence. Even many small law firms and solo practitioners now maintain their own website and use it and other electronic means to attract clients and deliver services in ways not even contemplated or envisioned a decade ago. But what are the ethical rules that apply to this established but relatively new marketing tool? This article explores some of these issues, including the website’s purpose, domain name, and content, use of the internet to attract potential clients, terms of use and e-mail disclaimers, virtual law office, use of a website to deliver unbundled legal services, and application service providers.

Establishing a Website Presence

In either establishing or redesigning a law firm website, the first step is deciding what its primary purpose will be. Some firms and lawyers use their websites primarily for reference or general information about themselves, sometimes referred to as “passive marketing.” Many others, including many traditional North Carolina firms, use their websites to actively and sometimes aggressively market their practices and services. Either way, a law firm’s website will be subject to the State Bar’s general rules on advertising as well as the specific ethics opinions on websites discussed herein.

The next step is selecting a website domain name or Uniform Resource Locator (URL) designation. Even this basic decision implicates the ethics rules. First, if the website domain name “is more than a minor variation of the official name of the firm, it must be registered with the State Bar [as a trade name] in accordance with Rule 7.5(a) …” 2005 FEO 8. Second, the URL or domain name cannot be false or misleading, as with any other firm trade name. The State Bar, however, will permit the use of domain names, even when it is not apparent that the website is for a law firm. Examples of such approved domain names include “Druginjury.com” and “NCworkinjury.com.” The website home page, however, must clearly and unambiguously identify the site as belonging to a law firm or lawyer. 2005 FEO 14.

A law firm also must decide whether to use metatags in its website to actively solicit potential clients. Metatags are hidden data in the HTML (hypertext mark-up language) for websites and are used to describe the contents of a website and to manipulate search engines. While there is no ethics opinion on point, Rule 7.1’s prohibition against misleading communications about the lawyer’s services is broad enough to cover metatags. They are a form of advertising, and as such, would probably be subject to the same restrictions as any other form of legal advertisement.

Maintaining a Website Presence
Website Content: What is Permitted and Prohibited

With regard to the content of a website, the general advertising Rules apply. RPC 239. The North Carolina Rules of Professional Conduct now explicitly state that they apply to electronic communications, such as websites. Rule 7.2(a) and 7.3(b) & (c). As with any communication about the lawyer or the lawyer’s services, a website cannot contain any false or misleading communication, including one that:

  1. Contains a material misrepresentation of fact or law or omits a material fact necessary to make the statement not misleading
  2. Includes representations likely to create unjustified expectations or otherwise states or implies that the lawyer can achieve results in ways that violate the Rules
  3. Compares the lawyer’s services with others unless the comparison can be factually substantiated.

Rule 7.1(a); RPC 239. Like all advertisements, a website must affirmatively identify a physical office address (not merely a P.O. Box) and the name of at least one lawyer or law firm responsible for its content. Rule 7.2(c); RPC 239. It also is permissible for a lawyer or law firm to include areas of practice or concentration even if the lawyer is not a certified specialist in any area. RPC 239.

Websites are unlike other forms of advertising in a few key areas. Because websites are readily accessible to people all over the country and world, North Carolina lawyers should identify the jurisdictions in which they are licensed to practice law to avoid any ambiguity or misrepresentation. RPC 239. This is particularly true if a law firm website promotes itself as a “national” firm or similar designation. Failure to designate jurisdictional limitations in a website may also run afoul of other state’s unauthorized practice laws. On the other hand, a law firm’s website clearly designating itself as a North Carolina firm or as having only North Carolina lawyers would be less likely to violate other states’ unauthorized practice rules because there is no ambiguity about jurisdictional limitations. A law firm having offices and clients only in North Carolina could not market itself as a “national practice” because it would be misleading under Rule 7.1.

Because websites are flexible and easy to change, unlike yellow page advertisements, lawyers and law firms have a higher obligation to maintain current and accurate information on them. For example, if a lawyer or practice section leaves a firm, the website should be updated as soon as possible.

Websites also are unique in that they permit inclusion of a much larger range of possible content not practical in other, more traditional advertising or marketing media. This includes information such as client lists, attorney resumes or bios, detailed descriptions of practice areas and client testimonials. Not all client testimonials are acceptable forms of advertising. Some client endorsements or testimonials containing truthful information may be included in a website with the client’s consent. For example, “soft endorsements,” touting a lawyer’s responsiveness, diligence and efficiency, are permissible. However, the use of actors to pose as clients, the use of endorsements relating to a specific result or outcome in a case, or a comparison of the lawyer’s services to others violates the Rules. A good rule of thumb: a client testimonial cannot say anything the lawyer could not say directly.

The State Bar has stated that lawyers may include verdicts records on their website—at least theoretically. 2000 FEO 1. Generally, statements about the lawyer’s record in obtaining favorable verdicts have been prohibited in other forms of advertisements because they tend to create unjustified expectations. Nonetheless, the State Bar acknowledges that it is possible to provide enough context in a website to avoid being misleading. This context would have to include information about the lawyer’s unfavorable verdicts and settlements, success in collecting favorable verdicts, whether the cases were contested, and whether the opposing party was represented, among other items. To date, the State Bar has not approved any verdict records on a website.

The Use of the Web to Attract Potential Clients

Increasingly, lawyers are using either their own websites or other internet-based services to solicit and obtain clients. Almost ten years ago, the State Bar approved lawyers’ participation in an on-line national legal directory. RPC 241. This opinion only restricts false or misleading communications in relation to the directory listing. Within the last two years, the State Bar has approved participation in an on-line legal matching service. 2004 FEO 1. This service operates a website that matches prospective clients with participating lawyers. Clients post anonymous messages about their legal problems and lawyers respond with an “offer” message. The client also can access the lawyer’s website before making a selection and thereby reveal his or her identity. The State Bar approved this arrangement, which was a cross between a lawyer referral service and on-line legal directory, primarily because the client, rather than the service, selected the lawyer.

