Ethics? Lawyers' Online Presence Presentation at LMA Legal Marketing Association NE Regional Conference

LMA Legal Marketing Association Northeastern Regional Chapter presentation by Jennifer Schaller Managing Director of the National Law Review and Elissa Torto Assistant Bar Counsel of the Massachusetts Office of Bar Counsel on legal ethics in attorney advertising. Law firm websites, blogs and social media may be treated as
advertisements under the ABA Model Rules. Jennifer Schaller and Elissa Torto Assistant Bar Counsel of the Massachusetts Office of Bar Counsel discuss the ABA Model Rules concerning attorney advertising focusing on what legal marketers should know.

1. Ethics? Lawyers’ Online Presence: Websites Social Media Online Reviews

2. Presenters: Jennifer Schaller, Esq. Managing Director, The National Law Review Elissa Torto, Assistant Bar Counsel, Massachusetts Office of Bar Counsel

3. What We’ll Be Talking About: Who is Responsible The Rules Images & Website Disclaimers Certifications & Specialties, Awards Representative Matters & Testimonials Online Reviews & Prof. Networking Social Media

4. General Baseline Rule: Law firm websites, blogs & social media are all regulated communication and may be treated as advertisements under the ABA Model Rules.

5. Websites: Images Count

6. Would You Like to Make this Press Statement? "The look and feel of our Web site will be compatible with the new marketing materials, which will not incorporate the use of models as a design element. When our existing Web site was redesigned in 2007, firm management decided to use models rather than our own lawyers so as not to divert our lawyers’ time from serving our clients." Am Law CMO Media Statement.

7. Beautiful People & Diverse Teams

8. ABA Model Rules

9. Websites: Attorney Bios & Practice Group Pages

10. Attorney Bios & Practice Group Pages

11. Who You Know & Influential Connections

12. Connections with Political or Regulatory Officials NOT OK : Lawyers “worked closely with the City’s various boards and municipal officials” not only violated Rule 7.1 by creating an unjustified expectation, it also violated Rule 8.4(5) “because it implies an ability to influence these government agencies and officials.” NOT OK : Pairing a factual statement about a firm’s experience as town attorneys with a statement that such experience gave the firm’s attorneys a “unique perspective.” OK : “to recite a lawyer’s professional experience by indicating what boards the lawyer has served on.” Or prior judicial clerkship or government employment .

13. Connections with Judges

14. Websites: Prior Outcomes, Expectations, & Disclaimers

15. “We Listen. We Care. We Win.” Trumpeting only successes in a marketing communication may be deemed a misleading or non-verifiable statement. ABA Model Rule 7.1, Comment 2: A truthful statement is misleading if a substantial likelihood exists that it will lead a reasonable person to formulate a specific conclusion about the lawyer or the lawyer’s services for which there is no reasonable factual foundation.

16. Representative Matters & Testimonials “Statements on this website of prior results do not guarantee a similar outcome.” May be permissible Likely require informed consent / permission, sometimes in writing Should include a disclaimer

17. Representative Matters & Testimonials ABA Model Rules ABA Model Rule 7.1, Comment 3 A communication that truthfully reports a lawyer’s achievements on behalf of clients or former clients may be misleading if presented so as to lead a reasonable person to form an unjustified expectation that the same results could be obtained for other clients in similar matters …. … an unsubstantiated claim about a lawyer’s or law firm’s services or fees, or an unsubstantiated comparison of the lawyer’s or law firm’s services or fees with those of other lawyers or law firms, may be misleading … The inclusion of an appropriate disclaimer or qualifying language may preclude a finding that a statement is likely to create unjustified expectations or otherwise mislead the public.

18. ABA Model Rules

19. Best Practices: Representative Matters & Testimonials

20. Websites: Recognition, Awards & Specialization

21. Awards & Recognitions

22. Specialization & Certifications Very State- Specific (no Model Rule)

23. Websites: Allowing Potential Clients to Contact the Firm

24. ABA Model Rules

25. Best Practices: Websites

26. What Do You Think? Some attorneys at your firm have become increasingly frustrated by not being able to fully promote their achievements on your firm’s website and like the more robust descriptions and the aggressive imagery they’ve seen on some other firm’s sites. Most Likely OK or Not OK….

27. The firm’s real estate department is “one of the best” in the area. Most Likely OK or Not OK? What Do You Think?

28. A close-up image of a tiger’s eyes or of a wizard? Most Likely OK or Not OK? What Do You Think?

29. The law firm is a “full service firm.” Most Likely OK or Not OK? What Do You Think?

30. The lawyer’s membership in the Florida Bar (if the lawyer is a member of the Florida Bar)? Most Likely OK or Not OK? What Do You Think?

31. The law firm has “30 years of experience” (which represents the combined legal experience of the firm’s lawyers)? Most Likely OK or Not OK? What Do You Think?

32. Review Sites & Professional Networking

33. LinkedIn & Similar Sites Count as Advertising! Statements must be accurate, not misleading Endorsements

34. False Statements on LinkedIn In the Matter of Dannitte Mays Dickey (SC)

35. Lawyer Review Sites

36. How NOT to Handle Online Reviews Cannot incentivize positive reviews Cannot lie in response Cannot disclose confidential client information (even if the client has outed him or herself) “I feel badly for [client] but his own actions of beating up a female coworker are what caused the consequences he is now so upset about.” Client had been “locked up in the looney bin for months due to severe psychological conditions.” Client should “show some fortitude and man up, boy.”

37. Best Practices: Reviews & Professional Networking

38. Social Media

39. “…Proper attire for trial.” Attorney Facebook Post

40. Twitter Commentary Am Law Partner’s tweet about snarky SCOTUSblog post about a case “naughty, naughty boy” “…There is nothing to smile about, douchebag.”   Kansas state gov’t lawyer live-tweeting during attorney general’s bar disciplinary hearing “Go f@ck yourself and die.” “I predict that he will be disbarred for a period not less than 7 years.”

41. Best Practices: Firm & Firm Employee Social Media

42. Who is responsible

43. The Trifecta Improperly used a "seal" of Attorney Certification on website; Lawyer did not realize the seal was on his website for approximately two years; Attorneys are responsible for monitoring the content of all communications with the public --including their websites...

44. In Closing

45. Resources ABA MODEL RULES OF PROFESSIONAL CONDUCT https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/model_rules_of_professional_conduct_table_of_contents.html State-specific Rules of Professional Conduct for each state where your attorneys are practicing Lawyer Marketing: An Ethics Guide Hypotheticals and Analyses McGuireWoods LLP T. Spahn (2/8/18) 327 pgs. http://media.mcguirewoods.com/publications/Ethics-Programs/9723312.pdf