Ethics Rules for Online Attorney Advertising in Washington State
Today, a large number of potential clients turn to the internet to locate an attorney. Consequently, online attorney advertising has increased tremendously in recent years. A handful of jurisdictions specifically regulate search engine marketing (e.g. Google AdWords) in their ethics rules. New York Rule of Professional Conduct 7.1, for example, states that “[a] lawyer or law firm shall not utilize: . . . (2) meta-tags or other hidden computer codes that, if displayed, would violate these Rules.” But most jurisdictions, including Washington State, do not expressly address the issue of online advertising in their Rules of Professional Conduct. This, of course, begs the question, what limitations are imposed on attorneys who advertise online in Washington State? Needless to say, ignorance of the ethics rules is not a valid excuse.
Fortunately, in 2014, the WSBA Ethics Committee provided guidance on the issue of online attorney marketing. In short, the Committee advised that RPC 5.3(c)(1), 7.1, 7.2, 7.2(b), 7.2(b)(1), 7.4, 7.4(a), and 8.4(a) govern online advertising in the same manner that they govern non-internet based marketing. See Ethics Opinion 201401. Some specific practice pointers noted by the WSBA Ethics Committee include the following:
- Lawyers are allowed to advertise that they work on cases against specific defendants, so long as it is not false or misleading. “A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.” RPC 7.1.
- A lawyer is permitted to publicly disseminate a variety of types of information, including but not limited to information concerning a lawyer’s name or firm name, address and telephone number; the kinds of services the lawyer will undertake; the basis on which the lawyer’s fees are determined, including prices for specific services and payment and credit arrangements; a lawyer’s foreign language ability; names of references and, with their consent, names of clients regularly represented; and other information that might invite the attention of those seeking legal assistance.
- Merely paying the reasonable cost of disseminating the information above does not constitute an improper recommendation of a lawyer’s services. Therefore, lawyers may pay others to disseminate such information, provided that the information is accurate. The payment can be calculated by a variety of methods, provided that the ultimate amount is reasonable. For example, the payment could be a flat fee, a monthly fee, or pay-per-click fee.
- “A lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law.” RPC 7.4(a). But a lawyer shall not state or imply that the lawyer is a specialist in a particular field of law, except as provided by RPC 7.4. And a lawyer must be accurate when communicating about his or her services to ensure the information is not false or misleading.
- A lawyer may compensate others to provide marketing or client-development services. RPC 7.2 cmt. 5. But a lawyer shall be responsible for the conduct of a nonlawyer in certain circumstances; and it is professional misconduct for a lawyer to violate or attempt to violate the Rules of Professional Conduct through the acts of another. See RPC 5.3(c)(1); RPC 8.4(a).
- Lawyers may pay others for generating client leads, such as Internet-based client leads, as long as (1) the lead generator does not recommend, endorse, or vouch for Lawyer or Lawyer’s services, (2) any payment to or communication by the lead generation service is otherwise consistent with the Rules of Professional Conduct, and (3) the lead generation service does not make misleading statements or material misrepresentations. Therefore, the lead generation service’s matching criteria must be based on disclosed, objective criteria. When a website attempts to match lawyers and clients based on a purported evaluation of the client’s needs, or when a website vouches for the qualifications of the participating lawyer, then the website is a referral service, and the lawyer must not pay to participate.
- If the lead generation service makes subjective decisions in order to match the client to the lawyer, then the lawyer’s payment constitutes an impermissible giving of value for recommending the lawyer’s services or channeling work. If, instead, the service matches clients and lawyers simply based on objective information—such as geographic information akin to a directory service—and discloses the specific basis upon which it matches lawyers and clients, then the payment does not violate the rule.
- Before participating in the lead generation service, lawyers should reasonably research and evaluate the nature of the communications between the service and the prospective clients, as well as the basis of the lead generation’s matching or references to the lawyer. If the service will misrepresent the nature of its function, then Lawyer’s participation could constitute professional misconduct.
- If the service were to represent, expressly or impliedly, to the prospective clients that it has made a subjective match based on judgment—when the match is based solely upon objective information—then this would be misleading, and Lawyer must not participate.
- Because of the likelihood that prospective clients will infer that the lead generation service is making subjective matching decisions, lawyers must not participate in the lead generation service unless the service clearly discloses, in plain and conspicuous language, that the match was made solely based on specified objective information (e.g., geographic information, years of practice, or practice areas as described by the lawyer). Moreover, lawyers must not participate in a lead generation service that states, implies, or creates a reasonable impression that it is making the referral without payment from the lawyer or has analyzed a person’s legal problems when determining which lawyer should receive the referral.