1. Lawyers’ Electronic Advertising: Websites, Blogs, LinkedIn, etc.
J. Nick Badgerow
Spencer Fane LLP

2. Overview OLD RULE: NO ADVERTISING MODERN RULE: REGULATED ADVERTISING
FOCUS ON MODEL RULE 7.1:
NOT FALSE OR MISLEADING
NOT CREATE FALSE EXPECTATIONS
ADVERSTISING AND SOCIAL MEDIA:
FACEBOOK, TWITTER, , BLOGS
LINKEDIN
AVVO
PRACTICAL SUGGESTIONS

3. YE OLDE RULES “LAWYERS DO NOT ADVERTISE”
IMPOLITE – VIOLATION OF ETIQUETTE
UNSEEMLY AND UNGENTLEMANLY
MODEL CODE OF PROFESSIONAL RESPONSIBILITY ( ):
SHALL NOT PUBLICIZE HIMSELF THROUGH NEWSPAPER OR MAGAZINE ADVERTISEMENTS, RADIO OR TELEVISION ANNOUNCEMENTS, DISPLAY ADVERTISEMENTS IN THE CITY OR TELEPHONE DIRECTORIES
BIOGRAPHICAL AND OBJECTIVE INFO = OK

4. BATES V. STATE BAR OF ARIZONA
1977 – U.S. SUPREME COURT
STATE BAR RULE PROHIBITING LAWYER NEWSPAPER ADVERTISING =
UNCONSTITUTIONAL – FIRST AMENDMENT
STATE CANNOT CONSTITUTIONALLY PROHIBIT AD
AD: LAWYER’S WILLINGNESS TO PROVIDE “ROUTINE” LEGAL SERVICES AT SPECIFIED PRICES

5. ZAUDERER V. OFFICE OF DISCIPLINARY COUNSEL – OHIO
1985 – U.S. SUPREME COURT
PICTURE OF A DALKON SHIELD (I.U.D.)
CLIENTS COULD ASSERT CLAIMS
NOT PROHIBIT AD

6. SHAPERO V. KENTUCKY BAR ASSOCIATION
1988 – U.S. SUPREME COURT
STATE COULD NOT BAN DIRECT MAIL ADVERTISING BY LAWYERS
BAN ON DIRECT PERSONAL SOLICITATION STILL APPROPRIATE =
BECAUSE IT MIGHT INVOLVE FRAUD, UNDUE INFLUENCE, INTIMIDATION, OVERREACHING, VEXATIOUS CONDUCT

7. THE TEST PROHIBIT FALSE OR MISLEADING AD
SUBSTANTIAL GOVERNMENTAL INTEREST, E.G. PREVENT POTENTIAL ILLS OF IN-PERSON, DIRECT SOLICITATION
REGULATION MUST DIRECTLY ADVANCE STATE INTEREST
REGULATION MUST BE REASONABLE, NARROWLY DRAFTED

8. MODEL RULES OF PROFESSIONAL CONDUCT
M.R.P.C. = 49 STATES + VIRGIN ISLANDS AND D.C.
CALIFORNIA ALONE HAS NOT ADOPTED THE MODEL RULES.
KANSAS: RULES 7.1 – 7.5
RULE 1.1: KEEP ABREAST OF BENFITS AND RISKS ASSOCIATED WITH RELEVANT TECHNOLOGY

9. RULE 7.1 NOT MAKE A FALSE OR MISLEADING COMMUNICATION =
NO MATERIAL MISSTATEMENTS OF FACT OR LAW
NOT CREATE UNJUSTIFIED EXPECTATIONS FOR RESULTS
NO UNSUBSTANTIATED COMPARISONS WITH THE SERVICES OF OTHER LAWYERS

10. RULE 7.2 MAY ADVERTISE ELECTRONICALLY
KEEP RECORDS OF ADVERTISING FOR TWO YEARS
NOT PAY FOR RECOMMENDATIONS
EXCEPT NON-PROFIT LAWYER REFERRAL SERVICE
INCLUDE AT LEAST ONE LAWYER’S NAME IN AD

11. RULE 7.3
NO IN-PERSON, LIVE TELEPHONE, OR REAL-TIME ELECTRONIC SOLICITATION
UNLESS:
PERSON IS A LAWYER
FAMILY, CLOSE PERSONAL, OR PRIOR PROFESSIONAL RELATIONSHIP
NO SOLICITATION EVEN IF NOT OTHERWISE PROHIBITED IF:
TARGET SAYS NO CONTACT OR
COERCION, DURESS, HARASSMENT
IF SOLICITING SOMEONE KNOWN TO NEED A LAWYER
“ADVERTISING MATERIAL” ON ENVELOPE + BEGINNING AND END
PREPAID OR GROUP LEGAL SERVICE PLAN IS OK

12. RULE 7.4 FIELDS OF PRACTICE COVERED OR EXCLUDED BY LAWYER
PATENT ATTORNEY
ADMIRALTY
NOT SAY “CERTIFIED” UNLESS:
ORGANIZATION APPROVED BY STATE BAR (NONE) OR ABA
NAME OF ORG. CLEARLY IDENTIFIED

