attorney advertising via blogs, websites and social

Presenting a live 90‐minute webinar with interactive Q&A

Attorney Advertising via Blogs, Websites Attorney Advertising via Blogs, Websites and Social Networks: Ethical RisksNavigating Legal Ethics and Regulations in Marketing Legal Services

T d ’ f l f

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific

TUESDAY, NOVEMBER 9, 2010

Today’s faculty features:

Devika Kewalramani, Partner, Moses & Singer, New York

Benjamin Cowgill, Counselor and Attorney at Law, Lexington, KY

The audio portion of the conference may be accessed via the telephone or by using your computer's speakers.Please refer to the instructions emailed to registrants for additional information. If you have any questions,please contact Customer Service at 1-800-926-7926 ext. 10.

Continuing Education Credits FOR LIVE EVENT ONLY

For CLE and/or CPE purposes, please let us know how many people are listening at your location by completing each of the following steps:

• Close the notification box

• In the chat box, type (1) your company name and (2) the number of attendees at your location

• Click the blue icon beside the box to send

Tips for Optimal Quality

S d Q litSound QualityIf you are listening via your computer speakers, please note that the quality of your sound will vary depending on the speed and quality of your internet connection.

If the sound quality is not satisfactory and you are listening via your computer speakers, you may listen via the phone: dial 1-866-869-6667 and enter your PIN when prompted Otherwise please send us a chat or e mail when prompted. Otherwise, please send us a chat or e-mail [email protected] immediately so we can address the problem.

If you dialed in and have any difficulties during the call, press *0 for assistance.

Viewing QualityTo maximize your screen, press the F11 key on your keyboard. To exit full screen, press the F11 key againpress the F11 key again.

November 9, 2010Presented By: Devika Kewalramani, Esq.PartnerMoses & Singer LLP

Attorney Advertising via Blogs,Attorney Advertising via Blogs, Websites and Social Networks: Ethical Risks

© 2010 Moses & Singer LLP# 845763

FACEBOOK, TWITTER, LAW FIRM WEBSITES & BLOGS

LAW FIRM MARKETING AND PUBLIC RELATIONS TRENDS:PUBLIC RELATIONS TRENDS:

WHAT ARE FIRMS DOING?

Attorney Advertising Via Blogs, Websites and Social Networks: Ethical Risks

5Nov. 9, 2010

LAW FIRM MARKETING TRENDS – LEADERS AND LAGGARDS

Some solo & small firm practitioners were E l Ad tEarly Adopters

Firms are largel partFirms are largely part of the Late Majority


6Nov. 9, 2010

HOW AND WHY LAW FIRMS ARE USING SOCIAL MEDIA

• Innovatively engage with targeted audience• Draw and follow new clients and key players in

client industries• Promote firm’s services and practices • Highlight firm’s successes• Network and connect with peers

G t ti f ti• Garner reputation for expertise


7Nov. 9, 2010

BLOGS MOST POPULAR NEW MEDIUM AMONG LAWYERS & FIRMS

• 42% of in-house counsel & 35% of firm attorneys are already active in blogosphere

• 50% of in-house counsel say attorneys' high-profile blogs will affect hiring decisions in the future

S 2009 N t k f C l S & C t C l N M di E t S


8Nov. 9, 2010

Sources: 2009 Networks for Counsel Survey & Corporate Counsel New Media Engagement Survey.

IN-HOUSE COUNSELS’ VIEWS OF FIRM WEBSITES

• “100% percent of participants indicated that they always review a firm’s Web site when evaluating and purchasing legal services.”

• “Small and mid-sized firms need to have a quality site even more than large firms because the smaller firms have even less brand value on which they can sell me.”

• “For a mid-size firm to have a good web site is an indication of sophistication – it shows me they can play with the big boys.”

• “If they want to be competitive, they should make sure they have a great site.”

• “They all look like they took their marketing materials and handed it to web guys


9Nov. 9, 2010

y y g g yand put it online. I could do a better job writing the content for a law firm web site.”

