TOOLS FOR A NEW TRADE: ADVERTISING IN THE INTERNET ERA

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1 TOOLS FOR A NEW TRADE: ADVERTISING IN THE INTERNET ERA Susanne A. Heckler * In the course of a decade, the Internet and social media have become commonplace both personally and professionally. Twitter, Instagram, Facebook, pop-up ads social media s reach is endless. This presents challenges for lawyers working in the Internet era. Is it appropriate to post a status suggesting people contact one s firm if they find themselves in legal trouble? Can a lawyer chat on Facebook with a prospective client? Does a lawyer violate the Rules of Professional Conduct if she offers discounted consultations online? The Internet and its uses are ever evolving, but the ethical rules are slow to form. A quick Google search of legal advertising and the Internet reveals that nationwide states struggle with drafting professional rules on this type of advertising. Is it possible to create an intelligible rule for proper online legal advertising? Or is it, as Justice Potter Stewart once famously said, a matter of I know it when I see it. 1 This essay discusses how the existing rules apply to online advertising and proposes amending the current Indiana Rules of Professional Conduct to address some unique concerns the Internet creates. Heckler 1

2 At the outset, it is important to note that the First Amendment protects a lawyer s right to advertise. 2 Nevertheless, legal advertising must conform to each state s adopted Rules of Professional Conduct to ensure advertising is performed in a truthful, accurate, and dignified manner. 3 In incorporating additional provisions on advertising to the professional rules, drafters must be mindful that too much regulation may butt up against a lawyer s constitutionally protected First Amendment rights. Other state s professional rules on advertising have met their demise this way. New York, for example, had several of its 2007 amended rules struck down in Alexander v. Cahill, 598 F.3d 79 (2d Cir. 2010). 4 Likewise, Louisiana s amendments were struck down for violating the First Amendment in Public Citizens Inc. v. Louisiana Attorney Disciplinary Bd., 632 F.3d 212 (5th Cir. 2011). 5 And Florida s most recent amendments have been challenged on a First Amendment basis. 6 The professional rules must strive to strike a balance between the rights of lawyers to advertise and the rights of citizens to accurate and truthful information. It is through that lens that Indiana s existing advertising rules and any potential amendments must be considered. CURRENT APPLICABLE RULES Heckler 2

3 In Indiana, attorney advertising means any manner of public communication partly or entirely intended or expected to promote the purchase or use of the professional services of a lawyer, law firm, or any employee of either involving the practice of law or law-related services. 7 While this definition of advertising includes a variety of communications, some of Indiana s current professional rules explicitly address online communication. 1. Rule 7.3 Rule 7.3(a) provides that a lawyer (including the lawyer s employee or agent) shall not by in-person, live telephone, or real-time electronic contact solicit professional employment from a prospective client when a significant motive for the lawyer s doing so is the lawyer s pecuniary gain. Real-time electronic contact would include Facebook messaging, Google chat, or any other messaging device where an attorney communicates in real-time with a client with the intention to solicit business. But Rule 7.3(a) creates an exception. If a lawyer directly contacts another lawyer or a person that has a family, close personal, or prior professional relationship with the lawyer, the rule is not violated. Consider an attorney who messages a Facebook friend who just posted on Facebook that his bathroom contractor failed to finish his Heckler 3

4 bathroom as promised. In the attorney s message she tells her Facebook friend that she can help him get reimbursed from his bathroom contractor. This attorney would be violating Rule 7.3 unless she can show a close personal or prior professional relationship exists. Indiana s current rules, however, do not explain what is considered a close personal relationship for the purposes of social media. Rule 7.3(c) also expressly states that every written, recorded, or electronic communication from a lawyer soliciting professional employment from a prospective client potentially in need of legal services in a particular matter must include the words Advertising Material. For electronic communication, these words must appear at the beginning and at the end of the communication. This rule must be strictly followed. 8 While Rule 7.3 explicitly discusses electronic communication, other Rules of Professional Conduct implicitly relate to online advertising. 2. Rule 5.5 As In re Rocchio, 943 N.E.2d 797 (Ind. 2011) illustrates, Rule 5.5 also applies to online advertising. Rule 5.5(a) states, An attorney shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so. Under Rule 5.5(b)(2), a lawyer who is not admitted to practice in the jurisdiction of Heckler 4

