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Legal Marketing


The Ethics of Internet


Advertising: Content,


Maintenance and


Disclaimers Lydia E. Lawless


A


s law firm websites and internet advertisement have become standard tools for most Maryland firms, it is important for practitioners to be


cognizant of the potential ethical issues that may arise. This article reviews the Maryland Lawyers’ Rules of Professional Conduct that govern the information contained on a website or other forms of advertisement1 as well as those Rules that may be implicated by use of internet advertisement—namely rules relating to confidentiality, conflict of interest, prospective clients and the creation of an attorney-client relationship, the unauthorized practice of law and those general rules governing maintaining the integrity of the profession. Almost every conceivable use of the internet by an


attorney or a law firm may qualify as a method of advertising and trigger Rules 7.1 through 7.5. The Court of Appeals has had no opportunity to provide guidance to the Bar for the application of the Rules to internet advertising. The Rules themselves were adopted prior to the prevalence of the internet and, where they refer to methods of advertising, they often seem outdated, referring as they do to telephone directories, newspaper advertisements and radio spots. In 1997, a short 16 years


1 Comment [1] to Rule 7.2 defines “advertising” as involving “an active quest for clients . . .”. Methods of advertising would include, but are certainly not limited to, law firm websites, attorney and law firm Facebook pages and Twitter feeds, professional profiles on websites such as LinkedIn, Lawyers.com and avvo.com, YouTube, daily deal websites such as Groupon, blogs, and review sites such as Yelp.


ago, the Maryland State Bar Association Committee on Ethics received a request for an ethics opinion. The question posed was “whether an attorney may use an internet web page to advertise, and if so, what Rules of Professional Conduct apply.” The Committee opined that the attorney may use a website which would necessarily qualify as a form of advertising and the Rules would be applicable.2 The Rules however are easily read in the context of the internet and current advertising methods. Other jurisdictions with similar rules provide additional guidance. Rule 7.1 prohibits an attorney from making any


“false or misleading communication about the lawyer or the lawyer’s services.” Advertising content is false or misleading if it: “(a) contains a material misrepresenta- tion of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading;” or “(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 [illegal or unethical] means. . .” A domain name may also run


afoul of Rule 7.1 and 7.5.3 2 See MSBA Committee on Ethics, Ethics Docket 97-26. 3 Rule 7.5 regarding Firm Names and Letterheads, provides, in part: “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.” The Maryland State Bar Association Committee on Ethics opined that a domain name that includes the use of descriptive words or phrases, for example “www.marylandadoptions.us” would be problematic as the use of the word “Maryland” implies a connection with the government. The Committee did not address the propriety of the use of “.us” in the attorney’s domain name. Use of “.org” or similar suffix in a domain name may be misleading as it implies that the website is not a commercial site and not an advertisement. See Comment [2] to Rule 7.5 (“A lawyer in private practice may not practice under a name which implies any connection with the government or any agency of the federal government, any state or any political subdivision, or with a public or charitable legal services organization . . . The use of any of the following ordinarily would violate this Rule:


Trial Reporter / Winter 2014 17


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