ETHICAL RULES THAT APPLY TO ATTORNEYS ADVERTISINGATTORNEYS ADVERTISING

THROUGH WEBSITES & BLOGS


10Nov. 9, 2010

ATTORNEY ADVERTISING – WHAT’S CHANGED

• Traditional media (newspaper ads, radio, TV) – Live but local

• Internet – global reach • New ethics issues never dealt with before• States differ on perception and regulation of

attorney advertising


11Nov. 9, 2010

LAW FIRM WEBSITES LAW FIRM BLOGS SOCIAL MEDIA• Least interactive • Akin to phonebook ad• Tool for attorney selection

Includes attorney contact

• Blogs with legal focus– Field of practice– Networking– Subscribers post

• Highly interactive • If link to law firm

websites, may be subject to attorney • Includes attorney contact

information and advertising material

• Subject to advertising l i

Subscribers post comments

– Interaction with prospects– Subject to website

advertising rules

subject to atto eyadvertising rules

• If solicit professional employment, may be subject to attorneyregulations advertising rules,

solicitation rulesBlogs with non-legal focus

– FTC guidelines on endorsements

subject to attorney solicitation rules

endorsements– Subject to rules applying

to other media


12Nov. 9, 2010

MODEL RULE 7.1 - COMMUNICATIONS CONCERNING LAWYER’S SERVICES

• Prohibits “false or misleading” communication about lawyer or lawyer’s services

Contains material misrepresentation of fact or law?– Contains material misrepresentation of fact or law?– Omits fact necessary to make statement considered as

a whole not materially misleading?• Avoid false impressions, misleading statements,

unjustified expectations and unsubstantiated comparisons• New York rule – also prohibits “deceptive” statementsNew York rule also prohibits deceptive statements


13Nov. 9, 2010

WEBSITE – ADVERTISING OR INFORMATIONAL?

ABA Formal Opinion 10-457 - lawyer websites must comply with Model Rule 7.1

– Is website used for advertising or for informational/educational purposes?


14Nov. 9, 2010

MODEL RULE 7.2 - ADVERTISING

– Subject to Rules 7.1 and 7.3, lawyer may advertise services through electronic communication

– Communication must include name and officeCommunication must include name and office address of at least one lawyer or law firm responsible for its content


15Nov. 9, 2010

NEW YORK - ATTORNEY ADVERTISING Rules 1.0(a) & 7.1(a)

• Definition:– Public or private communication– By or on behalf of lawyer or firm– About lawyer or firm’s services

P i t ti– Primary purpose: retention• Prohibited from using or disseminating ads that

contain statements or claims that are falsecontain statements or claims that are false, deceptive or misleading


16Nov. 9, 2010

NEW YORK ATTORNEY ADVERTISINGNEW YORK ATTORNEY ADVERTISINGContent-based Restrictions (Rule 7.1(c))

• Outright bans held unconstitutional – Client testimonials re: pending matters: not inherently

misleading (unless suggest past results indicate futuremisleading (unless suggest past results indicate future performance)

– Portrayal of judges in ads: not per se false, deceptive or misleading (unless imply ability to improperly influence court)misleading (unless imply ability to improperly influence court)

– Gimmick type ads with attention grabbing features: not misleading (taste in ads is matter of subjective judgment)

(Alexander v Cahill 589 F 3d 79 (2d Cir 2010); pet cert 79(Alexander v. Cahill, 589 F.3d 79 (2d Cir. 2010); pet. cert., 79 USLW 3102 (Aug. 2010) (no. 10-203)).


17Nov. 9, 2010

NEW YORK ATTORNEY ADVERTISINGNEW YORK - ATTORNEY ADVERTISINGContent-based Restrictions (Rules 7.1(c) & 7.3(e))

• Outright bans held unconstitutional– Using nicknames, slogans, mottos, monikers

(“ )(“Heavy Hitters”), or trade names implying ability to obtain results: not inappropriate

• Two restrictions upheld:• Two restrictions upheld:– Portrayal of a fictitious law firm or use of fictitious

name (“Dream Team”) to refer to lawyers not associated together in firm: actually misleading

– 30-day moratorium on use of targeted ads to solicit certain accident victims


18Nov. 9, 2010

solicit certain accident victims

NEW YORK ATTORNEY ADVERTISINGNEW YORK - ATTORNEY ADVERTISINGPermissible Ad Content (Rule 7.1(d) & (e))

• Statements creating expectations about results lawyer can achieve

• Statements comparing one lawyer’s services with another• Statements comparing one lawyer s services with another• Statements describing quality of lawyer or firm’s services• Testimonials of former clientsConditions:• Not false, deceptive or misleading

F t ll t d b l fi• Factually supported by lawyer or firm• Disclaimer requirement:

“Prior results do not guarantee a similar outcome”


19Nov. 9, 2010

g

NEW YORK ATTORNEY ADVERTISINGNEW YORK - ATTORNEY ADVERTISINGMisleading Advertising

“I have never lost a case.”