5 Indiana shall not... hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction. Rocchio was licensed in both Michigan and Indiana to practice law. Rocchio s two websites indicated that he was licensed in both states. However, what he failed to mention was that his Indiana license was inactive. The Indiana Supreme Court found that this violated Rule 5.5(b) as the websites held out to the public that he could practice law in Indiana when in fact he could not. 9 Any advertising information, especially regarding one s license status, must be up to date or an attorney risks violating the rule. 3. Rule 7.1 Similarly, Rule 7.1 applies to online advertising. This rule prohibits lawyers from making a false or misleading communication about the lawyer or the lawyer s services. It defines a communication as false or misleading if it contains a material misrepresentation of fact, law, or omits a fact necessary to make the statement considered as a whole not materially misleading. Any online advertisements cannot include a material misrepresentation or false or misleading information. This applies to a Facebook status, a Twitter post, or any other Internet advertising mechanism. Consider an attorney who created a Facebook page for her family law practice. On her wall a person posts a comment Heckler 5

6 indicating that this attorney is the best attorney in town for all family law related matters and that she works hard for her clients. The post appears to be from a client, but, in reality, the attorney s paralegal submitted the comment on her wall. This would violate Rule 7.1 as it misleads the public into thinking that clients have had positive experiences working with that attorney. A recent example of a lawyer violating Rule 7.1 in online advertising can be found in In re Anonymous, 6 N.E.3d 903 (Ind. 2014). In this case, a local firm used American Association of Motorcycle Injury Lawyers, Inc. s national website to advertise its own services. Part of the website had examples of consumer reviews and their results including statements like, The settlement was more than expected! The Indiana Supreme Court found that using these testimonials violated Rule 7.1 as the average consumer could not make a distinction between the attorney and the assertions made on the nationally operated website. 10 Moreover, the website s proclamation that our motorcycle accident attorneys have helped thousands of motorcycle accident victims and their families financially recover from devastating motorcycle injuries violated Rule 7.1 comment [2](8) as it created an unjustified expectation about a lawyer or law firm or a person s legal rights. 11 Heckler 6

7 5. Rule 7.4 Under Rule 7.4, a lawyer may communicate fields of law that she does or does not practice, but may not state or imply that she is a specialist unless certified by an Independent Certifying Organization accredited by the Indiana Commission for Continuing Legal Education. Take, for instance, a lawyer with a website for her solo practice focusing primarily on Social Security cases. Her website indicates that she specializes in Social Security administrative law. 12 Such a representation would be improper. Though the attorney would be able to communicate on her website that she primarily practices Social Security administrative law, she would only be able to indicate a specialization if an accredited Independent Certifying Organization certified her. This rule also would relate to domain names for legal websites and meta-tags, which are hidden computer software codes that direct certain Internet search engines to the website of a lawyer or law firm. If a personal injury lawyer places the meta-tag Personal Injury Specialist on its website, a person typing Personal Injury Specialist into any search engine would be directed to the personal injury lawyer s page. However, if the personal injury lawyer was not certified as a specialist, it would violate the Rule. 13 Similarly, a personal injury lawyer using the domain Heckler 7

8 name without being certified would violate the Rule. Indiana s Rule 7.4, however, fails to address these internet-specific ethical challenges for advertising. 6. Rule 7.5 Rule 7.5 only permits attorneys to use a firm name, letterhead, or professional designation if it is not false or misleading. An attorney may state that she practices in a partnership or organization only if she does. Law firms with offices in more than one jurisdiction must identify the attorneys located in a particular office to indicate jurisdictional limitations. For example, a firm with locations in Indiana and Illinois creates a Facebook account. But the Facebook account fails to indicate where the firm is located and does not identify attorneys in each office location. This would violate Rule 7.5. Instead, the firm should note that it has offices located in Illinois and Indiana and include the attorneys practicing in each office. At a minimum, the firm should indicate where prospective clients can locate that information. AMENDING INDIANA S RULES OF PROFESSIONAL CONDUCT Indiana s current rules address a variety of challenges that arise with electronic advertising. For instance, Rule 7.1 and 7.3(c) sufficiently explain that any communication cannot be untruthful or misleading and Heckler 8

