Business Law Legal Topics Practice of Law

Don’t Check Your Ethics at the Virtual Door

Law firm and solo attorney websites can be effective ways to reach potential clients, but they also carry risks of ethical violations. To avoid these risks, California attorneys should consider both national and state ethics rules (i.e., Cal Rules of Prof Cond 1-400 and Bus & P C §§6157-6159.2) when designing their websites and corresponding with clients or prospective clients online.

A recent American Bar Association (ABA) ethics opinion (.pdf) reviews some of the ethical obligations that attorneys should address in considering the content and features of their websites, including that they

must not include misleading information on websites, must be mindful of the expectations created by the website, and must carefully manage inquiries invited through the website.

The ABA Journal lists some of the “potential website pitfalls” raised by this ethics opinion, including the need for client’s informed consent before identifying them online and the need to keep website information current. It also warns attorneys to beware of conducting fact-specific discussions over the Internet that might create confusion about whether the other party is a client.

To avoid these pitfalls, consider the following when creating and maintaining a professional website:

  • Your advertisements cannot be false or misleading, and should be factually substantiated. Cal Rules of Prof Cond 1-400(C).
  • You must keep a copy of all advertisements for two years. Cal Rules of Prof Cond 1-400(F).
  • Attorney websites are generally considered communications and not solicitations within the meaning of Cal Rules of Prof Cond 1-400(A). California State Bar Formal Opinion No. 2001-155.
  • To prevent jurisdictional problems, you should use disclaimers stating that you are advertising only in California and do not seek to represent someone based solely on a visit to the site. Also state the areas of law you practice, the location of your office, and the jurisdictions in which you are licensed.
  • If your website has an email address or communication form, you may effectively disclaim that you owe a duty of confidentiality to visitors only if the disclaimer states in plain language that any submissions are not confidential. California State Bar Formal Opinion No. 2005-168.

The ABA ethics opinion also addresses disclaimers and advises their use to help clarify that no attorney-client relationship is created by website-related email communications. It notes, however, that “a limitation, condition, waiver or disclaimer may be undercut if the lawyer acts or communicates contrary to its warning,” and stresses that an effective disclaimer must also be “reasonably understandable, properly placed and not misleading” to a reasonable person.

  On advertising on the Internet generally, and a specific discussion of attorney Internet advertising, check out Internet Law and Practice in California, chap 17 (Cal CEB 2004).

© The Regents of the University of California, 2010. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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