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Liner Notes

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Managing the Internet Marketing Minefield – How to Avoid Ethical Violations

The Internet offers numerous marketing opportunities for law firms, including:

  • Websites – through practice pages, blog posts, and video;
  • Social Media – such as Meta (formerly, “Facebook”), LinkedIn, and TikTok;
  • Paid Advertising – including Google and Microsoft Meta ads; and
  • Artificial Intelligence (AI) – which can be used for ad/creative development by both advertisers and media platforms.

Today, law firms face increasing pressure to embrace these opportunities to keep up with competitors. With limited time, and because marketing opportunities have become complex and continuously change, attorneys often hire internal and/or external marketing professionals to undertake marketing efforts.

While marketing matters may be delegated, delegation does not relieve attorneys of their obligations to adhere to applicable ethics rules.  This article highlights potentially unrecognized ethics marketing risks and sets forth processes that firms can implement to avoid potential ethics violations.

Key Marketing Ethical Rules

Two key marketing ethics rules are Model Rules of Professional Conduct 7.1 and 7.2 and corresponding state adaptations. Attorneys must be aware of the variations and additional requirements that may apply in the jurisdictions in which they are admitted, and the opinions issued under such rules.

Rule 7.1 Communications Concerning a Lawyer’s Services

Model Rule 7.1 prohibits false or misleading communications about a lawyer or the lawyer’s services.

Potential ethics violations –

While it’s clear that attorneys cannot make false communications, consider the following types of communications:

  • An omission example. Suppose an attorney states on his or her website that “I’ve been an attorney for 20 years” which, although factually true, does not mention that the attorney has been a full-time fireman for the last 18 years and recently decided to resume practicing law. This statement will be misleading, as a potential client may feel that he or she is hiring an attorney with 20 years of legal experience instead of two years.
  • Misleading case results. Suppose a personal injury lawyer lists a number of favorable case results along with settlement and verdict amounts.  Without a disclaimer, simply listing case results could potentially be misleading.

Rule 7.2: Communications Concerning a Lawyer’s Services: Specific Rules

Key parts of Model Rule 7.2 for marketing purposes provide that while lawyers can market through any type of media and are allowed to pay reasonable costs for advertising and marketing, lawyers cannot pay someone for recommending their services, nor can they say that they are certified as a specialist unless specific requirements are met.  In the model rule, lawyers must also provide the name of the law firm or attorney responsible for marketing communications.

Potential ethics violations –

Marketing professionals not familiar with legal ethics rules likely will not know about prohibitions such as saying a lawyer “specializes in criminal law,” for example. To the extent that specific certifications have been obtained, marketing text must use the appropriate text, such as “Certified Specialist in Injury and Wrongful Death Law by the State Bar of Arizona.”

Similarly, marketing professionals may not appreciate that a lawyer cannot claim to be the “best” injury attorney, as words like “best” are freely used in non-law firm marketing. For lawyers, a significant risk is that words such as “specialize” and “best” may be used in marketing materials that a lawyer may never see, such as meta tags in website code or Google ads text.

Disclaimers and Required Marketing Text

Disclaimers and required marketing text (such as “Advertising Material”) vary by jurisdiction.  While the use of disclaimers and required marketing text may be included in the first use of a creative, subsequent uses on other platforms may not comply.

As an example, a law firm’s website may contain the appropriate disclaimer text in the footer of the website, so that a video on the website would adhere to the marketing rules.  However, what happens when the same video is then added to a firm’s YouTube channel?  It’s important to make sure that all required text is included in all marketing platforms used.

Google and Microsoft Ads and AI

Google and Microsoft ads pose additional challenges, as both companies have introduced AI components to ad creation.  As an example, without turning off AI creation (including the AI created “Assets” – formerly known as “Extensions”), Google may create ad text touting you as the “Best Chicago Injury Attorney.” This text may then be shown in the Google search results in response to a search from someone looking for an injury lawyer.

Google and Microsoft both offer ways to disable an advertiser’s website from being “scraped” to create AI-generated content.  It’s critical for law firms to ensure that the settings for AI-generated content are turned off so that only ads created by the law firm will be displayed.

In addition, at its Google I/O 2024 Developer Conference, Google previewed several AI and other changes to be introduced, including increased AI use in search results and new tools for advertisers for developing creatives.  Law firms will want to understand these changes as they become live.

Ethical Use of Google and Other Review Platforms – Can Clients Say That I’m the “Best” Lawyer or an “Expert”?

Google Reviews, which are often shown in a “maps” box on the first page of the Google search results, have become an increasingly important aspect of marketing for many law firms.  Potential clients are often influenced by the number of 5-star reviews, as well as the review itself.

In most cases, it’s perfectly acceptable for an attorney to ask for an online review from a client, so long as there is not any pressure on the client to provide a positive review (especially if the representation is ongoing).  However, attorneys cannot pay for a review or offer a fee discount for providing a review.

Attorneys are under no ethical obligations to correct (or ask clients to correct) reviews that contain statements that an attorney cannot make so long as the attorney did not actively encourage such statements to be made.  You can’t, however, make use of such reviews (such as adding the review to your website) if it contains statements that you can’t make.

Most law firm websites are now built on WordPress, which offers “plugins” (which are like apps for an iPhone) that extend functionality.  Review plugins can be used to scrape Google reviews and automatically add such reviews to a firm’s website (settings can be used to only include 5-star reviews).  Because automated review inclusion could potentially add reviews that do not comply with ethics rules, law firms should consider not using such plugins and only manually adding reviews.

Legal Ethics Education for Marketing Professionals

Law firms often hire marketing professionals and agencies based on specific skills, such as website development and search engine optimization (SEO), but unless those hired are attorneys, they will likely not know about the ethics rules that pertain to lawyers.  As a result, anyone who will be creating marketing for your firm should be made aware of the ethics matters noted above, including:

  • Reviewing ad copy (including copy used on a firm’s website) to make sure that matters such as “past results” do not suggest that a firm might be able to obtain similar future results.
  • Not making use of review plugins.
  • Ensuring that proper disclaimers and required information such as “Advertising Material” are included in all marketing materials.
  • Not making use of marketing terms such as “best,” “specialize,” and other terms unless allowed under applicable ethics rules (and then, with the exact text that must be used).
  • Ensuring that such terms are not inadvertently used in meta tags, search engine marketing, or other places in which a lawyer is unlikely to notice.
  • Determining if AI-generated content may be ethically acceptable. With platforms such as Google and Microsoft ads, ensure that settings for AI-generated assets and text have been disabled.

Creating a Process Whereby All Marketing Materials Need to be Approved Before Publication

The final part of ensuring ethics compliance consists of developing and implementing processes for compliance, such as the following:

  • Write it down. The education items noted above should be written down so that the specific protocols can be shared with anyone working on a law firm’s marketing.
  • Create a central approval process for all new marketing posts and creatives. Law firms should develop a centralized approval process where all marketing materials are approved by a designated person who understands the ethics rules before publication.

With these processes, law firms can ensure that ethics rules are not inadvertently violated.

Originally published in the American Bar Association, Law Practice Today magazine, Sept. 14, 2024.
By: Jeff Lantz

 

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