9 must be designated as Advertising Material if disseminated to an unsolicited prospective client. But, there are additional provisions that would better address some of the concerns of advertising that are unique to the Internet. 1. Defining close personal relationship One particular issue in Internet advertising is the ability to communicate in real-time through Google chat, Facebook, or any other real-time messaging device. Rule 7.3 prohibits real-time electronic communication between an attorney and a client, but includes an exception for people that have a close personal relationship with the attorney. In a day in age where people have hundreds of friends on Facebook and social communication often occurs online, the notion of what is considered a close personal relationship is gray. Would a close personal relationship exist between a lawyer and a person who often like or comment on one another s Facebook statuses? What if an attorney and a person Google chat with one another every day or merely on occasion? Indiana s Rules of Professional Conduct provide no guidance as to what is considered a close personal relationship on social media. Heckler 9

10 Including a provision in Rule 7.3 s comments would further clarify what would constitute a close personal relationship for the purpose of solicitation on the Internet: [4] There is far less likelihood that a lawyer would engage in abusive practices against an individual who is a former client, or with whom the lawyer has a close personal or family relationship. For the purposes of Rule 7.3, a close personal relationship includes a person with whom an attorney has had meaningful, consistent, and sustaining contact such that the lawyer is motivated by considerations other than a lawyer s pecuniary gain. 14 Even if an attorney comments or likes a prospective client s Facebook posts regularly, she would have to show that she and the prospective client have had meaningful, consistent, and sustained contact so that she is motivated by considerations other than pecuniary gain. Meaningful contact would mean that the relationship consists of more than merely liking one another s posts. Consistent and sustained contact requires an attorney establish the relationship over a long period of time. Such language provides guidance to the attorney on what social media relationships fall under Rule 7.3 s exception. Moreover, this definition protects the spirit of Rule 7.3 and ensures that social media does not dilute the definition of a close personal relationship. 2. Regulating online discounted or fixed fee offers Heckler 10

11 As it currently stands, Indiana s professional rules have no applicable provision for advertised fixed fee or discounted offers. If a lawyer wants to provide a fixed fee for certain services and advertise it online, she should have the opportunity to do so and the guidance to do it properly. States like New York and Arizona include a provision in its rules that permits lawyers to advertise fixed fees so long as the lawyer consistently charges the fixed fee for the particular service during the relevant time period. In addition, the lawyer must provide a public description of the fixed fee and the services to which the fixed fee applies. 15 Because discounted fee offers relate to advertising fees, any amendment should be incorporated to Rule 7.2 as subsection (d): (d) A lawyer or law firm advertising a discounted or fixed fee through electronic communication, mail advertising, or any electronic form shall include the fee rate or the hourly rate, the services to which the discounted hourly rate or fee applies, and the relevant time period to which the rate applies. The lawyer must clearly describe the services to which the rate applies and make that information available to the public. 16 Like New York s rule governing discounted and fixed fee rates, Rule 7.2(d) would require a lawyer to describe in a public statement the services to which the rate applies. In doing so, a prospective client knows Heckler 11

12 the extent to which any fixed fee rate applies to an attorney s services, and the attorney can promote her services in compliance with the professional rules. 3. Including a meta-tag and domain name provision Indiana should incorporate a meta-tag and domain name provision under Rule 7.4. Just as an attorney may not advertise that she is a specialist in a particular area of law without a certification, an attorney may not alter the search function code to suggest that she is a specialist in an area of law in which she is not certified. Indiana s professional rules do not address this concern unique to online advertising. As such, Rule 7.4(d) should be amended to address specialization in a search function or domain name: (d) A lawyer shall not state or imply that the lawyer is a specialist in a particular field of law, including any use of meta-tags, domain names, and other online advertising functions, unless: (1) The lawyer has been certified as a specialist by an Independent Certifying Organization accredited by the Indiana Commission for Continuing Legal Education pursuant to Admission and Discipline Rule 30; and, (2) The certifying organization is identified in the communication. Heckler 12

