Lawyer Ethics: E-Communications, Social Media, and … · Young Lawyers Division LAWYER ETHICS: E-COMMUNICATIONS, SOCIAL MEDIA, AND THE INTERNET (PART 2) Presented by the American

LAWYER ETHICS: E-COMMUNICATIONS, SOCIAL

MEDIA, AND THE INTERNET (PART 2)

Presented by the

American Bar Association Section of Litigation, Law Practice Division, Center for Professional Responsibility, Solo, Small Firm and General Practice Division, Forum on Communications Law, Young Lawyers Division and Center for Professional Development

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Nothing contained in this book is to be considered as the rendering of legal advice for specific cases, and readers are responsible for obtaining such advice from their own legal counsel. This book and any forms and agreements herein are intended for educational and informational purposes only. © 2017 American Bar Association. All rights reserved. This publication accompanies the audio program entitled “Lawyer Ethics: E-Communications, Social Media, and the Internet (Part 2)” broadcast on August 24, 2017 (event code: CE1708LEE).

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TABLE OF CONTENTS

1. Presentation Slides 2. Lawyer Ethics: E-Communications, Social Media, and the Internet (Part II) John M. Barkett

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www.americanbar.org | www.abacle.org

Lawyer Ethics:E-Communications, Social Media, and the Internet

(Part 2)

Thursday, August 24, 2017 | 1:00 PM EasternSponsored by the ABA Section of Litigation, Law Practice Division, Center for Professional

Responsibility, Solo, Small Firm and General Practice Division, Forum on Communications Law, Young Lawyers Division, and the ABA Center for Professional Development

Lawyer Ethics: E-Communications, Social Media and the Internet (Part II)

Hope Todd, Associate Director for Legal Ethics, & Regulation Counsel, District of Columbia Bar

John M. BarkettSho0k, Hardy & Bacon LLP

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Hypo #8Testimonials on Websites Devoted to Lawyer Evaluations

A lawyer registers in Avvo, a website devoted to obtaining user evaluations of lawyers. The lawyer calls some of her client contacts who have also become friends and asks them to go on to Avvo to rate her. They do—with glowing testimonials about the lawyer’s skills and tenacity. The state bar discovers the testimonials and directs the lawyers to unsubscribe from Avvo. The lawyer is willing to do so, but Avvo refuses to remove the lawyer’s name or the resulting lawyer evaluations.

Do these facts create ethical jeopardy for the lawyer?

3

Questions:

▪ Do the rules governing lawyer advertising apply?

▪ Are there First Amendment concerns that supersede the advertising rules?

▪ Let's change the facts. A lawyer offers clients a $50 credit if the client writes an Avvo review of the lawyer’s services. Any issues here?

4

ABA Model 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.

5

ABA Model Rule 7.2 - Advertising

(a) Subject to the requirements of Rules 7.1 and 7.3, a lawyer may advertise services through written, recorded or electronic communication, including public media.

(b) A lawyer shall not give anything of value to a person for recommending the lawyer's services except that a lawyer may

(1) pay the reasonable costs of advertisements or communications permitted by this Rule

6

ABA Model Rule 7.3 – Solicitation of Client(a) A lawyer shall not by in-person, live telephone or real-time electronic contact solicit professional employment when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain, unless the person contacted:

(1) is a lawyer; or

(2) has a family, close personal, or prior professional relationship with the lawyer.

(b) A lawyer shall not solicit professional employment by written, recorded or electronic communication or by in-person, telephone or real-time electronic contact even when not otherwise prohibited by paragraph (a), if:

(1) the target of the solicitation has made known to the lawyer a desire not to be solicited by the lawyer; or

(2) the solicitation involves coercion, duress or harassment.

(c) Every written, recorded or electronic communication from a lawyer soliciting professional employment from anyone known to be in need of legal services in a particular matter shall include the words "Advertising Material" on the outside envelope, if any, and at the beginning and ending of any recorded or electronic communication, unless the recipient of the communication is a person specified in paragraphs (a)(1) or (a)(2).

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ABA Model Rule 7.4 – Communication of Fields of Practice & Specialization

(a) A lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law.

(d) A lawyer shall not state or imply that a lawyer is certified as a specialist in a particular field of law unless:

(1) the lawyer has been certified as a specialist by an organization that has been approved by an appropriate state authority or that has been accredited by the American Bar Association; and

(2) the name of the certifying organization is clearly identified in the communication.

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Florida Bar Advertising Standing Committee on Advertising Guidelines for Networking Sites – Third Party Testimonials

The Guidelines insulate the lawyer from responsibility for information about the lawyer posted by a third party as long as the lawyer did not prompt the posting and for information on a page not controlled by the lawyer:

▪ A lawyer “is not responsible for information posted on the lawyer’s page by a third party, unless the lawyer prompts the third party to post the information or the lawyer uses the third party to circumvent the lawyer advertising rules.”

▪ “If a third party posts information on the lawyer’s page about the lawyer’s services that does not comply with the lawyer advertising rules, the lawyer must remove the information from the lawyer’s page.”

▪ “If the lawyer becomes aware that a third party has posted information about the lawyer’s services on a page not controlled by the lawyer that does not comply with the lawyer advertising rules, the lawyer should ask the third party to remove the non-complying information. In such a situation, however, the lawyer is not responsible if the third party does not comply with the lawyer’s request.”

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New York State Bar LEO 1052 (2015)

Approved a lawyer’s plan to give a $50 credit to a client for rating the lawyer on a site like Avvo:

A lawyer may give clients a $50 credit on their legal bills if they rate the lawyer on an Internet website such as Avvo that allows clients to evaluate their lawyers, provided the credit against the lawyer’s bill is not contingent on the content of the rating, the client is not coerced or compelled to rate the lawyer, and the ratings and reviews are done by the clients and not by the lawyer.

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Hypo #9Responding to Negative Online Reviews

A former client posts a negative review of a lawyer’s capabilities on LinkedIn after a defense verdict in the former client’s claim for personal injuries resulting from an automobile accident. The lawyer is quite upset by the review and wishes to write a response.

What ethical advice would you give the lawyer?

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Questions:

▪ Does Model Rule 1.6, addressing a lawyer’s obligation to maintain confidentiality, provide an avenue to respond?

▪ If the lawyer makes a response, are there any ground rules the lawyer should follow?

▪ What if the reviewer is another lawyer and not the client? Suppose the other lawyer writes a blog and criticizes another member of the Bar on the blog? May the other lawyer do so ethically?

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ABA Model Rule 1.6 – Confidentiality of Information

(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).

(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client;

(c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.

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Comment [10] to ABA Model Rule 1.6

Where a legal claim or disciplinary charge alleges complicity of the lawyer in a client's conduct or other misconduct of the lawyer involving representation of the client, the lawyer may respond to the extent the lawyer reasonably believes necessary to establish a defense. The same is true with respect to a claim involving the conduct or representation of a former client. Such a charge can arise in a civil, criminal, disciplinary or other proceeding and can be based on a wrong allegedly committed by the lawyer against the client or on a wrong alleged by a third person, for example, a person claiming to have been defrauded by the lawyer and client acting together. The lawyer's right to respond arises when an assertion of such complicity has been made. Paragraph (b)(5) does not require the lawyer to await the commencement of an action or proceeding that charges such complicity, so that the defense may be established by responding directly to a third party who has made such an assertion. The right to defend also applies, of course, where a proceeding has been commenced.

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In Re Tsamis, Joint Stipulation and Recommendation ¶¶4-10 & Reprimand ¶ 1, No. 2013PR00095 (ARDC 2014)

The matter involved retention of the lawyer to obtain unemployment benefits. The Illinois Department of Employment Security rejected the claim presented by the lawyer. Her client then terminated her. Her former client then posted a review on Avvo expressing his dissatisfaction with her legal services. The lawyer contacted her former client and asked him to remove the posting. He refused to do so unless he received a copy of his files and a refund of the $1,500 fee he had paid the lawyer. Instead, apparently acting on its own, Avvo removed the online review. But then the former client posted a second negative review on Avvo. The lawyer responded to the post and revealed confidential information about the case. The joint stipulation concluding the matter stated that the lawyer’s reply “exceeded what was necessary to respond” to the former client’s accusations.

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In re Kristine Anne Peshek, M.R. 23794, 2009 PR 00089 (Ill. May 18, 2010)

The Illinois Supreme Court allowed a petition on consent to suspend Ms. Peshek for 60 days for violating IRPC 1.6 by writing a blog that contained information about conversations with clients in her role as a public defender in Winnebago County for 19 years. She did not have informed consent to make the disclosures. More specifically, the ABA Journal reported in an online posting dated Sept. 10, 2009, the following: “Kristine Anne Peshek has been accused of revealing client confidences, allegedly for describing her clients in a way that made it possible to identify them. Peshek referred to her clients by either their first names, a derivative of their first names, or by their jail identification numbers, according to the disciplinary complaint filed on Aug. 25.”