-- Misleading if settled virtually all cases


20Nov. 9, 2010

NEW YORK - ATTORNEY ADVERTISINGNeed Disclaimer Even If True

“We have more patent lawyers than any other firm in X County ”in X County.-- Need disclaimer: “Prior results do not guarantee a similar outcome.”guarantee a similar outcome.-- Needs to be factually supported


21Nov. 9, 2010

ATTORNEY ADVERTISINGATTORNEY ADVERTISINGTrue Factual Statements: Misleading If Out of Context

“My average jury verdict for X year was $100,000.”

-- Misleading if average based on large number of small verdicts and one $10MM verdict

-- Needs to be factually supported


22Nov. 9, 2010

NEW YORK - ATTORNEY ADVERTISINGNEW YORK - ATTORNEY ADVERTISINGGeneral Descriptions, Not Claims About Quality: Not Likely to Misleady y

“Hard-working”Hard-working

-- No factual support requiredNo factual support required

“Dedicated”Dedicated

-- No factual support required


23Nov. 9, 2010

pp q

NEW YORK - ATTORNEY ADVERTISINGNEW YORK ATTORNEY ADVERTISINGStatements Comparing Legal Services Not Factually Supported: Misleadingy pp g

“Best”Best

“Most experienced”Most experienced

“H d t ki ”“Hardest working”


24Nov. 9, 2010

NEW YORK ATTORNEY ADVERTISINGNEW YORK - ATTORNEY ADVERTISINGExpectations About Results Not Susceptible of Being Factually Supported: Misleadingof Being Factually Supported: Misleading

“Big $$$”

“We win big”We win big


25Nov. 9, 2010

NEW YORK ATTORNEY ADVERTISINGNEW YORK - ATTORNEY ADVERTISINGPermissible Ad Content (Rule 7.1(a) & (b))

• Education, degrees/scholastic distinctions, bar admissions, areas of practice, public office, t hi iti l l bli ti bteaching positions, legal publications, bar association memberships

• Bona fide professional ratings• Bona fide professional ratings• Names of regularly represented clients with prior

written consentCondition:• Not false, deceptive or misleading


26Nov. 9, 2010

, p g

• D.C. Ethics Op. 302 (2000) – Don’t Bury It– when advertising on Internet websites, information

f fnecessary to prevent statement from being false or misleading should be readily available to visitors and not be buried in links several clicks removed from main pages


27Nov. 9, 2010

New York - Advertising – Labeling Requirements [Rule 7.1(f)]

• “Attorney Advertising” label on first page or home page of web site (other than in newspapers or TV) – Self-mailing brochures/postcards: must

l b llabel– E-mail: “ATTORNEY ADVERTISING” on

bj t lisubject line


28Nov. 9, 2010

New York - Advertising: Retention and Other Requirements [Rule 7.1(h) & (k)]

• Include name, principal office address and telephone number of lawyer or firm whose

i ff dservices offered• Retain 3 years after initial dissemination; 1 year if

computer-accessed communication; every 90computer-accessed communication; every 90 days if web site content (also preserve after initial publication, major re-design or meaningful/extensive content change)


29Nov. 9, 2010

DOMAIN NAMES

• Lawyer or firm ads must include name and office address of lawyer responsible for content– NYS Ethics Op. 756 (2002) – street address

required; website or email address not sufficientsufficient


30Nov. 9, 2010

NEW YORK - ATTORNEY ADVERTISINGDomain Name & Web Site Rules (Rule 7.5(e) & (f))

