The Attorney's Office Tools
The Ethics of Internet Advertising
Glenn Grossman L
awyers who wish to market their services effectively (i.e., almost everyone engaged in the private practice of law) must be conversant with Internet advertising.
It is certainly not the wave of the future because it is here right now and its use as a marketing tool is a conventional practice. No discussion of the ethics of Internet advertising can be attempted without reference to the Rules of Professional Conduct.1
Tere is no doubt that the Rules apply to advertising
on the Internet, whether the communication is on a law firm or lawyer’s website, on Craigslist, on a social networking site, on a “directory,” or on a legal matching site. Not only do the Rules relating to “Information About Legal Services,” Rules 7.1 through 7.52
1 Te Rules to which this article refers are the Maryland Lawyers Rules of Professional Conduct. 2 Rule 7.1. Communications Concerning a Lawyer's Services. A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it: a. Contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading;
b. Is likely to create an unjustified expectation about results the lawyer can achieve, or states or implies that the lawyer can achieve results by means that violate the Maryland Lawyers' Rules of Professional Conduct or other law; or
c. Compares the lawyer's services with other lawyers' services, unless the comparison can be factually substantiated.
Rule 7.2. Advertising. a. Subject to the requirements of Rules 7.1 and 7.3(b), a lawyer may advertise services through public media, such as a telephone directory, legal directory, newspaper or other periodical, outdoor, radio or television advertising, or through communications not involving in person contact.
b. A copy or recording of an advertisement or such other communication shall be kept for at least three years after its last dissemination along with a record of when and where it was used.
c. A lawyer shall not give anything of value to a person for recommending the lawyer's services, except that a lawyer may: 1. pay the reasonable cost of advertising or written communication permitted by this Rule. 2. pay the usual charges of a legal service plan or a not-for-profit lawyer referral service. 3. pay for a law practice purchased in accordance with Rule 1.17; and. 4. refer clients to a non-lawyer professional pursuant to an agreement not otherwise prohibited under these Rules that provides for the other person to refer clients or customers to the lawyer, if: i. the reciprocal agreement is not exclusive, and ii. the client is informed of the existence and nature of the agreement.
d. Any communication made pursuant to this Rule shall include the name of at least one lawyer responsible for its content.
e. An advertisement or communication indicating that no fee will be charged in the absence of a recovery shall also disclose whether the client will be liable for any expenses.
Rule 7.3. Direct Contact with Prospective Clients. a. A lawyer shall not by in-person, live telephone or real-time electronic contact solicit professional employment from a prospective client when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain, unless the person contacted: 1. is a lawyer; or 2. has a family, close personal, or prior professional relationship with the lawyer.
b. A lawyer shall not solicit professional employment from a prospective client by written, recorded or electronic communication or by in-person, telephone, or real-time electronic contract even when not otherwise prohibited by paragraph (a), if: 1. the lawyer knows or reasonably should know that the physical, emotional or mental state of the prospective client is such that the prospective client could not exercise reasonable judgment in employing a lawyer.
2. the prospective client has made known to the lawyer a desire not to be solicited by the lawyer; or
3. the solicitation involves coercion, duress, or harassment. notably Rules 1.6,3 Confidentiality. 1.7, Conflicts4 and Rule
c. Every written, recorded, or electronic communication from a lawyer soliciting professional employment from a prospective client known to be in need of legal services in a particular matter shall include the words "Advertising Material" on the outside envelope, if any, and at the beginning and ending of any recorded or electronic communication, unless the recipient of the communication is a person specified in paragraphs (a)(1) or (a)(2).
d. Notwithstanding the prohibitions in paragraph (a), a lawyer may participate with a prepaid or group legal service plan operated by an organization not owned or directed by the lawyer that uses in-person or telephone contact to solicit memberships or subscriptions for the plan from persons who are not known to need legal services in a particular matter covered by the plan.
apply, but a number of others are implicated,
Rule 7.4. Communication of Fields of Practice. a. A lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law, subject to the requirements of Rule 7.1. A lawyer shall not hold himself or herself out publicly as a specialist.
b. A lawyer admitted to engage in patent practice before the United States Patent and Trademark Office may use the designation "Patent Attorney" or a substantially similar designation.
Rule 7.5. Firm Names and Letterheads. a. A lawyer shall not use a firm name, letterhead or other professional designation that violates Rule 7.1. A trade name may be used by a lawyer in private practice if it does not imply a connection with a government agency or with a public or charitable legal services organization and is not otherwise in violation of Rule 7.1.
b. A law firm with offices in more than one jurisdiction may use the same name in each jurisdiction, but identification of the lawyers in an office of the firm shall indicate the jurisdictional limitations on those not licensed to practice in the jurisdiction where the office is located.
c. Te name of a lawyer holding a public office shall not be used in the name of a law firm, or in communications on its behalf, during any substantial period in which the lawyer is not actively and regularly practicing with the firm.
d. Lawyers may state or imply that they practice in a partnership or other organization only when that is the fact.
3 Rule 1.6. Confidentiality of Information. a. A lawyer shall not reveal information relating to representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by paragraph (b).
b. A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: 1. to prevent reasonably certain death or substantial bodily harm; 2. to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services;
3. to prevent, mitigate, or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services.
4. to secure legal advice about the lawyer's compliance with these Rules, a court order or other law;
5. to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge, civil claim, or disciplinary complaint against the lawyer based upon conduct in which the client was involved or to respond to allegations in any proceeding concerning the lawyer's representation of the client; or
6. to comply with these Rules, a court order or other law.
4 Rule 1.7. Conflict of Interest: General Rule. a. Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a conflict of interest. A conflict of interest exists if:. 1. the representation of one client will be directly adverse to another client; or 2. there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.
b. Notwithstanding the existence of a conflict of interest under paragraph (a), a lawyer may Trial Reporter / Spring 2010 15
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