Note: Rule 1.6’s protection of client-confidential information goes beyond privileged information and includes even information otherwise in the public domain.

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District of Columbia RPC 1.6 – Confidentiality of Information

(a) Except when permitted under paragraph (c), (d), or (e), a lawyer shall not knowingly:

(1) reveal a confidence or secret of the lawyer’s client;(2) use a confidence or secret of the lawyer’s client to the disadvantage of the client;(3) use a confidence or secret of the lawyer’s client for the advantage of the lawyer or of a third person.

(e) A lawyer may use or reveal client confidences or secrets:(1) with the informed consent of the client;(3) to the extent reasonably necessary to establish a defense to a criminal charge, disciplinary charge, or civil claim, formally instituted against the lawyer, based upon conduct in which the client was involved, or to the extent reasonably necessary to respond to specific allegations by the client concerning the lawyer’s representation of the client.

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New York RPC 1.6: Confidentiality of Information(a) A lawyer shall not knowingly reveal confidential information, as defined in this Rule, or use such information to the disadvantage of a client or for the advantage of the lawyer or a third person, unless:

(1) The client gives informed consent, as defined in Rule 1.0(j);

(2) The disclosure is impliedly authorized to advance the best interests of the client and is either reasonable under the circumstances or customary in the professional community; or

(3) The disclosure is permitted by paragraph (b).

(b) A lawyer may reveal or use confidential information to the extent that the lawyer reasonably believes necessary:

(5) (i) to defend the lawyer or the lawyer’s employees and associates against an accusation of wrongful conduct.

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A Comparison of RPC 1.6: Confidentiality of Information

A lawyer may reveal or use confidential information to the extent that the lawyer reasonably believes necessary:

Illinois and Model Rule: “to respond to allegations in any proceeding concerning the lawyer’s representation of the client.”

District of Columbia: “to the extent reasonably necessary to respond to specific allegations by the client concerning the lawyer’s representation of the client.”

New York: “to defend the lawyer or the lawyer’s employees and associates against an accusation of wrongful conduct.”

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Pennsylvania Bar Formal Opinion 2014-200

Rule 1.6 is the same as Illinois and the Model Rule ( “to respond to allegations in any proceeding concerning the lawyer’s representation of the client”)

The opinion limits the lawyer’s response to a negative online review and suggests this reply:

“A lawyer's duty to keep client confidences has few exceptions and in an abundance of caution I do not feel at liberty to respond in a point-by-point fashion in this forum. Suffice it to say that I do not believe that the post presents a fair and accurate picture of the events.”

New York State Bar Opinion 1032 (2014) is in accord. D.C. Bar Opinion 370 (November 2016) relying on the different text in D.C. RPC 1.6 allows lawyers to respond to specific allegations but not to reveal client confidences or secrets in doing so.

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ABA Model Rule 5.1 – Responsibilities of a Partner or Supervisory Lawyer

(c) A lawyer shall be responsible for another lawyer's violation of the Rules of Professional Conduct if:

(1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved…

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ABA Model Rule 5.3 – Responsibilities Regarding Nonlawyer Assistance

With respect to a nonlawyer employed or retained by or associated with a lawyer:

(a) a partner, and a lawyer who individually or together with other lawyers possesses the comparable managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person’s conduct is compatible with the professional obligations of the lawyer.

(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer; and

(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:

(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or

(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

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In re Horace Frazier Hunter, (Aug. 30, 2013)

The Virginia Supreme Court determined that a lawyer had a First Amendment right to publish in a blog information not protected by the attorney-client privilege without obtaining consent of the client. Where the information did not relate to a pending proceeding and was public information (and would have been protected by the First Amendment if a media outlet had published the information), Rule 1.6 could not overcome the protection provided to the lawyer by the First Amendment.

“To the extent that the information is aired in a public forum, privacy considerations must yield to First Amendment protections. In that respect, a lawyer is no more prohibited than any other citizen from reporting what transpired in the courtroom.”

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People v. Isaac, 2016 Colo. Discipl. LEXIS 109 (Colo. Sept. 22, 2016)

A hearing board presided over by a member of the Colorado Supreme Court suspended a lawyer for six months, among other sanctions, for revealing information relating to the representation of a former client in a response to a negative online review. The opinion acknowledges Hunter but holds that under Colorado RPC 1.6, information relating to the representation that has become public still does not relieve the lawyer of the duty of confidentiality.

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Hypo #10 Tweeting for Clients

You prepare press releases on your recent successes as a lawyer. You send tweets to potential clients alert them about the press releases.

What ethical issues, if any, to you see by this practice?

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Questions:

▪ Are the tweets “advertising”?

▪ Are the tweets “solicitations”?

▪ What is the impact of Twitter’s 140-character limit in the analysis?

▪ Let’s change the facts. Does membership in LinkedIn constitute advertising?

▪ Let’s change the facts again. Suppose the lawyer is in an Internet chat room and a legal question is asked of the lawyer?

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Tweeting for Clients – Ethics Opinions/Guidelines

New York State Bar LEO 1009 (2014): Tweets are advertising but not solicitations.

Missouri Bar Informal Opinion 2009-0040 (only summaries of these opinions are provided): Tweeting for clients is solicitation and Twitter’s 140 character limit does not allow for Missouri disclaimer language.

Florida Bar Standing Committee on Advertising’s “Guidelines for Networking Sites” (May 9, 2016): Tweets are advertising and lawyers can abbreviate advertising requirements to fit within 140-character limit.

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LinkedIn Ethics Opinions/Guidelines

New York County Lawyer’s Association Opinion 748 (March 10, 2015): Attorneys may maintain profiles on LinkedIn, containing information such as education, work history, areas of practice, skills, and recommendations written by other LinkedIn users. A LinkedIn profile that contains only one’s education and current and past employment does not constitute Attorney Advertising. If an attorney includes additional information in his or her profile, such as a description of areas of practice or certain skills or endorsements, the profile may be considered Attorney Advertising, and should contain the disclaimers set forth in Rule 7.1. Categorizing certain information under the heading ‘Skills’ or ‘Endorsements’ does not, however, constitute a claim to be a ‘Specialist’ under Rule 7.4, and is accordingly not barred, provided that the information is truthful and accurate.

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New York City Bar LEO 2015-7 (2015): Mere membership on LinkedIn is not advertising or solicitation because the primary purpose of membership may not be to attract clients. Subjective intent controls (but the opinion does not say how this intent is to be shown). If the primary purpose is to gain clients, the advertising rules apply to the lawyer’s LinkedIn page.

NOTE: Unlike the Model Rules which are silent, NY’s RPC define advertisement “as any public or private communication made by or on behalf of a lawyer or law firm about the lawyer or law firm’s services, the primary purpose of which is for the retention of the lawyer or law firm.”

Disagrees with NY County Law Assn. Opinion 748: “[Its] conclusion focuses exclusively on the content of a LinkedIn profile, and ignores the other factors that must be considered in determining whether a communication is an “advertisement,” such as the primary purpose of the communication and the intended audience.”

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Florida Bar Standing Committee on Advertising’s “Guidelines for Networking Sites” (May 9, 2016): “Pages appearing on networking sites that are used to promote the lawyer or law firm’s practice are subject to the lawyer advertising rules.” (Does this beg the question?)

30

Chat Room Conversation

Florida Bar’s Standing Committee on Advertising’s Advisory Opinion A-00-1 (January 29, 2016):

The Board believes that the most likely type of question to which a lawyer will want to respond is one involving a specific legal issue, such as “I just received a speeding ticket -what should I do?” or “I have heard that I can avoid probate if I have a trust - is that true?” The Board cautions lawyers that they may inadvertently form a lawyer-client relationship with a person by responding to specific legal inquiries, which will require that a lawyer comply with all Rules of Professional Conduct, including rules regarding conflicts of interest, confidentiality, competence, diligence, and avoiding engaging in the unlicensed practice of law. See, e.g., Florida Ethics Opinion 00-4. Although interpretation of these rules is outside the scope of an advisory advertising opinion, the Board feels obligated to point out that lawyers who engage in discussions in chat rooms may have other ethical obligations, regardless of whether the lawyer’s communications are permissible under the lawyer advertising rules.

31


New York State Bar LEO 899 (2011):

A lawyer “may provide general answers to legal questions from laymen on real-time or interactive Internet sites such as chat rooms, but the lawyer may not engage in ‘solicitation’ in violation of Rule 7.3. If a person initiates a request on the site to retain the lawyer, the lawyer may respond with a private written proposal outside the site so that those who did not request it cannot see it.”