• May use a different domain name for Internet web site if:– All web site pages clearly/conspicuously show actual

name of lawyer/law firma e o a ye / a– No attempt to engage in practice of law using the

domain name– Domain name does not imply an ability to obtainDomain name does not imply an ability to obtain

results in a matter– Domain name does not violate ethics rules

May use telephone number containing domain name• May use telephone number containing domain name, nickname, moniker or motto that does not violate ethics rules


31Nov. 9, 2010

MODEL RULE 7.4 - COMMUNICATION OF FIELDS OF PRACTICE AND SPECIALIZATION

• Communicate fact that lawyer does/does not practice in partic lar field of lain particular field of law

• “Patent Attorney” permitted if admitted to USPTO • “Admiralty” or “Proctor in Admiralty” permittedAdmiralty or Proctor in Admiralty permitted

– Barred from stating/implying certified as specialist in particular field of law unless:

Certified as specialist by organization approved by• Certified as specialist by organization approved by proper state authority or accredited by ABA and

• Certifying organization’s name clearly identified


32Nov. 9, 2010

NEW YORK “SPECIALIST” RULES – Disclaimer Requirement

• If certified by pvt org approved by ABA: disclose it is not affiliated with govt. authority; certification

t i d t ti i NY & d ’t i di tnot required to practice in NY & doesn’t indicate greater competence than others in same field

• If certified by out of state authority: disclose it is• If certified by out of state authority: disclose it is not recognized by N.Y.S. govt. authority; certification not required to practice in NY & doesn’t indicate greater competence than others in same field


33Nov. 9, 2010

MODEL RULE 8.4 - MISCONDUCT

– It is professional misconduct for a lawyer to• Violate or attempt to violate the Rules of

Professional Conduct• Engage in conduct involving dishonesty, fraud,Engage in conduct involving dishonesty, fraud,

deceit or misrepresentation


34Nov. 9, 2010

MODEL RULE 4.1(A) - TRUTHFULNESS IN STATEMENTS TO OTHERS

In the course of representing client, lawyer must not knowingly:

• Make false statement of material fact or law to third person


35Nov. 9, 2010

DUTY OF CONFIDENTIALITY

– No disclosure or use of “information relating to frepresentation” without client’s informed consent

• Current clients – Model Rules 1.6 and 1.8(b)• Former clients – Model Rule 1 9(c)Former clients Model Rule 1.9(c)• Prospective clients – Model Rule 1.18• New York – no more “confidences and secrets”


36Nov. 9, 2010

CONFIDENTIAL INFORMATION ON WEBSITES

• ABA Formal Opinion 10-457: must obtain client consent before posting client information on websites:websites:– Specific information identifying current or

former clients or scope of matters may be disclosed with client or former clients’ informed consent, as required by rules. Website disclosure of client identifying information not y gnormally impliedly authorized as disclosure not for carrying out client representation but to promote lawyer or law firm


37Nov. 9, 2010

promote lawyer or law firm

MODEL RULES 5 1 AND 5 3 RESPONSIBILITIES OFMODEL RULES 5.1 AND 5.3 – RESPONSIBILITIES OF PARTNERS, MANAGERS AND SUPERVISORS RE: JUNIOR LAWYERS AND NONLAWYERS

• Reasonable efforts to ensure firm takes proper measures for attorney compliance with ethics rules

• Personal responsibility for ethics violation by subordinate lawyer if ordered/ratified or knew of conduct when it could be avoided/mitigated but failed to take reasonable remedial actionS b di t l b d b thi l if t d t• Subordinate lawyer bound by ethics rules even if acted at direction of another person (Model Rule 5.2)– Safe harbor: acting in accordance with supervisory lawyer’s

reasonable resolution of arguable question of professional dutyreasonable resolution of arguable question of professional duty• New York – law firms also have ethical responsibilities


38Nov. 9, 2010

IMPACT OF INTERNET’S ABILITYIMPACT OF INTERNET S ABILITY TO REACH PROSPECTIVE CLIENTS OUTSIDE OF ANCLIENTS OUTSIDE OF AN

ATTORNEY’S JURISDICTION


39Nov. 9, 2010

BORDERLESS INTERNET - BOUNDLESS ISSUES

• Potential client may access attorney information out of attorney’s state of licensure

• Attorney/firm website that complies with rules in state of lawyer’s admission could potentially violate laws of other states with stricter orviolate laws of other states with stricter or conflicting rules