13 The comment section should also include an explanation of metatag so that attorneys understand how their search function may violate the professional rules of conduct. The comment should provide an example of how using particular domain names can also violate Rule 7.4. Such language should be included as Rule 7.4 comment [3]: [3] Paragraph (d) recognizes the ways in which lawyers communicate their skills. If a lawyer employs meta-tags or other hidden computer codes, so that certain Internet search engines direct potential clients to the websites of a lawyer or law firm, it must not violate Rule 7.4. So a lawyer that places a meta-tag Indiana employment law specialist on the lawyer or firm s website without being certified by an Independent Certifying Organization would be violating Rule 7.4(d). Also, if a lawyer uses the domain name without being certified by an Indiana Certifying Organization, the lawyer would violate Rule 7.4. Domain names and meta-tags that do not violate the rules are permitted. 17 This language explains the function of a meta-tag and domain name. It explicitly notes how the use of such Internet functions could violate the Rule 7.4. In including this explanation and provision, lawyers may better understand how ethical obligations in Internet advertising transcend their websites to include search engine functions and website properties. Amending Rule 7.4 will provide a more thorough and updated approach to Indiana s specialization provision. 4. Pre-approval and Continuing Legal Education Heckler 13

14 Arming attorneys with the tools to ethically advertise online does not end with a handful of amendments to the professional rules. It also includes creating an advertising committee so that lawyers have an opportunity to see if their advertisements comply with the rules before it is disseminated to the public. 18 Indiana should follow the footsteps of other states that have created such committees. Kentucky, for instance, created an Attorney Advertising Commission. Attorneys submit potential advertising to the Commission, and if the advertisement conforms to Kentucky s professional rules, the Commission approves the advertisement, free of charge. If, however, the advertisement fails to comply with Kentucky s advertising rules, the Commission will reject the rule and the attorney must pay a fee. 19 Texas also has an advertising review committee that provides advisory opinions to attorneys seeking review of their advertising material. The Advertising Review Committee reviews the advertisement thirty days before it is to be disseminated. If the advertisement does not conform to Texas professional rules, the Advertising Review Committee will not use this noncompliance as evidence against an attorney in any future disciplinary proceeding. If an attorney complies with the rules, her Heckler 14

15 compliance can be used as admissible evidence in any future disciplinary proceeding. 20 An Indiana pre-approval board should consist of three to five elected attorneys from the Indiana State Bar Association s Legal Ethics Committee and other bar members that exemplify professional responsibility. The board should meet either on a bi-weekly or monthly basis to review potential advertising material. Attorneys should submit their advertising material to the board thirty days prior to dissemination for the board to review. 21 If the board finds that the advertisement conforms to the rules, then the material may be disseminated. If the board finds that the advertisement violates the rules, then the board will inform the attorney of the rule the advertisement violates and fine the attorney $50.00 or some other reasonable amount. 22 Upon revising, the attorney must then resubmit the advertisement for further review. Any violation will not lead to a disciplinary proceeding and will not be used against the attorney in any future disciplinary proceeding. If an advertisement complies with the rules, then that compliance may be used as evidence in any future disciplinary proceeding. A new provision to Rule 7.3 should be adopted to create the board: Heckler 15