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D. C. Bar LEO 370 (Nov. 2016):

As we opined in Opinion 316, it is permissible for lawyers to participate in online chat rooms and similar arrangements through which attorneys could engage in real time, or nearly real time communications with internet users. However, that permission was caveated with the caution to avoid the provision of specific legal advice in order to prevent the formation of an attorney-client relationship. In Opinion 302, we provided "best practices" guidance on internet communications, with the intent of avoiding the inadvertent formation of an attorney-client relationship. One of the suggested "best practices" included the use of a prominent disclaimer. Id. However, we have reiterated "that even the use of a disclaimer may not prevent the formation of an attorney-client relationship if the parties' subsequent conduct is inconsistent with the disclaimer." D.C. Ethics Op. 316.

These same principles are applicable to the use of social media. Disclaimers are advisable on social media sites, especially if the lawyer is posting legal content or if the lawyer may be engaged in sending or receiving messages from "friends," whether those friends are other attorneys, family or unknown visitors to the lawyer's social media page, when those messages relate, or may relate, to legal issues.

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ISBA Advisory Opinion on Professional Conduct 96-10

The Committee does not believe that merely posting general comments on a bulletin board or chat room should be considered solicitation. However, if a lawyer seeks to initiate an unrequested contact with a specific person or group as a result of participation in a bulletin board or chat group, then the lawyer would be subject to the requirements of Rule 4-7.3. For example, if the lawyer sends unrequested electronic messages (including messages in response to inquiries posted in chat groups) to a targeted person or group, the messages should be plainly identified as advertising material.

Note: Opinions differ. Michigan, West Virginia, Utah, and Virginia opinions say chat room solicitations are prohibited direct solicitations. A West Virginia opinion appears to agree. The City of Philadelphia Bar and Florida Bar are consistent with the Illinois Bar’s position that they are not prohibited direct solicitations but instead are permissible but must comply with advertising rules.

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Hypo #11 Blogging

You write a popular legal blog. It has been a great source of work for you in your trial practice. You have an upcoming jury trial and write a blog piece describing the allegations of the complaint and the answer and identifying the issues to be tried.

Are there any ethical issues?

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Questions:

▪ Do the rules governing lawyer advertising apply?

▪ Can a blog post become a solicitation?

▪ Will the blog posting potentially impact a jury pool (M.R. 3.6)

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Blogging Ethics Opinions/Guidelines

New York State Bar LEO 967 (2013): Lawyer blog on work-life balance issues is not advertising.

New York State Bar LEO 1o39 (2014): Blog that enlisted subscribers by offering a written report on copyrights was not advertising or a solicitation, but when lawyer later contacted subscribers to solicit business, the advertising and solicitation rules apply.

D.C. Bar LEO 370 (Nov. 2016): Requires compliance with 1.6, suggests that informed consent of clients may be required depending upon the blog post, requires a disclaimer about future results in posts about a lawyer’s own cases, reminders lawyers that the supervision rules are applicable; and concludes that all social media postings for law firms or lawyers, including blogs, “should contain disclaimers and privacy statements sufficient to convey to prospective clients and visitors that the social media posts are not intended to convey legal advice and do not create an attorney-client relationship.”

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California’s State Bar LEO 2016-96:

1. Blogging by an attorney may be a communication subject to the advertising requirements“ if the blog expresses the attorney’s availability for professional employment directly through words of invitation or offer to provide legal services, or implicitly through its description of the type and character of legal services offered by the attorney, detailed descriptions of case results, or both.”

2. “A blog that is an integrated part of an attorney’s or law firm’s professional website will be a communication subject to the rules and statutes regulating attorney advertising to the same extent as the website of which it is a part.”

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California’s State Bar LEO 2016-96:

3. A stand-alone blog by an attorney, even if discussing legal topics within or outside the authoring attorney’s area of practice, is not a communication subject to the advertising requirements” unless the blog directly or implicitly expresses the attorney’s availability for professional employment.”

4. A stand-alone blog by an attorney on a non-legal topic is not a communication subject to the rules and statutes regulating attorney advertising, and will not become subject thereto simply because the blog contains a link to the attorney or law firm’s professional website. However, extensive and/or detailed professional identification information announcing the attorney’s availability for professional employment will itself be a communication subject to the rules and statutes.

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In re Horace Frazier Hunter, VSB Docket No. 11-032-084907 (Aug. 30, 2013)

The Virginia Supreme Court agreed that the lawyer’s blog about his courtroom successes was advertising that had to comply with Virginia RPCs regarding advertising, rejecting on the facts a First Amendment argument that political speech was in issue or that, as commercial speech, the blog postings were still protected by the First Amendment.

The Virginia Supreme Court then held that the Virginia Bar satisfied Central Hudson’s four-part test because the blog posts had the potential to be misleading and there is a substantial governmental interest in protecting consumers from believing that they might get similar results if Hunter was engaged as counsel, the requirement to post a disclaimer that past results do not guarantee future results advances the governmental interest, and the disclaimer requirement was no more restrictive than was necessary. Thus, as applied, the court held that the requirements in Virginia RPC 7.1 and 7.2 did not violate the First Amendment.

40

Hypo #12Lawyer Interactions on Social Networking Site

You monitor LinkedIn regularly. A person you exchanged business cards with once, shoots you a message describing a set of facts without mentioning any names and asks whether you think there is a viable claim. You respond, “Yes.”

Are there any ethics concerns here?

41

Questions:

▪ Has the lawyer forgotten about clearing conflicts of interest! (M.R. 1.7)

▪ What does it take to establish an attorney-client relationship?

▪ If the discussion continues with the questioner beware of Model Rule 1.18. Are there limitations on your use of information learned from a prospective client?

▪ And Model Rule 4.3 must be considered, or should it?

▪ Is it a solicitation?

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ABA Model Rule 1.7 – Conflict of Interest: Current Clients

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

1) the representation of one client will be directly adverse to another client…

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ABA Model Rule 1.8 – Conflict of Interest – Current Clients: Specific Rules

(f) A lawyer shall not accept compensation for representing a client from one other than the client unless:

(1) the client gives informed consent;

(2) there is no interference with the lawyer's independence of professional judgment or with the client-lawyer relationship; and

(3) information relating to representation of a client is protected as required by Rule 1.6.

44

ABA Model Rule 1.18 – Duties to Prospective Client(b) Even when no client-lawyer relationship ensues, a lawyer who has learned information from a prospective client shall not use or reveal that information, except as Rule 1.9 would permit with respect to information of a former client.

(c) A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d). If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d).

(d) When the lawyer has received disqualifying information as defined in paragraph (c), representation is permissible if:

(1) both the affected client and the prospective client have given informed consent, confirmed in writing, or:

(2) the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; and

(i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and

(ii) written notice is promptly given to the prospective client.

45

Model Rule 4.3 Dealing With Unrepresented Person

In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.

46

NYSBA Ethics Opinion 899 (2011)

A lawyer “may provide general answers to legal questions from laymen on real-time or interactive Internet sites such as chat rooms, but the lawyer may not engage in ‘solicitation’ in violation of Rule 7.3. If a person initiates a request on the site to retain the lawyer, the lawyer may respond with a private written proposal outside the site so that those who did not request it cannot see it.”

47

D.C. Bar Ethics Opinion 370 (2016)


48

D.C. Bar Ethics Opinion 370 (2016)


49

Uber-Like Attorney Websites

South Carolina L.E.O. 11-05: The use of “daily deal” websites to sell vouchers to be redeemed for discounted legal services does not violate the Rule 5.4(a) prohibition on sharing of legal fees, but the attorney is cautioned that the use of such websites must be in compliance with Rules 7.1 and 7.2 and could lead to violations of several other rules if logistical issues are not appropriately addressed.

South Carolina L.E.O. 16-06: Payment of a marketing fee to lawyer referral service (Avvo was the service but it was not mentioned by name in the opinion) represents a sharing of legal fees in violation of South Carolina RPC 5.4(a).

50


New York State Bar Association 1132 (Aug. 8, 2017): Payment of a marketing fee to Avvo under Avvo’s lawyer referral service violates New York RPC 7.2(a):

Rule 7.2(a) provides: “A lawyer shall not compensate or give anything of value to a person or organization to recommend or obtain employment by a client, or as a reward for having made a recommendation resulting in employment by a client.”

“We believe Avvo’s advertising of its ratings, in combination with its statements about the high qualifications of lawyers who participate in Avvo Legal Services, constitutes a recommendation of all of the participating lawyers.”

51


New York State Bar Association L.E.O. 1131 (Aug. 8, 2017): In contract with NYSBA L.E.O. 1131, payment of fee by lawyer to for-profit web-based lawyer referral service does not violate N.Y. RPC 7.2(a).

Conditions were imposed: “(i) the lawyer who contacts the potential client has been selected by transparent and mechanical methods that do not purport to be based on an analysis of the potential client’s legal problem or the qualifications of the selected lawyer to handle that problem; (ii) the service does not explicitly or implicitly recommend any lawyer, and (iii) the website of the service complies with the requirements of Rule 7.1.”