In another opinion, a law firm’s participation in a client’s on-line message board was deemed acceptable. 2000 FEO 3. To participate, the lawyer has to clarify the nature of the relationship with the person or company and include any limits on the information provided. If the lawyer does not intend to create a lawyer-client relationship, the message board and all subsequent communications must so state clearly and explicitly. The message board also should have a disclaimer about not including confidential information.

The State Bar does not view responding to message boards as an improper solicitation because there is no direct contact between the lawyer and the potential client, and the lawyer does not know that the person is in need of legal services in a particular matter. This situation is distinct from real-time electronic communications, which the Rules equate with in-person and live telephone contacts. See Rule 7.3.

Terms of Use and E-mail Disclaimers

Issues can arise when law firm websites contain links to send e-mails directly to lawyers within the firm. The issues generally center on conflicts or disqualification and the confidentiality of the information received. One of the first questions in this analysis is whether the law firm’s website actively solicits prospective clients to forward e-mails, which increases the expectation that confidential information will be maintained. Even when there is no active solicitation, a law firm could find itself disqualified unless it takes appropriate protective action.

Firms now use many different variations of disclaimers or “terms of use” on their websites to attempt to avoid conflicts of interest. Many law firm websites simply include disclaimer language through a “disclaimer,” “terms of use,” or “legal notices” link on the bottom of the firm’s homepage. Although not much authority exists for law firm websites, it may be difficult to make these passive sorts of disclaimers a part of any agreement, or demonstrating a prospective client’s assent to their terms. These disclaimers are often referred to as “browser wrap” agreements and generally have not been enforced by courts in other contexts.

Another type of arrangement requires the user to “click” acceptance to the terms or disclaimers before e-mailing information to the law firm or proceeding further. This type of arrangement is commonly referred to as a “click wrap” agreement. Enforcement of these disclaimers is generally more effective than the browser wrap variety.

The primary goal of including disclaimers with respect to e-mails is to prevent disqualification of the firm of an existing client or of a future client if no lawyer-client relationship is formed. There are several different issues that need to be addressed in such disclaimers: (1) whether the information sent should be limited in scope or type; (2) whether an attorney-client relationship is formed; and (3) how confidential information received by e-mail will be used or disclosed. Many commonly used disclaimers address some but not all these concerns.

The following disclaimer language is suggested to address all three of these issues and increase its potential enforceability to avoid disqualification:

By clicking ‘accept’ you understand that no attorney-client relationship will be formed by sending an e-mail and that you should not transmit confidential information. If you are contacting us about potential representation, please limit the initial message to your name, the names of the other persons or entities involved, and a brief description of the type of case or matter.

By clicking ‘accept’ you further agree that our review of any information you transmit to us will not preclude our firm from representing a party directly adverse to you and from using this information, even if the information is confidential.

A law firm must determine whether avoiding disqualification of current clients or preserving the ability to represent adverse parties outweighs the risk of alienating prospective clients by using such a starkly-worded disclaimer.

A Virtual Law Office to Deliver Unbundled Legal Services

A recent ethics opinion explores a cutting-edge use of the internet and websites to deliver legal services. 2005 FEO 10. This opinion deals with a law firm both marketing and providing legal services exclusively over the internet as a “virtual law firm.” The virtual lawyer neither meets with clients nor maintains an office to do so. The State Bar outlined the following potential pitfalls with this type of arrangement: (1) avoiding the unauthorized practice of law in other jurisdictions; (2) violating advertising rules in other jurisdictions; (3) being able to provide competent representation given the limited client contact; (4) creating a lawyer-client relationship unintentionally; and (5) ensuring client confidences are protected. Assuming the law firm addressed and avoided these pitfalls, the State Bar ruled that the law firm ethically could maintain this type of virtual practice.

A second and equally important aspect of the opinion was the law firm providing “unbundled” legal services to pro se litigants and others through its website. “Unbundled” services are those offered on an a la carte basis to clients. Such limited services include legal document drafting assistance or review, legal advice, case evaluation, litigation coaching and others. Clients may choose from a menu of services and the lawyer may provide limited services pursuant to Rule 1.2 so long as the lawyer makes an independent legal judgment that such services can be provided ethically and effectively. 2005 FEO 10. Although this opinion may have appeared to cover a merely hypothetical subject when it was published earlier this year, the front page story of the August 7, 2006 North Carolina Lawyer’s Weekly featured a lawyer in Wilmington who had opened a virtual law office.

The Wave of the Future: Application Service Providers

The use of Application Service Providers (ASPs) in legal practice as a means to reduce time and personnel for legal and law related tasks is the next technological wave. ASPs are companies that provide virtual services such as on-line client billing, electronic file storage, e-file backup services, virtual deal rooms or settlement negotiation, on-line collaboration tools, on-line document assembly and any other products or services that assist lawyers through the use of the Internet. Security and client confidentiality should be the foremost concern for lawyers choosing to utilize ASPs. Whatever the ASP chosen, it is the lawyer who is responsible for taking appropriate measures to ensure the ASP’s compliance with the applicable Rules of Professional Conduct.

Conclusion

It is extremely likely that the use of websites and the internet to attract potential clients and deliver legal services will continue to increase dramatically in the years to come. Whether lawyers are entering or expanding into e-marketing and e-services, it is important to keep abreast of both the ethical and technological developments in this area. Be careful, it’s a “brave new world” out there.