LMA Legal Marketing Association Northeastern Regional Chapter presentation by Jennifer Schaller Managing Director of the National Law Review and Elissa Torto Assistant Bar Counsel of the Massachusetts Office of Bar Counsel on legal ethics in attorney advertising. Law firm websites, blogs and social media may be treated as advertisements under the ABA Model Rules. Jennifer Schaller and Elissa Torto Assistant Bar Counsel of the Massachusetts Office of Bar Counsel discuss the ABA Model Rules concerning attorney advertising focusing on what legal marketers should know.

1. WiFi Network: ICBoston Password: LexMachina
Ethics?
Lawyers’ Online Presence:
Websites
Social Media
Online Reviews

2. Presenters:
Jennifer Schaller, Esq. Managing Director,
The National Law Review
Elissa Torto, Assistant Bar Counsel,
Massachusetts Office of Bar Counsel

3. What We’ll Be Talking About:
Who is Responsible
The Rules
Images & Website Disclaimers
Certifications & Specialties, Awards
Representative Matters & Testimonials
Online Reviews & Prof. Networking
Social Media

4. General Baseline Rule:
Law firm websites, blogs & social media are all
regulated communication and may be treated as
advertisements under the ABA Model Rules.

5. Websites:
Images Count

6. Would You Like to Make this Press Statement?
"The look and feel of our Web site will be compatible with the new
marketing materials, which will not incorporate the use of models as a
design element. When our existing Web site was redesigned in 2007,
firm management decided to use models rather than our own lawyers
so as not to divert our lawyers’ time from serving our clients."
Am Law CMO Media Statement.

7. Beautiful People & Diverse Teams

8. Rule
7.1
•Communication Concerning a
Lawyer’s Services
• “A lawyer shall not make a false or
misleading communication about the
lawyer or the lawyer’s services.
• 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.”
ABA
Model
Rules

9. Websites: Attorney
Bios & Practice
Group Pages

11. Attorney Bios & Practice Group Pages
Bios are the
most visited
pages on law
firm websites
What do
prospective
clients want to
know?
What have you
actually done.
How well did
you do it.

12. Who You Know
& Influential
Connections

13. Connections with
Political or
Regulatory Officials
• NOT OK: Lawyers “worked closely with the
City’s various boards and municipal officials”
not only violated Rule 7.1 by creating an
unjustified expectation, it also violated Rule
8.4(5) “because it implies an ability to
influence these government agencies and
officials.”
• NOT OK: Pairing a factual statement about a
firm’s experience as town attorneys with a
statement that such experience gave the
firm’s attorneys a “unique perspective.”
• OK: “to recite a lawyer’s professional
experience by indicating what
boards the lawyer has served
on.” Or prior judicial
clerkship or
government employment.

14. Connections with Judges

15. Websites: Prior
Outcomes, Expectations,
& Disclaimers

16. “We Listen. We Care. We Win.”
Trumpeting only successes in a
marketing communication may be
deemed a misleading or non-verifiable
statement.
ABA Model Rule 7.1, Comment 2:
A truthful statement is misleading if a substantial likelihood
exists that it will lead a reasonable person to formulate a
specific conclusion about the lawyer or the lawyer’s services
for which there is no reasonable factual foundation.

17. Representative Matters & Testimonials
“Statements on this website of prior results
do not guarantee a similar outcome.”
• May be permissible
• Likely require informed
consent / permission,
sometimes in writing
• Should include a disclaimer

18. Representative Matters & Testimonials
ABA
Model
Rules
ABA Model Rule 7.1, Comment 3
• A communication that truthfully reports a lawyer’s
achievements on behalf of clients or former clients may be
misleading if presented so as to lead a reasonable person to
form an unjustified expectation that the same results could
be obtained for other clients in similar matters ….
• … an unsubstantiated claim about a lawyer’s or law firm’s
services or fees, or an unsubstantiated comparison of the
lawyer’s or law firm’s services or fees with those of other
lawyers or law firms, may be misleading …
• The inclusion of an appropriate disclaimer or qualifying language
may preclude a finding that a statement is likely to create
unjustified expectations or otherwise mislead the public.