52

Hypo #13 Crowdfunding of Legal Fees on a Claim

A lawyer solicits contributions on a crowdfunding site to pay the legal fees in an action the lawyer plans to bring on behalf of an indigent client against a governmental entity. The funds would be paid directly to the lawyer.

Is this ethically permissible?

53

Questions:

▪ Who holds the money and does it matter?

▪ When can funds be disbursed?

▪ Is there the potential for a nonrefundable retainer issue?

▪ Can the lawyer withdraw?

▪ May a lawyer be paid by other than the client?

▪ What must, or should, the client be told?

54

Questions (cont’d):

▪ If there is a fee-shifting statute involved and the lawyer prevails, who keeps the money?

▪ Is there an “unreasonable” fee issues under Model Rule 1.5(a)?

▪ Are there any Model Rule 1.6 issues lurking here?

▪ What about Model Rules 4.1, 7.1 and 8.4(c)? Do they have any application?

▪ Is there division of fee concern under Model Rule 5.4?

▪ Instead of crowdfunding, suppose the lawyer was on “Uber for lawyers” (Avvo); is there a division of fee issue?

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Crowdfunding

City of Philadelphia Bar LEO 2015-6:

1. A lawyer may be paid a fee by other than the client. “There is no reason to think that by raising funds from a crowdsourcing site, the lawyer's duty of loyalty and independent judgment to this client would be compromised.” As long as client-confidential information is not disclosed and the client gives informed consent, the lawyer could proceed.

2. Rule 1.6 must be satisfied. “Care should be taken, of course, to keep information revealed about the client and the matter to the minimum necessary to achieve the purpose.”

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Crowdfunding


3. An excessive fee under Pennsylvania RPC 1.5 is impermissible. ”It cannot be known how much may be raised; and the course of the representation is by no means certain. The litigation could end quickly, either favorably or not; before the litigation's end the inquirer may seek to withdraw or the client may wish to discharge him; or the inquirer may or may not succeed in seeking the payment of fees and expenses under an applicable fee shifting statute. Thus, just to give one example, if the matter ends quickly with relatively few hours of work expended, the retention of the entire amount raised on the crowdfunding site may produce an effective hourly rate that is extremely high. Without knowing how much was raised, it would therefore be difficult to determine whether or not the fee would be clearly excessive. Add the fact that the inquirer has asked the client to assign any award of attorney's fees to the inquirer, the possibility of a clearly excessive fee is truly an issue.”

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Crowdfunding


4. Because the proposed fee agreement permitted the lawyer to keep all funds raised as “earned immediately upon receipt,” the lawyer has established a “de facto non-refundable retainer, even though the actual amount is unknown.” Such retainers are not per se prohibited in Pennsylvania but if the amount funded is large, the retainer agreement “may place a meaningful limitation on the client’s ability to discharge the lawyer” if the client “is dissatisfied with the lawyer’s performance or simply chooses to change counsel without cause.” “Similarly, unless the arrangement also includes a promise to represent the client through to the conclusion of the matter, assuming the client wishes the lawyer to, it also could be a clearly excessive arrangement.” As a result, the Committee concluded that if the arrangement allows the lawyer to keep whatever funds are raised without any other undertakings, the arrangement “is improper.”

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Crowdfunding

City of Philadelphia Bar LEO 2015-6. Suggested terms:

1. The fee arrangement “should include terms which describe the lawyer's obligations including the lawyer's obligation to remain in the case, assuming the client wishes him to do so, until its conclusion or until some other point at which retention of the total fees paid would not constitute an excessive fee.

2. The arrangement “should require that the amount raised be placed in a trust account established under Rule 1.15 until those amounts are earned in accordance with the terms of the final fee agreement. Until such time that it is determined that the fee is actually earned, the monies raised constitute Rule 1.15 funds and should be held separate from the lawyer's own property.”

3. Consistent with M.R. 4.1 (truthfulness to others), “it is important to make sure that those who contribute to the crowdfunding not feel that they have been misled in any way.”

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Crowdfunding

Pennsylvania State Bar LEO 2016-003: Addressing in part raising capital to start a firm:

▪ The lawyer must be mindful of Pennsylvania RPC 5.4(a) which prohibits a lawyer from sharing fees with a nonlawyer;

▪ The lawyer must also be aware of Rule 5.4(d)(1), which prohibits a lawyer from practicing with or in the form of a professional corporation or association authorized to practice law if a nonlawyer has any ownership interest in the business. “The opinion stated that any arrangement that offers donor equity or a specific dollar return on the donor’s investment would not comport with Rule 5.4; however, a campaign that exchanges donations for gratitude or discounted legal fees would not run afoul of the rules.”

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Crowdfunding

New York State LEO 1062 (June 29, 2015): The opinion addressed two law school graduates who wanted to use crowdfunding to raise capital to start a new law firm:

“If the law firm provided royalties to donors or equity in the firm, there would be Rule 5.4 violations: The royalty model contemplates the investor receiving a percentage of revenues, and would therefore violate Rule 5.4(a) (‘A lawyer shall not share legal fees with a nonlawyer’). Similarly, the equity model violates Rule 5.4(d) (lawyer shall not practice law in a for-profit entity if a non-lawyer owns any interest therein.).”

Opinion 1062 does state that the lawyer may be able to offer “rewards” to donors in the form of informational pamphlets or reports on the progress of the firm but they had to abide by advertising rules. Another “reward”—offering pro bono services to a non-profit organization—prompted the ethics committee to note that a lawyer has to be competent to handle a matter (Model Rule 1.1 and New York RPC 1.1(b) and a lawyer may not accept a matter that creates a conflict of interest under New York RPC 1.7 or 1.9 (Model Rules 1.7 and 1.9)

61

THANK YOU!

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www.americanbar.org | www.abacle.org

Questions?All attendees can submit questions via the chat

feature on the webinar interface

ABA Model Rule 1.0 - Terminology

(e) "Informed consent" denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.

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ABA Model Rule 1.2 - Scope of Representation & Allocation of Authority Between Client & Lawyer

(a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.

(c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.

(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

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ABA Model Rule 1.3 - Diligence

A lawyer shall act with reasonable diligence and promptness in representing a client.

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ABA Model Rule 1.4 – Communication

(a) A lawyer shall:

(4) promptly comply with reasonable requests for information; and

(5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

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ABA Model Rule 1.5 - Fees(a) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following:

(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;

(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;

(3) the fee customarily charged in the locality for similar legal services;

(4) the amount involved and the results obtained;

(5) the time limitations imposed by the client or by the circumstances;

(6) the nature and length of the professional relationship with the client;

(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and

(8) whether the fee is fixed or contingent.

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ABA Model Rule 1.7 – Conflict of Interest: Current Clients

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

1) the representation of one client will be directly adverse to another client

Comment [13]: A lawyer may be paid from a source other than the client, including a co-client, if the client is informed of that fact and consents and the arrangement does not compromise the lawyer's duty of loyalty or independent judgment to the client. See Rule 1.8(f). If acceptance of the payment from any other source presents a significant risk that the lawyer's representation of the client will be materially limited by the lawyer's own interest in accommodating the person paying the lawyer's fee or by the lawyer's responsibilities to a payer who is also a co-client, then the lawyer must comply with the requirements of paragraph (b) before accepting the representation, including determining whether the conflict is consentable and, if so, that the client has adequate information about the material risks of the representation.

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ABA Model Rule 1.9 – Duties to Former Clients

(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:

(1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or

(2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.

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ABA Model Rule 2.1 - Advisor

In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation.

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Comment [4] to ABA Model Rule 5.3

Where the client directs the selection of a particular nonlawyer service provider outside the firm, the lawyer ordinarily should agree with the client concerning the allocation of responsibility for monitoring as between the client and the lawyer. See Rule 1.2. When making such an allocation in a matter pending before a tribunal, lawyers and parties may have additional obligations that are a matter of law beyond the scope of these Rules.

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ABA Model Rule 5.4 – Professional Independence of a Lawyer

(a) A lawyer or law firm shall not share legal fees with a nonlawyer

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ABA Model Rule 8.3 – Reporting Professional Misconduct

(a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.

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ABA Formal Opinion No. 462 – Judge’s Use of Electronic Social Networking Media

A judge may participate in electronic social networking, but as with all social relationships and contacts, a judge must comply with relevant provisions of the Code of Judicial Conduct and avoid any conduct that would undermine the judge’s independence, integrity, or impartiality, or create an appearance of impropriety.

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815971 v1 1 Copyright John M. Barkett 2017

Lawyer Ethics: E-Communications, Social Media, and the Internet (Part II)

John M. Barkett

Shook, Hardy & Bacon L.L.P.

