Lawyers’ Electronic Advertising: Websites, Blogs, LinkedIn, etc.

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, E-MAIL, 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 (1969 - 1988): • 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 10-457 (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. 10-457 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, E-MAILS, 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