This page contains a Flash digital edition of a book.
Legal Marketing Special attention should also be paid to whether the

website, whether it be a firm website, Facebook page, LinkedIn profile, or blog, may inadvertently establish a reasonable expectation in the mind of the website visitor of the creation of either a prospective or an actual attorney-client relationship. If a website solicits specific information related to the visitor’s legal question or encourages the flow of information which may reasonably include confidential information, the visitor may be considered a prospective client, defined by the Rules as “a person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter . . .”. Rule 1.18(a).13 Once an individual is a prospective client, other Rules including those governing conflicts of interest (Rules 1.7, 1.8 and 1.9) and confidentiality (Rule 1.6) are triggered. When communicating with individuals, whether prospective clients or not, an attorney should always take reasonable steps to ascertain the individual’s identity and the nature of the problem to avoid conflicts with current clients. While it is unlikely that the communications

between a website visitor and an attorney would create an actual attorney-client relationship, it is certainly possible. The Restatement (Third) of the Law Governing Lawyers, Section 14, states that an attorney-client relationship arises when “(1) a person manifests to a lawyer the person’s intent that the lawyer provide legal services for the person; and either (a) the lawyer manifests to the person consent to do so; or (b) the lawyer fails to manifest lack of consent to do so, and the lawyer knows or reasonably should know that the person reasonably relied on the lawyer to provide the services. . .”. The Court of Appeals has said, “What constitutes an attorney client relationship is a rather elusive concept” and is determined on a case by case basis. The Court has stated that the practice of law includes “utilizing legal education, training, and experience to apply the special analysis of the profession to a client’s problem.”14 Attorneys should include appropriate disclaimers and warnings on their advertisements to avoid a

mundane activities such as leaving a voicemail message at the client’s home, submitting a bill in support of a petition for attorney’s fees, submitting a client list to a bank to support the lawyer’s loan application and, important for the discussion herein, telling a story to friends about a recent trial without revealing the identity of the client or any other fact not contained in the public record).

13 See ABA Form. Op. 10-457 (2010) (opining that a website that specifically encourages a visitor to submit a personal inquiry about a proposed representation may begin a “discussion” about a proposed representation triggering Rule 1.18 as opposed to a website that provides contact information for the law firm or lawyers only).

14 Attorney Grievance Commission v. Shaw, 356 Md. 636, 649, 732 A.2d 876, 882 (1999) (internal citations or quotations omitted). In Shaw the Court also referenced MD. Code Ann., Bus Occ. & Prof. Art., § 10-101(h) which defines “practice law” to include: giving legal advice, representing another person before a unit of the State government or of a political subdivision, advising in the administration of probate, preparing an instrument that affects title to real estate, preparing any form or document filed in a court or affects a case that is or may be filed in a court, giving advice about a case that is or may be filed in a court or “performing any other service that the Court of Appeals defines as practicing law.”

20 Trial Reporter / Winter 2014

misunderstanding by the website visitor that “(1) a client- lawyer relationship has been created, (2) the visitor’s information will be kept confidential, (3) legal advice has been given, or (4) the lawyer will be prevented from representing an adverse party.”15 Additionally, lawyers should be cautious of the fact

that their online advertisements may be accessed in any state or country and should clearly indicate each jurisdiction where the attorney is admitted to practice law to avoid running afoul of the prohibition against the unauthorized practice of law. See Rule 5.5(a) (“A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so.”) Almost all states have a variation of Rule 5.5(b)(2) which prohibits a lawyer from holding herself out to the public or otherwise representing that she is admitted to practice in the jurisdiction. An attorney whose purpose in advertising is to obtain clients in multiple jurisdictions should research other jurisdictions’ definition of the practice of law16 and restrictions on cross border advertising practices. In Attorney Grievance Commission v. Harris-Smith, the Respondent attorney was found to have violated the prohibition against unauthorized practice and making misleading statements because her business cards listed a Maryland address and because she did not advise prospective clients that she was not admitted to practice in Maryland. Ms. Harris-Smith was suspended from the practice of law for 30 days. 356 Md. 72, 737 A.2d 567 (1999).

Rule 7.2 outlines the basic requirements for all

advertising and strict compliance is expected. The Rule provides, inter alia:

(b) a lawyer must maintain a copy of each advertisement for three years after its last dissemination along with a record of when and where it was used17; (d) each advertisement must

15 See ABA Form. Op. 10-457 (2010) (internal citations omitted). A disclaimer or warning is not however a guarantee that a court will not later find that an prospective client or attorney-client relationship has been created if the attorney engages in communications with an individual that are inconsistent with the terms of the disclaimer. See Vermont Advisory Ethics Opinion 2000- 04 (2004). Similarly, Courts have refused to uphold disclaimers that appeared on separate pages and did not require a reader’s affirmative consent to their terms. Attorneys should consider using “click through” or “clickwrap” disclaimers that a visitor must review prior to submitting any information through a website.

16 In determining whether an attorney has engaged in the practice of law, the Court of Appeals focuses the inquiry on whether the activity in question requires legal knowledge and skill in order to apply legal principles and precedent and, where trial work in not involved but the preparation of legal documents, their interpretations, the giving of legal advice, or the application of legal principles to problems of any complexity is involved, the Court has found that the attorney has engaged in the practice of law. Attorney Grievance Commission v. Hallmon, 343 Md. 390, 681 A.2d 510 (1996).

17 Bar Counsel is certainly cognizant of the potential burden placed on lawyers who routinely update their website to maintain detailed records of each modification. The Rules and comments are absolutely clear that the burden is on the attorney and if and when an inquiry is made by Bar Counsel, nothing short of exacting compliance is expected. See Comment [10] to Rule 7.2 (“Every lawyer who participates in communications concerning the lawyer’s services is responsible for assuring that the specified Rules are complied with and must be prepared to substantiate compliance with those Rules. That may require retaining records for more than the three years specified in paragraph (b) of this Rule.”)

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