Miami, Florida

Introduction ......................................................................................................................................................... 3

Technology Amendments to the Model Rules: Competence, Confidentiality and Outsourcing .................. 4

Other Ethics Rules With Application to Technology and Social Media Issues ............................................. 6

Testimonials on Websites Devoted to Lawyer Evaluations ............................................................................. 8

Hypothetical No. 8 ........................................................................................................................................... 8

Model Rules 7.1 – 7.4 on Advertising.............................................................................................................. 8

Advertising as Commercial Speech ............................................................................................................... 10

Court Decisions on Lawyer Advertising Rules .............................................................................................. 13

Discussion of Hypothetical No. 8 .................................................................................................................. 17

Responses to a Negative Online Review .......................................................................................................... 23

Hypothetical No. 9 ......................................................................................................................................... 23

Discussion of Hypothetical No. 9 .................................................................................................................. 23

Tweeting for Clients .......................................................................................................................................... 34

Hypothetical No. 10 ....................................................................................................................................... 34

Discussion of Hypothetical No. 10 ................................................................................................................ 34

Twitter ......................................................................................................................................................... 34

LinkedIn ...................................................................................................................................................... 36

Internet Chat Rooms ................................................................................................................................... 43

Blogging ............................................................................................................................................................. 45

Hypothetical No. 11 ....................................................................................................................................... 45


Lawyer Interactions on Social Networking Site ............................................................................................. 49

Hypothetical No. 12 ....................................................................................................................................... 49


Uber-Like Attorney Websites ........................................................................................................................ 53

Crowdfunding of Legal Fees on a Claim ........................................................................................................ 58


Hypothetical No. 13 ....................................................................................................................................... 58


Conclusion ......................................................................................................................................................... 63

About the Author .............................................................................................................................................. 65


Lawyer Ethics: E-Communications, Social Media, and the Internet (Part II)

John M. Barkett

Shook, Hardy & Bacon L.L.P.

Miami, Florida

INTRODUCTION E-communications, social media, and, more broadly, the Internet, have presented lawyers with new ethical challenges. In part I of this paper, I presented seven hypotheticals that present some of these challenges. In part II of this paper, I present six additional hypothetical scenarios. Lest you think you will be left on your own to figure them out, I also provide an ethical analysis of each. The analyses focus primarily on application of the ABA Model Rules of Professional Conduct.1 However, because of lawyers’ multijurisdictional practices,2 one should always study the rules of any state where the lawyer may be providing legal services on a temporary basis since that jurisdiction will also have disciplinary authority over the lawyer.3 Hence, in several of the analyses, I also discuss state bar ethics opinions and state rules of professional conduct (RPC), which may deviate from the analog Model Rule.4

1 The Model Rules can be found at: http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/model_rules_of_p

rofessional_conduct_table_of_contents.html. 2 See Model Rule 5.5(c): “A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in

any jurisdiction, may provide legal services on a temporary basis in this jurisdiction that: (1) are undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who actively participates in the matter; (2) are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction, if the lawyer, or a person the lawyer is assisting, is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized; (3) are in or reasonably related to a pending or potential arbitration, mediation, or other alternative resolution proceeding in this or another jurisdiction, if the services arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice and are not services for which the forum requires pro hac vice admission; or (4) are not within paragraphs (c) (2) or (c)(3) and arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice.”

3 See Model Rule 8.5(a): “A lawyer not admitted in this jurisdiction is also subject to the disciplinary authority of this jurisdiction if the lawyer provides or offers to provide any legal services in this jurisdiction. A lawyer may be subject to the disciplinary authority of both this jurisdiction and another jurisdiction for the same conduct.” The District of Columbia Bar’s Ethics Opinion 370 (November 2016), https://www.dcbar.org/bar-resources/legal-ethics/opinions/Ethics-Opinion-370.cfm (last visited Feb. 3, 2017), makes the point expressly that lawyers need to be mindful of the ethical limits of their conduct wherever they practice: “Lawyers must be aware of the ethical rules regarding social media in the principal jurisdiction where they practice, consistent with Rule 8.5. However, adherence to the ethical rules in the jurisdiction of one's principal practice may not insulate an attorney from discipline. There is considerable variation in choice of law rules across jurisdictions. We specifically wish to caution lawyers that the disciplinary rules of other jurisdictions, including our neighboring jurisdictions of Maryland and Virginia, allow for the imposition of discipline upon attorneys who are not admitted in that jurisdiction, if the lawyer provides or offers to provide any legal services in the jurisdiction. ABA Model Rule 8.5(b)(2) provides a limited safe harbor to this provision, by stating that ‘[a] lawyer shall not be subject to discipline if the lawyer's conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect of the lawyer's conduct will occur.’ We note, however, that not every state has adopted this safe harbor.”

4 The Model Rules are utilized in 49 states. California is the exception. Some states have adopted the Model Rules verbatim. Other states have modified some of the Model Rules, particularly with respect to advertising rules.


But before introducing the hypotheticals, I review the 2012 “technology amendments” to the Model Rules.

TECHNOLOGY AMENDMENTS TO THE MODEL RULES: COMPETENCE, CONFIDENTIALITY AND OUTSOURCING The ABA Commission on Ethics 20/20 was formed to consider changes to the Model Rules of Professional Conduct with an eye in part on the intersection of lawyers’ conduct and advances in technology.5 In August 2012, the ABA House of Delegates approved the Commission’s resolution on “technology and confidentiality” amending the Model Rules. These changes are slowly being incorporated into state RPC.

One of the amendments relates specifically to a lawyer’s duty to provide competent representation. Model Rule 1.1 states: “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Comment [6] to Rule 1.1 addressing competence now includes the following highlighted clause: “[6] To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.”6 This provision will require lawyers to better understand any advances in technology that genuinely relate to competent performance of the lawyer’s duties to a client.

Model Rule 1.6 imposes on lawyers the duty to treat client information in a confidential manner. Rule 1.6(a) states: “A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).”7 Laptops, thumb drives, anti-hacking security tools, search technology, use of social media, among others, are related to protecting client-confidential information from inadvertent disclosure. A change to Model Rule 1.6, addressing confidentiality of information, addresses this topic. Model Rule 1.6 now contains new subparagraph (c): “(c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.”

Another amendment is potentially significant where a client selects a vendor and exercises control over the vendor’s work.

Model Rule 5.3 provides:

With respect to a nonlawyer employed or retained by or associated with a lawyer:

(a) a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm shall make reasonable efforts to ensure that

5 See http://www.americanbar.org/groups/professional_responsibility/aba_commission_on_ethics_20_20.html. 6 See West Virginia Legal Ethics Opinion 2015-02: “In order to comply with Rule 1.1 of the Rules of Professional Conduct, attorneys

should both have an understanding of how social media and social networking websites function, as well as be equipped to advise their clients about various issues they may encounter as a result of their use of social media and social networking sites.” http://mcle.mywsba.org/IO/print.aspx?ID=1681.

7 Under Model Rule 1.0(e), informed consent denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”


the firm has in effect measures giving reasonable assurance that the person’s conduct is compatible with the professional obligations of the lawyer;

(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer; and

(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:

(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or

(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

Comment [4] to Model Rule 5.3 now addresses the client’s (as opposed to the lawyer’s) selection of the nonlawyer service provider. Invoking Model Rule 1.2,8 it explains that where the client picks the third-party service provider, “the lawyer ordinarily should agree with the client concerning the allocation of responsibility for monitoring as between the client and the lawyer.”9 In a report accompanying these changes to Model Rule 5.3, the Commission wrote that, “In such situations, the lawyer ordinarily should consult with the client to determine how the outsourcing arrangement should be structured and who will be responsible for monitoring the performance of the nonlawyer services.”

The use of the word “monitoring” is new to the Model Rules. The Commission explained:

The Commission concluded that [monitoring] was needed because, when a nonlawyer outside the firm is performing services in connection with a matter, it may not be possible to “directly supervise” the nonlawyer. The word “monitoring” makes clear that there is nevertheless a need to remain aware of how nonlawyer services are being perform[ed]. The Comment explains that, when the client directs the lawyer to use a particular nonlawyer, the lawyer and client should ordinarily agree who will have this “monitoring” responsibility. In contrast, if the client has not directed the selection of the nonlawyer, the lawyer or law firm would have the “monitoring” responsibility.

8 Model Rule 1.2(a) provides that a lawyer “shall abide by a client’s decisions concerning the objectives of representation” and, as

required by Model Rule 1.4, “shall consult with the client as to the means by which they are to be pursued.” A lawyer can limit the scope of the representation “if the limitation is reasonable under the circumstances and the client gives informed consent.” Model Rule 1.2(c). Under Model Rule 1.2(d), “A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.”

9 New Comment [4] also states when a client and the lawyer allocate responsibility for monitoring the nonlawyer vendor, “lawyers and parties may have additional obligations that are a matter of law beyond the scope of these Rules.” In a separate report, the Commission explained this text “is intended to remind lawyers that they may have duties to a tribunal that are not necessarily satisfied through compliance with the Rules of Professional Conduct. For example, if a client instructs the lawyer to hire a particular electronic discovery vendor, the lawyer cannot cede all monitoring responsibility to the client, given that the lawyer may have to make certain representations to a tribunal regarding the vendor’s work.”