13. RULE 7.5 FIRM NAME – OK IF NOT VIOLATE RULE 7.1
TRADE NAME – NOT IMPLY GOV’T. CONNECTION
IDENTIFY STATES OF ADMISSION
NOT INCLUDE PUBLIC OFFICIAL IN FIRM NAME IF LAWYER NOT ACTIVELY INVOLVED IN PRACTICE
NOT IMPLY PARTNERSHIP OR OTHER ORG. IF NOT TRUE

14. LAW FIRM WEBSITES INTERNET ADVERTISING IS ADVERTISING
ABA OPINION (2010)
WEBSITES NOT CONTAIN FALSE/MISLEADING INFORMATION
WATCH WEBSITE TO MAINTAIN ACCURACY AND CURRENCY
MAKE SURE THAT UNINTENTIONAL ATTORNEY-CLIENT RELATIONSHIPS ARE NOT FORMED

15. OP REVIEWS RULES
RULE 7.1: NO FALSE OR MISLEADING COMMUNICATIONS
RULE 8.4(C): NO DISHONESTY, FRAUD, DECEIT OR MISREPRESENTATION
RULE 4.1: NO FALSE STATEMENT OF MATERIAL FACT OR LAW TO A THIRD PERSON

16. OP. 10-457 ALLOWS WEBSITE TO CONTAIN:
INFORMATION ABOUT THE LAWYER. BIOGRAPHICAL & HISTORICAL
CLIENT INFORMATION (WITH INFORMED CONSENT).
INFORMATION ABOUT THE LAW. ACCURATE – NOT MATERIALLY MISLEADING
INTERACTIVE WEBSITES. DISCLAIMER = NO ATTY/CLIENT RELATIONSHIP IS CREATED

17. OP. 10-457 - GUIDANCE FOR WEBSITES
UPDATED – ON A REGULAR BASIS
ACCURATE AND CURRENT
DISCLAIMERS.
NOT CREATE UNJUSTIFIED EXPECTATIONS
NOT MISLEAD
NO ADVICE. SAY INFO. IS GENERAL IN NATURE – NOT ADVICE
NO ATTY/CLIENT RELATIONSHIP (1) NO CLIENT-LAWYER RELATIONSHIP; (2) INFORMATION WILL NOT BE KEPT CONFIDENTIAL; (3) NO LEGAL ADVICE HAS BEEN GIVEN; AND (4) LAWYER WILL NOT BE PREVENTED FROM REPRESENTING ADVERSE PARTY.
SEE RULE 1.18: PROSPECTIVE CLIENT COULD BE “CLIENT” – MAKE IT CLEAR

18. LAWYER BLOGS RULE 7.1 – NO FALSE OR MISLEADING COMMUNICATIONS
RULE 1.6 – CLIENT CONFIDENTIALITY
RULE 3.6 – TRIAL PUBLICITY. SUBSTANTIAL LIKELIHOOD OF MATERIALLY PREJUDICING AN ADJUDICATIVE PROCEEDING.
RULE 4.1 AND 8.4(B) – NO MISREPRESENTATION
RULE 4.4 – RESPECT FOR OTHERS. “NO SUBSTANTIAL PURPOSE OTHER THAN TO EMBARRASS, DELAY OR BURDEN A THIRD PERSON.”
RULE 7.2 – IDENTIFICATION. IDENTIFY THE LAWYER BY NAME AND OFFICE ADDRESS. KEEP COPIES TWO YEARS
RULE 7.3 – NOT SOLICIT. INTERACTIVE BLOGS SHOULD AVOID CREATING ATTORNEY-CLIENT RELATIONSHIP (OR APPEARANCE OF RELATIONSHIP) BETWEEN THE LAWYER AND OTHER POSTERS.
RULES 5.1 & 5.3 – RESPONSIBILITY OF FIRM FOR LAWYER AND NON-LAWYER EMPLOYEES

19. FACEBOOK, TWITTER, E-MAIL, OTHER SOCIAL MEDIA
RULE 7.3(B): NOT SOLICIT PROFESSIONAL EMPLOYMENT BY REAL-TIME ELECTRONIC CONTACT IF:
TARGET SAYS NO – OR -
COERCION, DURESS OR HARASSMENT
ISSUE: HOW EASILY CAN PROSPECTIVE CLIENT IGNORE THE SOLICITATION?
(A) SOLICITATION IN REAL-TIME CHAT ROOM = PROHIBITED
TWEETS, POP-UP CHATS ON A FIRM WEBSITE, S, REQUESTS FOR A “LIKE” ON FACEBOOK CAN BE IGNORED = PERMITTED.

