Considerations When Engaging in Internet Marketing

When engaging in Internet marketing, think about when a person who lands on your website is considered a client. Is it just because they land on your website? When they land on your Web page or submit a request for information? Is he or she a client when you engage in communications with them? Is it when you meet with the person? Or, is the most important consideration when she believes you represent her?

In Atkinson v. Haug, 424 Pa Super. 406 (1993), the Pennsylvania Superior Court stated that “absent an express contract, an implied attorney-client relationship will be found if: (1) the purported client sought advice or assistance from the attorney; (2) the advice sought was within the attorney's professional competence; (3) the attorney expressly or impliedly agreed to render such assistance; and (4) it is reasonable for the putative client to believe the attorney was representing him.”

Many law firms will receive hundreds of Internet inquiries regarding potential cases or seeking legal advice. Careful thought should be given as to what type of disclaimer is placed on the website regarding the website's purpose, when an attorney-client relationship is formed and how representation is undertaken. Applying the legal standard outlined in Atkinson , a lawyer should also be very careful as to what type of informal discussion he or she engages in, by means of e-mail or in response to an online inquiry. Moreover, should you choose not to pursue a case, an e-mail or letter declining representation should automatically be sent in follow-up to a website inquiry.

Social Media Pages

The use of social media may be subject to state rules of professional conduct regarding attorney advertising.

Many lawyers have individual and law firm social media pages such as Facebook and LinkedIn. Ethical issues can arise as to what type of information is disseminated on those pages. For instance, LinkedIn has a field for “specialties” where you can designate yourself as an expert in a particular area.

State ethics rules regarding attorney advertising may come into play with these pages. For example, Pennsylvania Rules of Professional Conduct Rule 7.4 states that a lawyer shall not state that the lawyer is a specialist except as follows: “(1) a lawyer admitted to engage in patent practice before the U.S. Patent and Trademark Office may use the designation 'patent attorney' or a substantially similar designation; (2) a lawyer engaged in admiralty practice may use the designation 'admiralty,' 'proctor in admiralty' or a substantially similar designation; (3) a lawyer who has been certified by an organization approved by the Supreme Court of Pennsylvania as a certifying organization ' may advertise the certification during such time as the certification of the lawyer and the approval of the organization are both in effect; and (4) a lawyer may communicate that the lawyer is certified in a field of practice only when that communication is not false or misleading and that certification is granted by the Supreme Court of Pennsylvania.”

Consequently, an attorney with a LinkedIn profile should undoubtedly leave the field blank that asks you to designate your proficiency level in order to avoid an ethical violation.

In addition, LinkedIn and Facebook both have areas where clients can write a recommendation or comment on a lawyer's skill, etc. These types of client assessments can also give rise to a violation. For example, Pennsylvania's Rule 7.1, states that “a lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services.” The comments to Rule 7.1 elaborate that an “unsubstantiated comparison of the lawyer's services or fees with the services or fees of other lawyers may be misleading if presented with such specificity as would lead a reasonable person to conclude that comparison can be substantiated.”

Therefore, attorneys should be sure to monitor the recommendations and statements that clients and/or other lawyers place upon their Facebook or LinkedIn page to ensure that misleading statements are not made. For instance, if a client states “John Doe is the best lawyer in Philadelphia,” it may be considered misleading and in violation of Rule 7.1. Careful, consistent monitoring of your social media sites and disclaimers are absolutely necessary to avoid an ethical violation.

Another consideration is that most clients now have Facebook and/or LinkedIn accounts. While it is essential to advise clients that anything they post on those accounts may be discoverable during the course of their case, it may be an ethical violation if you advise them to remove content that is already posted on their page. It can be considered spoliation of evidence. For instance, a lawyer in Virginia was recently required to pay a hefty fine and was suspended for five years for advising a client to remove potentially damaging information from the client's Facebook page. Be careful how you advise clients regarding their use of social media.

Copyright and Privacy'Considerations

Attorneys should also be cognizant of the use of copyright, trade or brand names on their website. Using an image or brand logo found via a Google search may be in violation of copyright and/or trademark laws. Attorneys should also be aware of privacy issues. If you are unsure as to whether certain conduct may be considered an ethical violation, check the applicable state Bar Association rules and ethical advisory opinions on these topics.

I suspect that the law and ethical concerns regarding the use of Internet marketing and social media sites will continue to evolve and be refined in coming years. In the meantime, familiarize yourself with the rules of professional conduct in your state regarding attorney advertising and communications and adjust your online behavior accordingly.

Tracy A. Finken, a Partner at Anapol Schwartz in Philadelphia, PA, concentrates her practice on pharmaceutical liability, products liability, class actions and other complex civil litigation. She can be contacted at [email protected] or 215-735-0773.

In this day and age, most law firms have a website and use the Internet as a large part of their overall marketing scheme. However, the ethical considerations are plentiful and not always clear-cut. Even if your firm utilizes a Web developer or marketing firm, it is ultimately the lawyer's responsibility to ensure that his or her Internet marketing is compliant with the applicable rules of professional conduct and state law.