In litigation at least, it seems unlikely that a lawyer would use the services of a third-party vendor and not be intimately involved in monitoring the work and work product of the vendor, especially in light of obligations placed on lawyers to properly manage discovery in litigation.10

What is the likely consequence of these amendments? Within the ambit of reasonableness, lawyers will not be able to ignore advancements in search technology and must put themselves in a position to have an understanding of what technology works best in what situations and with what limitations, either on their own or through consultants. Lawyers must also have a good grasp of what risks exist in the use of the Internet, and in particular, social media, not only by them, but also by their clients.

OTHER ETHICS RULES WITH APPLICATION TO TECHNOLOGY AND SOCIAL MEDIA ISSUES Other ethics rules have been implicated in ethics opinions in the Internet world. I remind readers of some of them before looking at examples of their application.

Model Rule 1.3 requires a lawyer to act with “reasonable diligence” in representing a client.

Model Rule 1.4(a)(4) provides that a lawyer “shall” “promptly comply with reasonable requests for information” from a client. Model Rule 1.4(a)(5) adds that a lawyer shall “consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.” Model Rule 1.4(b) provides: “A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”

Model Rule 1.15(a) provides:

A lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property. Funds shall be kept in a separate account maintained in the state where the lawyer’s office is situated, or elsewhere with the consent of the client or third person. Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of [five years] after termination of the representation.

Model Rule 1.16(d) provides:

Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law.

10 See Qualcomm Inc. v. Broadcom Corp., 2008 WL 66932 (S.D. Calif. Jan. 7, 2008) and Zubulake v. UBS Warburg LLC, 220

F.R.D. 212, 218 (S.D.N.Y. 2003).


Model Rule 2.1 addresses the lawyer as independent advisor: “In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation.”

Model Rule 4.1 addresses truthfulness in statements to others:

In the course of representing a client a lawyer shall not knowingly:

(a) make a false statement of material fact or law to a third person; or

(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.

Model Rule 4.2 deals with contacts with represented persons:

In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.

Model Rule 4.3 provides:

In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.

Model Rule 4.4(a) contains a prohibition on activities of a lawyer “in representing a client” that have no “substantial purpose” other than to “embarrass, delay, or burden a third person.”

Model Rule 7.1 and its analog in the states prohibit false or misleading advertising:

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.

Model Rule 8.4(a) and (c) provide:

It is professional misconduct for a lawyer to:

(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;….


Against the backdrop of all of these Rules, let’s consider a number of hypotheticals involving social media and other Internet-related ethics questions.11

TESTIMONIALS ON WEBSITES DEVOTED TO LAWYER EVALUATIONS

Hypothetical No. 8

A lawyer registers in Avvo, a website devoted to obtaining user evaluations of lawyers. The lawyer calls some of her client contacts who have also become friends and asks them to go on to Avvo to rate her. They do—with glowing testimonials about the lawyer’s skills and tenacity. The state bar discovers the testimonials and directs the lawyers to unsubscribe from Avvo. The lawyer is willing to do so, but Avvo refuses to remove the lawyer’s name or the resulting lawyer evaluations.

Do these facts create ethical jeopardy for the lawyer?

Model Rules 7.1 – 7.4 on Advertising

Before analyzing this hypothetical, readers must have a greater appreciation for the advertising restrictions imposed by the Model Rules and state RPC.

As noted earlier, Model Rule 7.1 and its analog in the states prohibit false or misleading advertising:

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.

However, the Model Rules on advertising ethics are not the place for lawyers to go to evaluate advertising restrictions in the states because many state bar associations, like Texas, have adopted proprietary advertising rules of professional conduct.12 The ABA Center for Professional Responsibility (CPR) publishes a document entitled, “Differences Between State Advertising and Solicitation Rules and the ABA Model Rules of Professional Conduct” that, as of June 2, 2016, ran for 106 pages.13 At least 36 states and the District of Columbia contain a change or numerous changes from the Model Rules. For example, the rules of

11 The New York State Bar Association has also promulgated, “Social Media Ethics Guidelines” (updated June 9, 2015). See

http://www.nysba.org/socialmediaguidelines/. There are seven guidelines addressing attorney competence, attorney advertising, furnishing of legal advice through social media; review and use of evidence from social media; communicating with clients; researching jurors and reporting juror misconduct; and using social media to communicate with a judicial officer. It is a helpful reference document in this field.

12 The Association of Professional Responsibility Lawyers has proposed amendments to Model Rules 7.1 through 7.5 to attempt to address the differences between the Model Rules and the various state RPC with respect to advertising. Their reports dated June 2015 and April 2016 contain the proposals. See http://aprl.net/wp-content/uploads/2016/07/APRL_2015_Lawyer-Advertising-Report_06-22-15.pdf and http://aprl.net/wp-content/uploads/2016/07/APRL_2016_Lawyer-Advertising-Supplemental-Report_04-26-16_w-Attach.pdf. The ABA Standing Committee on Ethics and Professional Responsibility is evaluating the proposals.

13 http://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/state_advertising_and_solicitation_rules_differences_update.authcheckdam.pdf. All of the references to State rules in the text and footnotes in this section are based on information contained in this resource.


professional conduct of Florida, Indiana, Louisiana, Missouri, Montana, Nevada, New Mexico, New York, South Carolina, South Dakota, Texas, and Virginia contain prohibitions on statements of past success.14

Hence, in the area of advertising restrictions, the Model Rules are no more than a framework. Model Rule 7.1, quoted above, bans false or misleading communications about the lawyer or the lawyer’s services. With certain exceptions, Model Rule 7.3 says that a lawyer “shall not” solicit professional employment from a prospective client “when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain.”15 Subject to Model Rules 7.1 and 7.3, Model Rule 7.2(a) then states what is permissible: “a lawyer may advertise services through written, recorded or electronic communication including public media.”16 Model Rule 7.4(a) adds that a lawyer may communicate “the fact that the lawyer does or does not practice in particular fields of law,” and Model Rule 7.4(d) allows a lawyer also to state that the lawyer is certified as a specialist in a field of law if the lawyer has been certified by an organization that has been approved by “an appropriate state authority or that has been accredited by the American Bar Association” and “the name of the certifying organization is clearly identified in the communication.”17

Illinois advertising rules largely mimic the Model Rules. Other state advertising rules present a different picture. Five states (Arkansas, Indiana, Nevada, Pennsylvania, and South Carolina) prohibit testimonials or endorsements in lawyer advertising. Another twelve states (California, Florida, Georgia, Louisiana, Missouri, Montana, New York, Pennsylvania, Rhode Island, South Dakota, Utah, and Wisconsin) restrict testimonials or

14 Florida RPC 4-7.13.2(b)(2); Indiana Rule 7.1, Comment [2]; Louisiana RPC 7.2(c)(1)(D); Missouri RPC 4-7.1(c); Montana Rule

7.1(d); Nevada Rule 7.2i); New Mexico Rule 16-701(A)(4); New York RPC 7.1(d) and (e) South Carolina Rule 7.1, Comment [3]; South Dakota RPC 7.1(c)(4); Texas RPC 7.02(a)(2); and Virginia Rule 7.1(b). As noted earlier, links to the rules of professional conduct that are publicly available can be found at: http://www.abanet.org/cpr/links.html#States.

15 Model Rule 7.3(a) provides in full: “(a) A lawyer 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, unless the person contacted: (1) is a lawyer; or (2) has a family, close personal, or prior professional relationship with the lawyer.” Model Rule 7.3(b) prohibits solicitation altogether if the prospective client has made known to the lawyer “a desire not to be solicited” or if the solicitation “involves coercion, duress or harassment.” Model Rule 7.3(c) requires that solicitations include the words, “Advertising Material,” unless the recipient is a person covered by Model Rule 7.3(a)(1) or (2).

16 However, a lawyer “shall not give anything of value to a person for recommending the lawyer’s services” under Model Rule 7.2(b) with certain exceptions (e.g., the lawyer can pay for a permitted advertisement, or pay for the usual charge of a lawyer referral service). And any communication made pursuant to Model Rule 7.2 “shall include the name and office address of at least one lawyer or law firm responsible for its content.”