• Different states different ethics rules


40Nov. 9, 2010

MODEL RULE 7.3 - DIRECT CONTACT WITH PROSPECTIVE CLIENTS

• Forbids solicitation of prospective client through real-time electronic exchange that is not initiated b ti li tby prospective client– Label “Advertising Material” at beginning and

ending of electronic communicationending of electronic communication• Some forms of direct Internet marketing may be

analogous to in-person or telephone solicitation• New York’s advertising rule includes labeling

requirement


41Nov. 9, 2010

NEW YORK - Solicitation Rule 7.3(b)

• An advertisement• By or on behalf of lawyer or firm• Directed to or targeted at specific recipients• Primary purpose: retention• Significant motive: pecuniary gain


42Nov. 9, 2010

NEW YORK SOLICITATION RULE 7.3(c) & (h) –FILING & RETENTION

• Include name, principal office address and telephone number of lawyer or firm

• File copy of solicitation with attorney disciplinary committeeRetain list of pre determined recipients for 3• Retain list of pre-determined recipients for 3 years after its dissemination

• Open to public inspectionOpen to public inspection


43Nov. 9, 2010

MODEL RULE 1.18 - DUTIES TO PROSPECTIVE CLIENTS

• Protects confidentiality of prospective client communications – Person who discusses possibility of forming client-lawyer

relationshipNY exceptions if person communicates information (1)– NY exceptions – if person communicates information (1) unilaterally to lawyer without reasonable expectation lawyer willing to discuss possibility of forming client-lawyer relationship or (2) to disqualify lawyer from handling materially adverse representation in substantially relatedmaterially adverse representation in substantially related matter

• Barred from use or disclosure of information learned in a discussion without prospect’s informed consent

• Test: is information significantly harmful to prospective client?• Imputed disqualification of entire firm if conflict of interest• Cure conflict with informed consent or ethical screen


44Nov. 9, 2010

MODEL RULE 5.5 - UNAUTHORIZED PRACTICE OF LAW

• Practice law only in a jurisdiction in which lawyer is authorized to practice.

• If no license to practice in a state• If no license to practice in a state– Can’t establish office or systematic/continuous presence in

the state for law practiceC ’t h ld t t bli t d itt d t ti l– Can’t hold out to public or represent admitted to practice law in the state

• Temporary legal services may be rendered out-of-state– Must meet certain conditions/requirements

• New York – no multijurisdictional practice rules adopted


45Nov. 9, 2010

*ATTENTION LAWYERS *

DON’T CROSS THE LINEDON T CROSS THE LINEWHEN YOU GO ONLINE


46Nov. 9, 2010

Questions?• Contact:

D ik K l i E• Devika Kewalramani, Esq.• Moses & Singer LLP• 405 Lexington Avenueg• New York, NY 10174-1299• Telephone: 212-554-7832• E-mail: dkewalramani@mosessinger com• E-mail: [email protected]

Disclaimer: This presentation does not constitute legal advice or an opinion of Moses & Singer LLP or any member of the firm. It does not create or invite an attorney-client relationship and may be rendered incorrect by future developments. It is recommended that it not be relied upon in connection with any dispute or other matter but that professional advice be sought.

Attorney Advertising: Under the laws, rules or regulations of certain jurisdictions, this presentation may be construed as an advertisement or solicitation.


47Nov. 9, 2010

Copyright © 2010 Moses & Singer LLP. All rights reserved.

P t 2 “Th Ch ll f R l t C li ”

Ethical RisksPart 2 –“The Challenge of Regulatory Compliance”

b d b ff d bl b A webinar presented by Strafford Publications November 9, 2010

B j i C ill A LBenjamin Cowgill Attorney at Lawwww.cowgill.comwww.cowgill.com [email protected] [email protected] 48

Practical ways to maintain regulatory compliance[O tli t “II B ”][Outline, part “II. B.”]

How to deal effectively with uncertainty and risk[Outline, part “II. C.”][Out e, pa t . C. ]

Recent developments in state rules[Outline, part “I. B.”]