19. Rule
1.6(a)
•Confidentiality of
Information
•A lawyer shall not reveal
information relating to the
representation of a client
unless the client gives
informed consent…
ABA
Model
Rules

20. Actually have had the client & actually
have handled the matter - must be true!
Run what you are going to include by
client or past client – get permission
(written consent may be required)
Cannot provide anything of value for
permission or for testimonial or use of
client’s name
Use appropriate disclaimers
Best Practices:
Representative
Matters &
Testimonials

21. Websites:
Recognition, Awards
& Specialization

22. Awards & Recognitions

23. Specialization & Certifications
Some states permit them
Many states do not
Be sure an actual certification exists
and then only list for that jurisdiction
Certain states require disclaimers
along with certification
Very State-
Specific
(no Model
Rule)

24. Websites:
Allowing Potential
Clients to Contact
the Firm

25. ABA
Model
Rules
Rule
1.18
•Duties to
Prospective Clients
• covers persons who “discuss” the
possibility of forming lawyer-client
relationship
• even when no attorney-client
relationship results, there are duties
of confidentiality that can attach
• consultations can be through
electronic means

26. Know the rules in your state/states
Use Disclaimers
Nothing can be untrue or misleading
Be careful about allowing contact
from potential clients
Best Practices:
Websites

27. What Do You Think?
Some attorneys at your firm have become
increasingly frustrated by not being able to fully promote
their achievements on your firm’s website and like the
more robust descriptions and the aggressive imagery
they’ve seen on some other firm’s sites.
Most Likely OK or Not OK….

28. The firm’s real estate department is
“one of the best” in the area.
Most Likely OK or Not OK?
What Do You Think?

29. A close-up image of a tiger’s eyes
or of a wizard?
Most Likely OK or Not OK?
What Do You Think?

30. The law firm is a “full service firm.”
Most Likely OK or Not OK?
What Do You Think?

31. The lawyer’s membership in the
Florida Bar (if the lawyer is a
member of the Florida Bar)?
Most Likely OK or Not OK?
What Do You Think?

32. The law firm has “30 years of experience”
(which represents the combined legal
experience of the firm’s lawyers)?
Most Likely OK or Not OK?
What Do You Think?

33. Review Sites &
Professional
Networking

34. LinkedIn & Similar Sites Count as Advertising!
• Statements must
be accurate, not
misleading
• Endorsements

35. False Statements on LinkedIn
In the Matter of Dannitte Mays Dickey (SC)

36. Lawyer Review Sites

37. How NOT to Handle Online Reviews
• Cannot incentivize
positive reviews
• Cannot lie in response
• Cannot disclose
confidential client
information (even if the
client has outed him or
herself)
“I feel badly for [client] but his
own actions of beating up a
female coworker are what caused
the consequences he is now so
upset about.”
Client had been “locked up
in the looney bin for
months due to severe
psychological conditions.”
Client should “show some
fortitude and man up, boy.”

38. Cannot invent reviews or
endorsements – must be true!
Most bars would prohibit lawyers
from "scripting" online reviews or
LinkedIn recommendations
Cannot offer anything of value
If client matter/testimonial, get
permission in writing to use
If responding to negative reviews
– cannot disclose confidential or
personal information
Keep it classy……
Best Practices:
Reviews &
Professional
Networking

39. Social Media

40. “…Proper attire for trial.” Attorney Facebook Post

41. Twitter Commentary
Am Law Partner’s
tweet about snarky
SCOTUSblog post
about a case
“naughty, naughty boy”
“…There is nothing to smile
about, douchebag.”
Kansas state gov’t lawyer
live-tweeting during
attorney general’s bar
disciplinary hearing
“Go f@ck
yourself and die.”
“I predict that he will be disbarred
for a period not less than 7 years.”

42. Ethics rules apply to social media
Ethics rules may attach to lawyer’s
personal social media accounts
regardless of whether profession
disclosed
Have a firm-owned account and a
social media policy for firm employees
& vendors
Best
Practices:
Firm &
Firm
Employee
Social
Media

43. Who is
responsible

44. The Trifecta 1. Improperly used a "seal"
of Attorney Certification
on website;
2. Lawyer did not realize the
seal was on his website
for approximately two
years;
3. Attorneys are responsible
for monitoring the content
of all communications with
the public --including their
websites...

45. In Closing

46. Resources
 ABA MODEL RULES OF PROFESSIONAL CONDUCT
https://www.americanbar.org/groups/professional_responsibility/publicati
ons/model_rules_of_professional_conduct/model_rules_of_professional
_conduct_table_of_contents.html
 State-specific Rules of Professional Conduct for each state where
your attorneys are practicing
 Lawyer Marketing: An Ethics Guide Hypotheticals and Analyses
McGuireWoods LLP T. Spahn (2/8/18) 327 pgs.
http://media.mcguirewoods.com/publications/Ethics-
Programs/9723312.pdf