17 In deciding that, “Testimonials or dramatizations may be false or misleading if there is a substantial likelihood that a reasonable person will reach a conclusion for which there is no factual foundation or will form an unjustified expectation regarding the lawyer or the services to be rendered” and “The inclusion of appropriate disclaimer or qualifying language may prevent testimonials or dramatizations from being false or misleading,” the Utah Ethics Advisory Committee, in its Opinion 09-01 (Feb. 23, 2009) discusses the movement away from specific language in the advertising portion of the Model Rules to more general language. http://www.utahbar.org/rules_ops_pols/ethics_opinions/op_08_03.html. It quoted from the ABA Ethics 2000 Commission: “The Commission recommends deletion of this specification of a ‘misleading’ communication because it is overly broad and can be interpreted to prohibit communications that are not substantially likely to lead a reasonable person to form a specific and unwarranted conclusion about the lawyer or the lawyer’s services. . . . . The Commission also believes that a prohibition of all comparisons that cannot be factually substantiated is unduly broad. Whether such comparisons are misleading should be assessed on a case-by-case basis in terms of whether the particular comparison is substantially likely to mislead a reasonable person to believe that the comparison can be substantiated. . . . .” Ethics 2000 Commission, Report on the Model Rules of Professional Conduct, Reporter’s Explanation of Changes, available at: http://www.americanbar.org/groups/professional_responsibility/policy/ethics_2000_commission/e2k_report_home.html.


endorsements. Hence, the hypothetical would have to be analyzed state-by-state18 and even there, the Free Speech component of the analysis cannot be ignored.

Advertising as Commercial Speech

To illustrate why the First Amendment plays a role in this area of ethics, you must understand what happened in Mason v. Florida Bar, 208 F.3d 952 (11th Cir. 2000) and In re Opinion 39, 961 A.2d 722 (N.J. 2008).

In Mason, the issue was the constitutionality of Florida RPC 4-7.2(j) which prohibited statements made by lawyers in advertisements or written communications that are “self laudatory” or that describe or characterize the quality of legal services. Mason was “AV” rated by Martindale-Hubbell and included this fact in a proposed yellow pages advertisement, which he submitted to the Florida Bar for an advisory ethics opinion. The Bar determined that the statement violated Florida RPC 4-7.2(j) and the advertisement had to include a “full explanation as to the meaning of the [Martindale-Hubbell] AV rating and how the publication chooses the participating attorneys.” The Bar also required the explanation to state “that the ratings and participation are based ‘exclusively on ... opinions expressed by ... confidential sources’ and that these publications do not undertake to rate all Florida attorneys. (internal quotations and ellipses in original).” 208 F.3d at 954. Mason exhausted his administrative appeals and then filed suit challenging under the First Amendment the constitutionality of the Florida Bar’s restriction.

Relying on U.S. Supreme Court precedent,19 the 11th Circuit set forth the applicable standards for evaluating restrictions on a lawyer’s commercial speech:

1. Truthful information is protectable commercial speech.

2. The state’s interests in limiting speech have to be substantial.

3. The challenged regulation has to advance the state’s interests in “a direct and material way.”

4. The extent of the restriction on protected speech has to be “in proportion to the interests served.”

Id. at 955-56. The court of appeals held that the state bar failed to produce evidence that satisfied the third prong of this test. The court of appeals first explained the Bar’s paternalistic view of consumers:

[T]he Bar balks at Mason’s addition of the words “the Highest Rating.” The Bar contends that the entire phrase “‘AV’ Rated, the Highest Rating” will mislead the public to a degree not present with only the words “ ‘AV’ rated.” The Bar takes this position based on the belief that the general public’s unfamiliarity with Martindale-Hubbell and the criteria used by

18 Illustratively, North Carolina Bar Ethics Opinion 2012-8 (October 26, 2012), https://www.ncbar.gov/for-lawyers/ethics/adopted-

opinions/2012-formal-ethics-opinion-8/, determined that a lawyer on LinkedIn may accept a recommendation from a current or former client to be posted on the lawyer’s profile conditioned upon the lawyer’s compliance with the advertising RPC. The Committee explained that the recommendation is “essentially a client testimonial.” As a result, the lawyer had to comply with guidelines issued by the North Carolina Bar Ethics Committee which the opinion summarizes as follows: “A lawyer may accept a client recommendation that is limited to a discussion of the characteristics of a lawyer’s client service. If the recommendation includes general references to the results the lawyer obtained for the client, the lawyer may accept the recommendation if it can be accompanied by an appropriate disclaimer. The lawyer may not accept a recommendation that refers to a settlement or verdict of a specific dollar amount. In addition, the lawyer must review the recommendation for any confidential information that the lawyer believes should not be published online. Therefore, it may be necessary for the lawyer to ask the client to add disclaiming language or to delete certain content.”

19 Bates v. State Bar of Arizona, 433 U.S. 350, 383-84 (1977) (lawyer advertising is protected commercial speech but may be regulated to protect the public); Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n, 447 U.S. 557, 563-66 (1980) (setting forth a four-part test to evaluate constitutionality of state restrictions on commercial speech).


Martindale-Hubbell to rate an attorney will lead the public to misconstrue and overvalue the phrase “ ‘AV’ Rated, the Highest Rating.”

Id. at 956-57. The Bar supported this argument with affidavits that, in essence, relied on “common sense” as proof. The court of appeals was not persuaded:

[C]onsumers need not be familiar with, nor fully understand, Martindale-Hubbell’s ratings system in order to find it useful and not misleading. A rating, like a claim of certification, “is not an unverifiable opinion of the ultimate quality of a lawyer’s work or a promise of success, but is simply a fact, albeit one with multiple predicates, from which a consumer may or may not draw an inference of the likely quality of an attorney’s work.” Accordingly, even if the district court properly inferred from the Introduction to Martindale-Hubbell that the general public is unfamiliar with the ratings system, this fact alone does not justify imposition of a disclaimer requirement on Mason’s truthful advertisement.

Id. at 957 (internal citation omitted). After determining that a disclaimer could not cure a constitutionally infirm restriction, the court of appeals then emphasized that common sense is not proof of concrete harm:

Moreover, the Bar presented no studies, nor empirical evidence of any sort to suggest that Mason’s statement would mislead the unsophisticated public. While empirical data supporting the existence of an identifiable harm is not a sine qua non for a finding of constitutionality, the Supreme Court has not accepted “common sense” alone to prove the existence of a concrete, non-speculative harm.

Id.

In re Opinion 39, 961 A.2d 722 (N.J. 2008) presented the New Jersey Supreme Court with a similar argument. In 2006, the New Jersey Supreme Court Committee on Attorney Advertising issued Opinion 39 which concluded that “advertisements describing attorneys as ‘Super Lawyers,’ ‘Best Lawyers in America,’ or similar comparative titles, violate the prohibition against advertisements that are inherently comparative in nature, RPC 7.1(a)(3), or that are likely to create an unjustified expectation about results, RPC 7.1(a)(2).” Relying on the same four-part test set forth in Mason, the New Jersey Supreme Court agreed with the report of a Special Master that “state bans on truthful, fact-based claims in lawful professional advertising could be ruled unconstitutional when the state fails to establish that the regulated claims are actually or inherently misleading and would thus be unprotected by the First Amendment commercial speech doctrine.” Id. at 731.20 Acknowledging that the Committee was bound by the literal language of New Jersey’s RPC, it directed

20 The Special Master had concluded: “Clearly, mere consumer unfamiliarity with a privately…conferred honor or designation does

not establish that advertising such honor or designation is actually or inherently misleading so long as the honor or designation is actually issued by a legitimate professional organization with verifiable criteria that are available to consumers.” 961 A.2d at 728.


various Bar committees to redraft the RPC to “take into account the policy concerns expressed by the Rule while, at the same time, respecting legitimate commercial speech activities.” Id.21

The New Jersey Supreme Court decision merely brought New Jersey in line with the opinions of other state bars’ ethics committees permitting lawyers to advertise their ranking in publications such as Super Lawyers or Best Lawyers.22 This does not mean that lawyers have carte blanche in this field. Illustratively, Arizona Ethics Op. 05-03 explains:

[I]f a lawyer who was listed in The Best Lawyers in America 1982-1983 states in a current advertisement that the lawyer is listed in The Best Lawyers in America without more, the lawyer is acting unethically by omitting the year of the publication and, thereby, misleading the consumer by implying that the lawyer is listed in the most current version of the publication. Similarly, the lawyer is acting unethically by omitting the specialty for which he or she was listed in the publication and, thereby, misleading the consumer by implying that the lawyer has unlimited legal expertise. Thus, to make the advertisement as a whole not misleading, the advertising lawyer must provide the year for the listing in the publication, as well as the specialty for which the lawyer was listed in the publication.

Nonetheless, the principle that honest representations about a lawyer’s rating by a legitimate rating service (even ones that categorize lawyers as “Super” or “the Best)”23 using objective, verifiable standards for ratings, represents protected commercial speech is an established one.