How the Federal Trade Commission has “weighed in” on state regulatory activity[Outline part “II D ”][Outline, part II. D. ]

[email protected]@cowgill.com

An enhanced understanding of the legal terrain;

An ability to recognize potential compliance issues;

An awareness of how trouble can occur;

A few meaningful examples and illustrations;

d th and thus …

A more sophisticated appreciation of the issues which may warrant research and analysis in connection with may warrant research and analysis, in connection with your actual or contemplated online activities.


Advertising Marketinggmessages

gactivities

PersonalPersonalactivities and

communications


Advertising Marketinggmessages

gactivities

Personal This is:Personalactivities and

communications Where you need

to be!

Where you may


y yalso encounter the most trouble!

A patchwork of rules, even in adjacent states;

New modes of communication which don’t fit within f traditional concepts of “advertising” or “solicitation”;

Uncertainties about the proper application of prevailing l d ll t d i i lrules and generally-accepted principles;

Diverse (and possibly shifting) philosophies among state regulatory and disciplinary agencies;regulatory and disciplinary agencies;

… all of which creates the potential for a “perfect storm.”


1. Determine which state’s rules apply to the online communication

2. Determine what those rules permit and prohibit

3. Design the communication with the rules in mind

4. Include appropriate boilerplate and disclaimers

5. Look for ways to let the underlying technology do the work, while being careful about visible content [e g search engine optimization (SEO)][e.g., search engine optimization (SEO)]

6. Monitor and manage the living organism!


Which rules – if any – apply to a

Fi t t Whi h j i di ti ( ) d t b id d?

particular online communication?

First step: Which jurisdiction(s) need to be considered?

Second step: Which rules of the relevant jurisdiction(s) might apply?might apply?

Don’t begin with a general notion that a particular communication doesn’ttit t “ d ti t ” Y b i d t di th t it dconstitute an “advertisement.” You may be surprised to discover that it does

– after the fact – under the rules of a jurisdiction which are triggered by theactivity.


The content of the communication

Th di hi h i i di d The audience to which it is directed

The type of interaction it invites or produces

The place of delivery of any anticipated legal

servicesservices


The visible content of the communication is a primary concern of regulatory authoritiesprimary concern of regulatory authorities.

Does it include information about a lawyer’s professional activities or services?professional activities or services?

Does it include professional contact information?

Does it constitute a “quest for clients”?

Is it misleading or deceptive in any respect (including g p y p gits source and purpose, as well as content)


The target audience of the communication – and the audience it actually acquires may bear the audience it actually acquires – may bear heavily on which state’s rules are triggered.

D i id if i l j i di i ( Does it identify any particular jurisdictions (e.g., through state-specific “landing pages”?

D it di th l f ti l j i di ti ? Does it discuss the law of particular jurisdictions?

Does it contain appropriate notices and disclaimers di th j i di ti i hi h i b regarding the jurisdictions in which services can be

provided?


All forms of interaction by users (comments, online inquiries etc ) as suggested by the content and as inquiries, etc.) – as suggested by the content and as actually produced – may be deemed relevant to:

a) Whether the communication constitutes an advertisement, )under the rules of any relevant jurisdiction; and

b) How many state’s rules are triggered.

Questions to consider:

What happens in response to an online inquiry?

Do visitor comments or inquiries – and responses thereto –change the original character of the communication, converting it into an advertisement (e.g., comments to blog posts)?


A state’s advertising rules – and other rules – may be triggered by the fact that the communication contemplates the delivery of legal services within that contemplates the delivery of legal services within that jurisdiction – even if the “referral machinery” lies beneath the content of the message itself.

For example, does a law firm’s website contemplate the possibility of serving clients in other jurisdiction(s), through a standing co counsel arrangement or a through a standing co-counsel arrangement or a network of “affiliated” firms?


Read the advertising rules of every jurisdiction in which you practice;

Read any ethics opinions on advertising issues which have been issued in the same jurisdiction(s);

Get a handle on what your firm is already doing (possibly through others, acting on its behalf );

Review all of your online communications –f h i f i ff l from the perspective of an aggressive staff lawyer in an enforcement agency!


