Thursday, December 30, 2010
Lawyers' websites have replaced business cards and Yellow Pages ads as marketing tools. But they also create some serious ethical and professional risks for the lawyers who use them if the sites aren't worded carefully. As this post from the online ABA Journal Blog explains, the ABA Standing Committee on Ethics and Professional Responsibility issued a recent opinion [Formal Opinion 10-457 dated Aug. 5, 2010] providing some guidance to lawyers on how to avoid inadvertently creating attorney-client relationships through website solicitations.
The opinion recognizes the growing use of websites by lawyers. 'A lawyer website can provide to anyone with Internet access a wide array of information about the law, legal institutions and the value of legal services,' states the opinion. Websites also serve as an effective marketing tool for lawyers, the opinion notes.
But the opinion cautions that 'the obvious benefit of this information can diminish or disappear if the website visitor misunderstands or is misled by website information and features.' For lawyers, online marketing can give rise to problems when website visitors interpret material posted as general information to apply to specific situations, or when visitors make unanticipated inquiries or unexpectedly provide confidential information. Websites that invite inquiries, such those with 'contact us' or 'click here for a free consultation' buttons, can be especially problematic.
How can lawyers avoid these problems? With good disclaimers.
Lawyers are 'well-advised to consider that a website-generated inquiry may have come from a prospective client,' states the opinion, and they should pay special attention to including appropriate warnings that effectively limit, condition or disclaim any obligations to website visitors. 'Such warnings or statements may be written so as to avoid a 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.'
The key, concludes the ethics committee’s opinion, is that 'limitations, conditions or disclaimers of lawyer obligations will be effective only if reasonably understandable, properly placed and not misleading. This requires a clear warning in a readable format whose meaning can be understood by a reasonable person.' And, the opinion notes, 'The appropriate information should be conspicuously placed to assure that the reader is likely to see it before proceeding.'
You can read more about the risks associated with lawyer websites, and the ways to avoid them, here courtesy of the online ABA Journal Blog.