A lawyer cannot point to the fact that he or she did not create the website or the material on the website as a defense to an ethical violation. Failure to adhere to the rules might result in the imposition of sanctions on the attorney or firm.

What Makes a 'Client?'

When engaging in Internet marketing, think about when a person who lands on your website is considered a client. Is it just because they land on your website? When they land on your Web page or submit a request for information? Is he or she a client when you engage in communications with them? Is it when you meet with the person? Or, is the most important consideration when she believes you represent her?

In Atkinson v. Haug, 424 Pa Super. 406 (1993), the Pennsylvania Superior Court stated that “absent an express contract, an implied attorney-client relationship will be found if: (1) the purported client sought advice or assistance from the attorney; (2) the advice sought was within the attorney's professional competence; (3) the attorney expressly or impliedly agreed to render such assistance; and (4) it is reasonable for the putative client to believe the attorney was representing him.”

Many law firms will receive hundreds of Internet inquiries regarding potential cases or seeking legal advice. Careful thought should be given as to what type of disclaimer is placed on the website regarding the website's purpose, when an attorney-client relationship is formed and how representation is undertaken. Applying the legal standard outlined in Atkinson , a lawyer should also be very careful as to what type of informal discussion he or she engages in, by means of e-mail or in response to an online inquiry. Moreover, should you choose not to pursue a case, an e-mail or letter declining representation should automatically be sent in follow-up to a website inquiry.

Social Media Pages

The use of social media may be subject to state rules of professional conduct regarding attorney advertising.

Many lawyers have individual and law firm social media pages such as Facebook and LinkedIn. Ethical issues can arise as to what type of information is disseminated on those pages. For instance, LinkedIn has a field for “specialties” where you can designate yourself as an expert in a particular area.

State ethics rules regarding attorney advertising may come into play with these pages. For example, Pennsylvania Rules of Professional Conduct Rule 7.4 states that a lawyer shall not state that the lawyer is a specialist except as follows: “(1) a lawyer admitted to engage in patent practice before the U.S. Patent and Trademark Office may use the designation 'patent attorney' or a substantially similar designation; (2) a lawyer engaged in admiralty practice may use the designation 'admiralty,' 'proctor in admiralty' or a substantially similar designation; (3) a lawyer who has been certified by an organization approved by the Supreme Court of Pennsylvania as a certifying organization ' may advertise the certification during such time as the certification of the lawyer and the approval of the organization are both in effect; and (4) a lawyer may communicate that the lawyer is certified in a field of practice only when that communication is not false or misleading and that certification is granted by the Supreme Court of Pennsylvania.”

Consequently, an attorney with a LinkedIn profile should undoubtedly leave the field blank that asks you to designate your proficiency level in order to avoid an ethical violation.

In addition, LinkedIn and Facebook both have areas where clients can write a recommendation or comment on a lawyer's skill, etc. These types of client assessments can also give rise to a violation. For example, Pennsylvania's Rule 7.1, states that “a lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services.” The comments to Rule 7.1 elaborate that an “unsubstantiated comparison of the lawyer's services or fees with the services or fees of other lawyers may be misleading if presented with such specificity as would lead a reasonable person to conclude that comparison can be substantiated.”

Therefore, attorneys should be sure to monitor the recommendations and statements that clients and/or other lawyers place upon their Facebook or LinkedIn page to ensure that misleading statements are not made. For instance, if a client states “John Doe is the best lawyer in Philadelphia,” it may be considered misleading and in violation of Rule 7.1. Careful, consistent monitoring of your social media sites and disclaimers are absolutely necessary to avoid an ethical violation.

Another consideration is that most clients now have Facebook and/or LinkedIn accounts. While it is essential to advise clients that anything they post on those accounts may be discoverable during the course of their case, it may be an ethical violation if you advise them to remove content that is already posted on their page. It can be considered spoliation of evidence. For instance, a lawyer in Virginia was recently required to pay a hefty fine and was suspended for five years for advising a client to remove potentially damaging information from the client's Facebook page. Be careful how you advise clients regarding their use of social media.

Copyright and Privacy'Considerations

Attorneys should also be cognizant of the use of copyright, trade or brand names on their website. Using an image or brand logo found via a Google search may be in violation of copyright and/or trademark laws. Attorneys should also be aware of privacy issues. If you are unsure as to whether certain conduct may be considered an ethical violation, check the applicable state Bar Association rules and ethical advisory opinions on these topics.

I suspect that the law and ethical concerns regarding the use of Internet marketing and social media sites will continue to evolve and be refined in coming years. In the meantime, familiarize yourself with the rules of professional conduct in your state regarding attorney advertising and communications and adjust your online behavior accordingly.

Tracy A. Finken, a Partner at Anapol Schwartz in Philadelphia, PA, concentrates her practice on pharmaceutical liability, products liability, class actions and other complex civil litigation. She can be contacted at [email protected] or 215-735-0773.