Ethics Opinion Articles - NC State Bar Journal

The Ethical Website

By Deanna S. Brocker and Douglas J. Brocker

Editor's Note: Deanna Brocker, assistant ethics counsel for over ten years, is leaving the State Bar to join her husband in the private practice of law. Deanna's calm, caring demeanor, insight, and intelligence made her a great asset to the ethics department and a beloved member of the staff. She will be missed. We wish her the very best.

In either establishing or redesigning a law firm website, the first step is deciding what its primary purpose will be. Some firms and lawyers use their websites primarily for informational purposes. Others, including many traditional North Carolina firms, use their websites to actively and sometimes aggressively market their practices and services. Either way, a law firm's website will be subject to the State Bar's general rules on advertising as well as the specific ethics opinions on websites discussed herein.

The next step is selecting a website domain name or Uniform Resource Locator (URL) designation. Even this basic decision implicates the ethics rules. First, if the website domain name “is more than a minor variation of the official name of the firm, it must be registered with the State Bar [as a trade name] in accordance with Rule 7.5(a) ….” 2005 FEO 8. Second, the URL or domain name cannot be false or misleading, as with any other firm trade name. The State Bar will permit the use of domain names, even when it is not apparent that the website is for a law firm. Examples of such approved domain names include “Druginjury.com” and “NCworkinjury.com.” The website home page, however, must clearly and unambiguously identify the site as belonging to a law firm or lawyer. 2005 FEO 14.

A law firm also must decide whether to use metatags in its website to actively solicit potential clients. Metatags are hidden data in the HTML (hypertext mark-up language) for websites and are used to describe the contents of a website and to manipulate search engines. While there is no ethics opinion on point, Rule 7.1's prohibition against misleading communications about the lawyer's services is broad enough to cover metatags. They are a form of advertising, and as such, would probably be subject to the same restrictions as any other form of legal advertisement.

Website Content: What is Permitted and Prohibited

With regard to the content of a website, the general advertising rules apply. RPC 239. The North Carolina Rules of Professional Conduct now explicitly state that they apply to electronic communications, such as websites. Rule 7.2(a) and 7.3(b) & (c).

Websites are unlike other forms of advertising in a few key areas. Because websites are readily accessible to people all over the country and the world, North Carolina lawyers should identify the jurisdictions in which they are licensed to practice law to avoid any ambiguity or misrepresentation. RPC 239. This is particularly true if a law firm website promotes itself as a “national” firm or similar designation. A law firm having offices and clients only in North Carolina could not market itself as a “national practice” because it would be misleading under Rule 7.1. Failure to designate jurisdictional limitations in a website may also run afoul of other state's unauthorized practice laws.

Because websites are flexible and easy to change, lawyers and law firms have a higher obligation to maintain current and accurate information on their sites. For example, if a lawyer or practice section leaves a firm, the website should be updated as soon as possible.

Websites also are unique in that they permit inclusion of a volume of information that it would be impractical to include in more traditional advertising or marketing media. Information such as client lists, attorney resumes or bios, detailed descriptions of practice areas, and client testimonials may be posted on a website.

Not all client testimonials are acceptable forms of advertising, however. Some client endorsements or testimonials containing truthful information may be included in a website with the client's consent. For example, “soft endorsements,” touting a lawyer's responsiveness, diligence, and efficiency, are permissible. However, the use of actors to pose as clients, the use of endorsements relating to a specific result or outcome in a case, or a comparison of the lawyer's services to others may violate the rules. A good rule of thumb: a client testimonial cannot say anything the lawyer could not say directly.

The State Bar has stated that lawyers may include verdict records on their website—at least theoretically. 2000 FEO 1. Generally, statements about the lawyer's record in obtaining favorable verdicts have been prohibited in other forms of advertising because such statements tend to create unjustified expectations in violation of Rule 7.1. Nonetheless, the State Bar acknowledges that it is possible to provide enough context in a website to avoid being misleading. This context would have to include information about the lawyer's unfavorable verdicts and settlements, success in collecting favorable verdicts, whether the cases were contested, and whether the opposing party was represented, among other items.

A Virtual Law Office to Deliver Unbundled Legal Services

A recent ethics opinion explores a cutting-edge use of the internet and websites to deliver legal services. 2005 FEO 10. This opinion deals with a law firm that is marketing and providing legal services exclusively over the internet as a “virtual law firm.” The virtual lawyer neither meets with clients nor maintains an office to do so. The State Bar outlined the following potential pitfalls with this type of arrangement: (1) engaging in the unauthorized practice of law in other jurisdictions; (2) violating advertising rules in other jurisdictions; (3) providing incompetent representation because of the limited client contact; (4) unintentionally creating a lawyer-client relationship; and (5) risking disclosure of client confidences. Assuming the law firm addresses and avoids these pitfalls, the State Bar ruled that a law firm ethically may maintain this type of virtual practice.

A second and equally important aspect of the opinion concerns providing “unbundled” legal services to pro se litigants and others through a website. “Unbundled” services are those offered on an á la carte basis to clients. Such limited services include document drafting assistance or review, legal advice, case evaluation, and litigation coaching. The lawyer may provide a limited menu of legal services pursuant to Rule 1.2, so long as the lawyer makes an independent legal judgment that such services can be provided ethically and effectively. 2005 FEO 10.

Conclusion

It is extremely likely that the use of websites and the internet to attract potential clients and deliver legal services will continue to increase dramatically in the years to come. Whether a lawyer is entering into e-marketing and e-services for the first time or expanding an existing website, it is important to keep abreast of both the ethical and technological developments in this area. Be careful, it's a “brave new world” out there.

Douglas J. Brocker and Deanna S. Brocker are the principals in The Brocker Law Firm, PA. They concentrate their practice in professional ethics, licensing, and disciplinary matters, including representing professionals in disciplinary matters before their respective licensing boards. They both speak and publish articles regularly on ethical and professionalism issues.

Doug formerly was trial and UPL counsel at the North Carolina State Bar, where he investigated and prosecuted disciplinary matters for approximately six years. Until recently, Deanna served as assistant ethics counsel to the North Carolina State Bar for more than ten years, where she answered ethics questions from attorneys all over the state.

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