16 7.3(d) A pre-approval board may preview a lawyer s advertising material if it is submitted to the board thirty days (30) before dissemination. Advertising material conforming to the rules may then be publically disseminated. If the pre-approval board finds that the material does not conform to the rules, the lawyer will be subject to a fine in the amount of fifty dollars ($50.00) payable to the Supreme Court of Disciplinary Commission Fund. The lawyer must then resubmit a revised copy of the material thirty days (30) before dissemination for approval. Any finding of noncompliance will not result in a disciplinary proceeding and may not be used as evidence in any future disciplinary proceedings. Moreover, the Indiana Rules for Admission to the Bar and Discipline of Attorneys should also be amended to require one hour of continuing legal education in advertising. Currently, Indiana s mandatory continuing legal education requires three hours of professional responsibility. The remaining thirty-three hours are flexible. 23 As part of the remaining thirty-three hours, Indiana s continuing legal education provision should be amended to include the following phrase: (a)... At least three (33) hours of Approved Courses in professional responsibility and one hour (1) of Approved Courses in advertising shall be included within the hours of continuing legal education required during each three (3) year period. Having attorneys attend a one-hour session on advertising every three years would give them an opportunity to discuss ethical issues arising specifically in advertising and would better prepare lawyers to avoid common mistakes in creating advertisements. Heckler 16

17 CONCLUSION The ways in which people communicate are constantly changing, and the professional rules must adapt to these new methods of communication. As it stands, the Indiana Professional Rules of Conduct discuss a variety of electronic communications and advertising; however, the rules do not address special challenges attorneys face in the Internet era. Amending Rules 7.2, 7.3, and 7.4 will better guide attorneys on how to advertise on the Internet. However, reform does not end with professional rules. Creating an advertising committee so attorneys have an opportunity to have their advertising material pre-approved would go a long way in ensuring compliance without disciplinary action. As would requiring an hour of continuing legal education in advertising. These proposed reforms to the professional rules and continuing legal education program would provide lawyers with the tools necessary to ethically and effectively advertise online and would create a comprehensive message on what Internet advertising Indiana permits. Ethical advertising should not be a guessing game for attorneys, and these amendments give attorneys the guidance they need to successfully promote their businesses. Heckler 17

18 * Susanne A. Heckler serves as law clerk to the Honorable Magistrate Judge Tim A. Baker, U.S. District Court, Southern District of Indiana. She graduated magna cum laude from Valparaiso University Law School and earned her undergraduate degree in International Affairs and Environmental Studies from the University of Colorado at Boulder. The views expressed in this essay are solely those of the author. 1 Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (J. Stewart concurring). 2 Bates v. State Bar of Arizona, 433 U.S. 350 (1977). 3 3 IND. LAW ENCYC. ATTORNEY AND CLIENT 6. 4 The Second Circuit found New York s professional rule that prohibited the use of a client testimonial when the matter was still pending violated the First Amendment. Moreover, prohibiting judge portrayals also violated the First Amendment. Any rule prohibiting nicknames, mottos, or trade names that imply the attorney has the ability to obtain results in a matter also violated the First Amendment. 5 The Fifth Circuit found professional rules prohibiting communications that contained truthful or non-deceptive testimonials on past successes violated the First Amendment. A rule prohibiting the portrayal of a judge or jury violated the First Amendment as well. Rules dictating font size and speed of speech used in disclaimers and that also required a written and spoken disclaimer for televised or written advertisements violated the First Amendment. 6 See Complaint, Searcy v. The Florida Bar, No. 4:13-cv-0064 (N.D. Fla. Dec. 11, 2013), available at 7 IND. PROF. CONDUCT R. 7.2(a). 8 The Indiana Supreme Court has held that using the words Legal Advertising violates Rule 7.3(c), and lawyers should only use the phrase Advertising Material. While the court found that the violation was inadvertent, the phrase legal advertising could create the impression Heckler 18

