Attorney Advertising in the Digital Age
One of the foremost benefits of the Internet is that it allows businesses and individuals to advertise their services and products through new channels to a larger and geographically diverse customer base. Revenue from online advertising has risen every year since charting and tabulating began almost two decades ago. To illustrate: In the first half of 2013 alone, online advertising revenue exceeded $20 billion.
If anything, these gaudy revenue figures illustrate the robust nature of the online market for those who wish to seek out prospective customers or clients. As such, it's unsurprising that lawyers across the country have begun to utilize the Internet to promote their practices in a variety of different ways. However, unlike the myriad businesses that are either self-regulated or completely unregulated by any sort of authoritative body, lawyers are bound by courts and bar associations (both at the national and state level) to adhere to principles governing their activities. Additionally, particular types of attorney online advertising can raise the ire of other practitioners and companies if the advertising is ultimately successful. See Berken v. Jude, No. 12-cv-0255-RPM, 2013 WL 6152347 (D. Colo. Nov. 23, 2013) (bankruptcy attorney could not claim competitor committed false advertising under the Lanham Act based on advertisements claiming bankruptcy could be accomplished by small flat fee because the ads did not cause the attorney injury).
As a result, this tension between a lawyer's right to engage in commercial speech online and the duty of courts and bar associations to uphold certain ethical principles within the profession has become increasingly prominent as society as a whole further transitions into the ubiquity of the digital age.
This article will discuss several pressing issues that exemplify the tension surrounding attorney online advertising, including: what duties lawyers owe to their clients when blogging about their practice; what types of online solicitation by lawyers is permissible; and what recourse, if any, those who object to attorney advertising may possess.
Rules Governing Blogs
The blog could be the most useful tool in one's online arsenal to advertise an area of expertise in the law and to solicit prospective clients. Unlike many other legal documents, it can be written colloquially, thereby making it more accessible to readers unfamiliar with the often abstruse nature of the prose within legal documents. Moreover, the informality associated with blogging is less intrusive than a direct advertisement placed alongside an individual's email or search engine results. Unsurprisingly then, enterprising lawyers have taken to using them as a means of soliciting future business. This practice has already run into obstacles, as courts and bar associations have confronted whether this practice comports with the notions of ethics and propriety that purportedly undergird the practice of law.
For example, in Hunter v. Virginia State Bar, 744 S.E.2d 611 (Va. 2013), cert denied, 133 S. Ct. 2781 (2013), a lawyer who authored a trademarked blog that covered local criminal defense issues received sanctions for doing so from the Virginia State Bar (VSB). Specifically, the VSB found that the author violated state bar rules because (1) his blog posts discussing criminal cases were "inherently misleading" as they lacked disclaimers; and (2) the posts revealed potentially embarrassing information about former clients without their consent. The attorney appealed to the local circuit court. It dismissed the VBA's sanction for violating the rule against "disseminating client confidences" on grounds that the sanction which prevented the lawyer from utilizing the personal information of former clients would violate the First Amendment. It upheld the sanction against the lawyer for the posts without a disclaimer. The lawyer then appealed to the state supreme court.
As a threshold matter, the Supreme Court of Virginia held that the blog posts were commercial speech because the motivation for the posts were economic and referenced a specific product (his lawyering skills) and because they predominately described cases that yielded a favorable result for the client. Under the commercial speech regulation standard as applied to attorney advertising, the court then held that while the VSB was wrong to characterize the posts as inherently misleading, they did have the authority to force the author to post a noticeable disclaimer along side the posts, since they could potentially be misleading. See also Peel v. Atty. Registration & Disciplinary Comm'n, 496 U.S. 91 (1990) ("[I]t is the bar's role to assure that [the public] is sufficiently informed as to enable it to place [potentially misleading] advertising in its proper perspective."); Hayes v. Grievance Comm. of Eighth Judicial Dist., 672 F.3d 158 (2d Cir. 2012) (holding that the phrase "prominently made" in describing the nature of an attorney disclaimer was unconstitutionally void for vagueness as applied to plaintiff in instant case). The court held that the lawyer had the right to post information about former clients on the blog (provided said information was not privileged), since the information was already public, and "a lawyer is no more prohibited than any other citizen from reporting what transpired in the courtroom."
Attorney-authored blogs have also raised questions of retention of records. Specifically, at least one state bar association has pondered whether certain types of blogs trigger retention and preservation rules that apply to lawyers' online solicitations. In New York State Bar Association Comm. on Professional Ethics, Op. 967 (N.Y. 2013), the ethics committee of the state bar (Committee) responded to a question from a lawyer about whether a blog that discussed work-life balance would be considered an advertisement under the state rules of professional conduct, and therefore subject to document retention provisions. The Committee concluded that since the blog's "primary purpose" would not be tailored towards obtaining new clients, it was not subject to the advertising requirements.
At present, at least two institutions with sanctioning power over lawyers have ruled in favor of lawyers utilizing blogs to discuss their practice or promote previous success. Nonetheless, as the field is in flux and jurisdiction-specific, lawyers should monitor the evolving rules closely.
What Methods Are Permissible?
Similar to how other companies approach online advertising, lawyers have devised various methods to utilize the Internet in an optimum way as they search for potential clients. For example, the American Bar Association (ABA) recently confronted a situation in which lawyers desired to market their services through "group-coupon" or "deal-of-the-day" programs. See ABA Standing Comm. on Ethics & Prof'l Responsibility, Formal Op. 465 (2013). In disagreeing with certain state bar ethics opinions, the ABA found that these prepaid deals were not "inherently unethical," though they presented "unique challenges." The ABA distinguished between "coupon deals," which in return for an up front fee, entitles the buyer to discounted legal services thereafter, and "prepaid deals" in which the services are discounted but the buyer pays the entire fee up front.
The "coupon deal" is less problematic since it establishes a discount applicable to future legal fees, and therefore does not constitute a "legal fee" that requires ascertaining the identity of the payor and depositing the fees into a trust account. On the other hand, the "prepaid deal" is defined as a legal fee under ABA rules because the feel is collected ex ante; therefore, the payor must be identified and the fees placed into a trust account. See also North Carolina State Bar Ethics Comm., Formal Op. 2013-10 (2013) (service that affords participating lawyers an exclusive right to prospective clients arising from a particular geographic area does not violate state bar rules provided there are disclosures indicating that it is advertising, it contains an exclusive territorial arrangement and no fees are shared between participating lawyers).
Lawyers utilizing the Internet to acquire direct, individualized referrals has yet to receive the imprimatur of permissibility from at least one state bar association. In Michigan State Bar Comm. on Prof' & Judicial Ethics, Informal Op. RI-365 (2013), the presiding committee concluded that lawyers could not pay for client leads from a site that catalogs lawyers by their specialties and generates "blind referrals" when a client selects on their particular practice area.