ABA Ethics Opinion 10-457 (8/5/10)

Discussion of ethical duty to avoid misleading communications through any form of online contentcontent

Discussion of ethical duty to avoid unintended attorney-client relationships through inquiriesattorney client relationships through inquiriesand responses


ABA Commission on Ethics 20/20 (the “Ethics 20/20 Commission”)20/20 Commission )

The Commission’s workgroups presently considering rules regarding:rules regarding:

Law firm ranking surveys

Online referral programs

Participation in blogging and discussion forumsp gg g

Blending personal communications with professional advertisingp g


New YorkAlexander v Cahill 2d Cir No 07 3677 cv (L) (3/12/10) Alexander v. Cahill, 2d Cir., No. 07-3677-cv (L), (3/12/10), rejected new prohibitions on:

Client endorsements and testimonials in pending Client endorsements and testimonials in pending matters

“Attention-getting” techniques Attention getting techniques

Nicknames, monikers and mottos that imply ability to get resultsto get results


ConnecticutZelotes v Rousseau Connecticut StatewideZelotes v. Rousseau, Connecticut Statewide Grievance Committee, No. 09-0412, (2/8/10):

A law firm’s participation in an internet-based A law firms participation in an internet-based marketing service (“Total Attorneys”), under which it acquires an exclusive right to referrals of prospective

li i hi hi l i f clients within a geographical area, in return for payment of a fee, does not violate:

State ethics rule against paying for State ethics rule against paying for recommendation; or

State anti-solicitation statuteState anti solicitation statute


Florida In re Amendments to the Rules Regulating the Florida Bar In re Amendments to the Rules Regulating the Florida Bar – Rule 4-76, Computer Accessed Communications,No. SC08-1181 (11/19/09)

Websites and other “computer-accessed communications” are subject to same rules as other

d i i fili iadvertising, except filing requirement

Removed language categorizing websites as “i f ti id d t ” hi h “information provided upon request,” which effectively exempted websites from many requirements


North Carolina North Carolina State Bar Ethics CommitteeNorth Carolina State Bar Ethics Committee, Formal Opinion 2009-6 (7/24/09):

A law firm website may “showcase” results achieved in A law firm website may showcase results achieved in particular (selected) cases, provided that it includes:

An appropriate disclaimer; and An appropriate disclaimer; and

Specific information about the factual and legal circumstances of each highlighted casecircumstances of each highlighted case


LouisianaLouisiana Bar Rules of Professional Conduct Committee Louisiana Bar Rules of Professional Conduct Committee, commenting on Louisiana’s new advertising rules:

Argues that blog entries should not be governed by Argues that blog entries should not be governed by most requirements of advertising rules, unless intended to advertise a lawyer’s services


Kentucky

Kentucky’s advertising rules do not treat individual blog entries as advertisements (and therefore exempt them from Kentucky’s special filing requirements) so them from Kentucky s special filing requirements), so long as the individual blog entries are informational in nature and do not expressly advertise the author’s

ipractice.


Thus far, most of the rulings and opinions regarding Facebook have addressed ethical aspects of using it:Facebook have addressed ethical aspects of using it: To acquire information about other persons involved in

litigation; and/or

To establish “friendships” which contradict arm’s-length relationships between judges, attorneys, jurors and witnesses.

Kentucky recently extended its “blog rule” to Facebook Kentucky recently extended its blog rule to Facebook and YouTube, applying the same model to individual posts as distinguished from static advertising content.

Under the rules of most states, Facebook pages and YouTube channels should be judged according to their content their content.


The FTC has occasionally “weighed in” on state advertising rules by submitting comments in opposition to provisions rules, by submitting comments in opposition to provisions which it considers to be anti-competitive. Examples include:

Negative comments on New York’s, New Jersey’s and Louisiana’s recently amended advertising rules, all as b i l i i dbeing overly restrictive; and

Comments to the Texas State Bar, urging Texas to i i i i i “ hi ” permit attorneys to participate in internet “matching”

services.


Benjamin CowgillBenjamin CowgillCounselor & Attorney at Law

P O Box 910387P. O. Box 910387Lexington, Kentucky 40591

(859) 225-5236

www.cowgill.com [email protected]

Practice concentrated in legal ethics, attorney advertising & marketing,and attorney & judicial disciplinary proceedings

Li d i i h C l h f K kLicensed to practice in the Commonwealth of Kentucky;co-counsel and consultant in other jurisdictions

72

attorney advertising via blogs, websites and social

Documents