20. LINKEDIN REGISTER PERSONAL BIOGRAPHY PHOTOGRAPH EDUCATION EMPLOYMENT
HONORS AND AWARDS
LINKS TO ARTICLES, BLOGS
AREAS OF PRACTICE.
CONNECT WITH OTHER MEMBERS (500,000,000)
RECOMMENDATIONS
ENDORSEMENT

21. LINKEDIN: RISKS AND RULES
FALSE SPECIALIZATION? 7.4(A): NOT STATE/IMPLY CERTIFIED AS SPECIALIST UNLESS ACTUALLY CERTIFIED
HIGHER STANDARD OF CARE? EXPERT OR SPECIALIST, HIGHER THAN ORDINARY LAWYER
CLIENT CONFIDENCES? CLIENT DISCLOSURE VIA RECOMMENDATION?
FALSE ADVERTISING? ENDORSEMENT WITHOUT KNOWLEDGE
IS THAT A “COMMUNICATION” BY THE LAWYER?
7.1(C): NOT CREATE UNJUSTIFIED EXPECTATION
LAWYER IS RESPONSIBLE FOR ANY RECOMMENDATIONS / ENDORSEMENTS/ RATINGS GIVEN TO LAWYER ON A THIRD-PARTY WEBSITE, E.G. LINKEDIN
DO NOT ACCEPT RECOMMENDATIONS WITHOUT FOUNDATION
PAYING FOR ADVERTISING? RULE 7.2(C) – NOT PAY FOR ENDORSEMENT, OR AGREE TO MUTUAL ENDORSEMENTS (VALUE)

22. LINKEDIN: PRACTICAL STEPS
MEMBER = CONTROL YOUR PROFILE
CAN TURN OFF OPTION WHICH ADDS ENDORSEMENTS – OR –
WATCH YOUR PROFILE. KEEP IT ACCURATE, CURRENT, NOT IMPLY SPECIALIZATION
WATCH YOUR RECOMMENDATIONS. ADD ENDORSEMENT ONLY IF:
ACCURATE AND NOT MISLEADING
NOT CONTAIN PRIVILEGED, WORK PRODUCT, OR CLIENT CONFIDENTIAL INFORMATION
NOT CREATE FALSE AND UNJUSTIFIED EXPECTATIONS
WATCH YOUR ENDORSEMENTS. REVIEW THEM
AREA IN WHICH YOU ACTUALLY PRACTICE
DELETE ANY = NOT ACCURATE
NEW YORK ETHICS OPINION = ETHICAL DUTY TO MONITOR AND CONTROL UNJUSTIFIED ENDORSEMENTS

23. AVVO & OTHER REFERRAL SOURCES
AVVO = WEBSITE REFERRAL SOURCE
“NEARLY EVERY LICENSED LAWYER IN THE U.S.” = 97%
= 1.276,094 LAWYERS
PROFILES, REVIEWS, AVVO RATING
ON-CALL SERVICE = IMMEDIATE LEGAL ADVICE = PAY $39
$8 BILLION IN REVENUE TO LAWYERS ANNUALLY
650,000 CONTACTS EACH MONTH
11.3 MILLION SEARCHABLE QUESTIONS
CONTRACTS WITH LAWYERS:
AVVO COLLECTS FROM CLIENT
AVVO PAYS LAWYER
AVVO TAKES ITS PERCENTAGE SHARE (“MARKETING FEE”)
CONTINGENT ON COLLECTING FROM CLIENT

24. IS AVVO LEGAL? NEW JERSEY JOINT OPINION 44 (JUNE 21, 2017)
RULE 5.4: NOT SHARE LEGAL FEES WITH A NONLAWYER
RULE 7.3(D): PERMITS PREPAID OR GROUP LEGAL SERVICE PLANS, BUT ONLY TO SOLICIT MEMBERSHIPS OR SUBSCRIPTIONS FROM PERSONS WHO ARE NOT KNOWN TO NEED LEGAL SERVICES
AVVO CHARGES AND COLLECTS FROM ATTORNEY UPON THE PERFORMANCE OF WORK BY THE LAWYER AND PAYMENT BY THE CLIENT
AVVO “REFERRAL FEES” VARY BY SERVICE RENDERED
RULE 7.2(C): NOT GIVE ANYTHING OF VALUE TO A PERSON FOR RECOMMENDING THE LAWYER'S SERVICES EXCEPT NOT-FOR-PROFIT LAWYER REFERRAL SERVICE
S. CAROLINA; PENN.; N.Y.; OHIO; N.J.; UTAH = ALL SAY NO
LEGALZOOM AND ROCKET LAWYER= DO NOT CHARGE SHARED FEES DISGUISED AS MARKETING FEES = OK

25. CONCLUSION KEEP UP WITH TECHNOLOGY KEEP IT ACCURATE, UPDATED
NOT PROMISE OR IMPLY RESULTS
NOT CREATE ATTY/CLIENT RELATIONSHIP
NOT PAY FOR REFERRALS

26. Lawyers’ Electronic Advertising: Websites, Blogs, LinkedIn, etc.
J. Nick Badgerow
Spencer Fane LLP