19 that the Disciplinary Commission or some other body reviewed the material and found it to be legal. In re Benkie, 892 N.E.2d 1237, 1240 (Ind. 2008). 9 The Indiana Supreme Court also noted that normally a violation under Rule 5.5 and Rule 7.2 (for using statistical data in such a way that may result in an unjustified expectation or prediction for future success) would result in a sanction in the lowest range under the disciplinary rules. However, Rocchio s inappropriate conduct during the disciplinary proceedings led to suspension without automatic reinstatement. While Rocchio s conduct is outside the scope of this essay, the case certainly provides an excellent example of the type of language and decorum that is inappropriate in a disciplinary proceeding. See generally In re Rocchio, 943 N.E.2d 797 (Ind. 2011) (suspending an attorney s license without automatic reinstatement because of his violation of the professional rules and his conduct during the disciplinary proceedings). 10 In re Anonymous, 6 N.E.3d 903, 905 (Ind. 2014). 11 Id. at The same would be true if a lawyer claimed he was a personal injury specialist or an estate specialist, absent a certification from the independent certifying organization. See Matter of Anonymous, 689 N.E.2d 434 (Ind. 1997) (prohibiting an attorney from holding himself out as specializing in personal injury cases when he was not a certified specialist); Matter of Foster, 630 N.E.2d 562 (Ind. 1994) (violating Rule 7.4 by advertising that the lawyer was an estate specialist without being certified as such). Lawyers must also be wary of including on their social media profiles (i.e. LinkedIn) a specialty, unless they have been certified as such. 13 New York s Rule of Professional Conduct 7.1(g) prohibits the use of a meta-tag that would violate the professional rules. As New York s Rule 7.1(g) comment [14] explains, [I]f a lawyer places the meta-tag NY personal injury specialist on the lawyer s web site, then a person who enters the search term NY personal injury specialist into a search engine will be directed to that lawyer s web page. That particular meta-tag is Heckler 19

20 prohibited because Rule 7.4(a) generally prohibits the use of the word specialist. New York, however, permits meta-tags that do not violate the professional rules. 14 Proposed amendments are italicized. 15 N.Y. RULES OF PROF. CONDUCT R. 7.1(l) [22 NYCRR ]; 17A A.R.S. SUP. CT. RULES, RULE 42, RULES OF PROF. CONDUCT, E.R 7.2(d). New York s Professional Rules of Conduct, for example, state that a lawyer advertising a range of fees or an hourly rate for services cannot charge more than the fee advertised for such services during the relevant time period. Any fixed fee rate must describe in a written statement the services to which the fee rate applies. And that statement must be available to the public. N.Y. RULES OF PROF. CONDUCT R. 7.1(l) [22 NYCRR ]. Likewise, Arizona includes a provision permitting fixed fees for specific routine legal services, but any specific fee will be honored up to ninety days, unless the advertisement specifies a shorter period. 17A A.R.S. SUP. CT. RULES, RULE 42, RULES OF PROF. CONDUCT, E.R 7.2(d)(4). 16 This language is based off of New York s Professional Rule 7.2(l). 17 This language is based off of New York s comment explaining the purpose of a meta-tag. See N.Y. RULES OF PROF. CONDUCT R. 7.1 cmt. [14] [22 NYCRR ]. 18 As Dave Stafford reported in the Indiana Lawyer, attorneys find the advertising regulations unclear or unevenly enforced and they receive little guidance to avoid running afoul with the rules. The article suggests a pre-approval board could assist attorneys in understanding how to appropriately apply the rules at hand. See Dave Stafford, What can you say?, 25 IND. LAW., no. 6, May 21, 2014, at 1. While some might see a preapprovals board as stifling, others would appreciate the guidance. Making the option available to attorneys would at least permit attorneys that want the extra guidance a way to receive it. 19 Id. 20 TEX. DISCIPLINARY R. PROF. CONDUCT 7.07(d). Heckler 20

21 21 Creating a voluntary procedure avoids any First Amendment prior restraint challenge. 22 The board should create a simple form to attach to any advertisements that violate the professional rules so that the attorney is aware of the type of violations contained in her advertisement. The form should include the date, a copy of the nonconforming advertisement, and designate the rule that the advertisement violates, along with a short explanation. For example, if the attorney from In re Rocchio submitted the content of his website for review, the board would send him a return form finding that his advertisement did not comply with the professional rules. Rule 5.5 would be checked off from the list of professional rules with a short explanation that he erroneously included that he can practice law in Indiana, which represents to the public that he can practice law here. By giving attorneys feedback, they will learn how to better comply with the rules in any future advertisements. 23 IND. ADMISSION TO THE BAR AND DISCIPLINE OF ATTORNEYS R. 29 3(a). Heckler 21