21 Effective November 2, 2009, New Jersey amended its advertising standards on comparative ratings by a verifiable ratings

organization, allowing them with a disclaimer. N.J. RPC 7.1(a)(3) now provides: “A communication is false or misleading if it: …(3) compares the lawyer’s services with other lawyers’ services, unless (i) the name of the comparing organization is stated, (ii) the basis for the comparison can be substantiated, and (iii) the communication includes the following disclaimer in a readily discernable manner: “No aspect of this advertisement has been approved by the Supreme Court of New Jersey.” See https://www.judiciary.state.nj.us/rules/RPC_09-01-2015.pdf. The official comment by the Supreme Court provides: “A truthful communication that the lawyer has received an honor or accolade is not misleading or impermissibly comparative for purpose of this Rule if (1) the conferrer has made inquiry into the attorney’s fitness; (2) the conferrer does not issue such an honor or accolade for a price; and (3) a truthful, plain language description of the standard or methodology upon which the honor or accolade is based is available for inspection either as part of the communication itself or by reference to a convenient, publicly available source.”

22 Alaska Ethics Op. 2009-2 (2009) https://www.alaskabar.org/servlet/content/2009_02.html; Arizona Ethics Op. 05-03 (2005); http://www.myazbar.org/ethics/opinionview.cfm?id=522; Delaware Ethics Op. 2008-2 (2008), http://media.dsba.org/ethics/pdfs/2008-2.pdf; Iowa Ethics Op. 07-09 (2007), http://205.209.45.153/iabar/ethics.nsf/e61beed77a215f6686256497004ce492/8fedb58b1659b11286257386005a1059/$FILE/Ethics%20Opinion%2007-09%20(Best%20Lawyers%20Super%20Lawyers).pdf; Michigan Informal Ethics Op. RI-341 (2007), https://www.michbar.org/opinions/ethics/numbered_opinions?OpinionID=1211&Type=4; North Carolina Formal Ethics Op. 2007-14 (2008), https://www.ncbar.gov/for-lawyers/ethics/adopted-opinions/2007-formal-ethics-opinion-14/; http://www.ncbar.com/ethics/printopinion.asp?id=788; Philadelphia Ethics Op. 2004-10 (2004), http://www.philadelphiabar.org/page/EthicsOpinion2004-10?appNum=1; Vermont Ethics Op. 2007-2, https://www.vtbar.org/UserFiles/files/Webpages/Attorney%20Resources/aeopinions/Advisory%20Ethics%20Opinions/Advertising/07-02.pdf; Virginia Ethics Op. 1750 (2008), http://www.vacle.org/opinions/1750.htm. North Dakota Ethics Opinion 08-02, https://www.sband.org/userfiles/files/pdfs/ethics/Opinion%2008-02.pdf reached the same result but was withdrawn and superseded by N.D. Ethics Opinion 09-02, https://www.sband.org/userfiles/files/pdfs/ethics/Opinion%2009-08.pdf, where the Ethics Committee suggested that the issue of comparative designations in advertising should be handled not by an ethics opinion but by amendments to N.D. RPC 7.1 North Dakota’s Rule 7.1(c) now provides that a communication is false or misleading if it “(c) compares the lawyer with other lawyers, unless the comparison can be factually substantiated, or (d) compares the lawyer’s services with other lawyers’ services based on the lawyer having received an honor or accolade, unless: (1) the name of the comparing organization is stated, and (2) the basis for the comparison can be substantiated.” http://www.ndcourts.gov/rules/Conduct/frameset.htm.

23 However, caution still must be exercised in the characterization of the lawyer’s rating. See, e.g., N.C. Ethics Op. 14 (January 25, 2008): “A statement that the lawyer is a ‘Super Lawyer,’ without more, implies superiority to other lawyers and is an unsubstantiated comparison prohibited by (N.C.) Rule 7.1(a).”


Court Decisions on Lawyer Advertising Rules

New York’s, Louisiana’s, and Florida’s advertising rules were the subject of challenges that found their way to the 2d, 5th, and 11th Circuits.

In Alexander v. Cahill, 634 F. Supp. 2d 239 (S.D.N.Y. 2007), the district court struck down, among others, a rule which provided that an advertisement “shall not: (1) include an endorsement of, or testimonial about, a lawyer or law firm from a client with respect to a matter still pending,” id. at 249, and one that provided that a lawyer or law firm “shall not utilize: (1) a pop-up or pop-under advertisement in connection with computer-accessed communications, other than on the lawyer or law firm’s own web site or other internet presence ....” Id. at 251.24 The Second Circuit affirmed the judgment of the district court in large part. Alexander v. Cahill, 598 F.3d 79 (2nd Cir. 2010). It reversed the district court in two respects: (1) it upheld the State Bar rule’s prohibition on advertisements in which lawyers from different firms give the impression that they are from the same firm; and (2) it rejected a prohibition on the “portrayal of a judge” in an advertisement because the State Bar had failed to show that the portrayal of a judge in an advertisement would imply an ability by the advertising lawyer to influence a court. Id. at 90, 93.

In Public Citizen, Inc. v. Louisiana Attorney Disciplinary Board, 642 F. Supp. 2d 539 (E.D. La. 2009), the district court upheld25 the Louisiana RPC that, among others, prohibit communications that contain a reference or testimonial to past results or results obtained, or that promise results.26 However, it struck down a rule saying Internet advertising was subject to the same restrictions as traditional media:27

The defendants point to no empirical or anecdotal evidence relating to online attorney advertising. They have not shown that the State studied online advertising techniques or methods and then attempted to formulate a Rule that directly advanced the State’s interests and was narrowly tailored with respect to Internet advertising. Instead, the State, through its high court, simply applied the same Rules as those developed for television, radio, and print ads to Internet advertising. This Court is persuaded that Internet advertising differs significantly from advertising in traditional media. The Supreme Court has recognized the uniqueness of the Internet as compared to other broadcast media: “the Internet is not as ‘invasive’ as radio or television.” While that Court’s later comment that communications do not “appear on one’s computer screen unbidden” may not be relevant here, when pop-up ads do exactly that, the premise still remains valid: that the Internet presents unique issues related to advertising, which the State simply failed to consider in formulating this Rule. This Court cannot say that Rule 7.6(d) directly and materially advances the State’s interests or is

24 This decision considered the New York Model Code. Effective April 1, 2009, New York adopted the Model Rules. Part 1200 of the

Joint Rules of the Appellate Division (22 NYCRR Part 1200). http://www.nycourts.gov/rules/jointappellate/ny-rules-prof-conduct-1200.pdf. The rules found unconstitutional in Cahill now appear at N.Y. RPC 7.1(c)(1) and (g)(1).

25 As part of its case, the Louisiana State Bar produced findings based on a survey on public opinion about lawyer advertising conducted in 2008-09. 642 F. Supp. 2d at 553. The district court relied on these results in reaching its decisions. See, e.g., id (“The LSBA Findings are impressive”).

26 La. RPC. 7.2(c)(1)(D) and (E) provide: “A communication violates this Rule if it:…(D) contains a reference or testimonial to past successes or results obtained, except as allowed in the Rule regulating information about a lawyer’s services provided upon request; (E) promises results;…” https://www.ladb.org/Material/Publication/ROPC/ROPC.pdf. Subparagraph D has been “suspended” as explained below.

27 La. RPC 7.6(d) provides: All computer-accessed communications concerning a lawyer’s or law firm’s services, other than those subject to subdivisions (b) and (c) of this Rule, are subject to the requirements of Rule 7.2 when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain. Subdivisions (b) and (c) relate to websites and e-mail. https://www.ladb.org/Material/Publication/ROPC/ROPC.pdf.


narrowly tailored; the defendants have presented no evidence to that effect. Because they have not met their burden, Rule 7.6(d) is unconstitutional.

Id. at 558-59 (citation omitted). It also held that Internet advertising limitations (filing with the state bar for review and payment of a filing fee)28 were unconstitutional:29

The Wolfe plaintiffs also challenge the application of Rule 7.7 to Internet advertising, which requires that advertisements that are not exempt under Rule 7.8 must be filed for approval prior to or concurrently with the lawyer’s first dissemination of the advertisement. Rule 7.8 exempts from filing certain advertisements and announcements, including those that only include the information listed in Rule 7.2(b). The Wolfe plaintiffs state that the fee for each filing is $175, which would be prohibitively expensive for the nature of Internet advertising. They provide a compelling example: the Wolfe Law Group ran pay-per-click ads during the months of April, May, and June, spending a total of $160.63 with Google (the “leader” in such advertising). They ran approximately 12 total ad variations, which would have required 12 separate filings with the LSBA, and would have cost the firm approximately $2,100. The LSBA Findings note that the plaintiffs need not submit each advertisement to the LSBA for approval, if the ad complies with the permissible content in Rule 7.2(b). However, again, neither the LSBA Findings nor the defendants address the unique considerations with Internet advertising, specifically, the short length of ads and the multiple variations used, each of which would be required to be filed as a unique advertisement. As such, the application of Rule 7.7 to Internet advertising is not supported by sufficient evidence. Therefore, Rule 7.7 as it applies to the filing requirements for Internet advertising is unconstitutional.

Id. at 559.

The Fifth Circuit upheld the district court’s decision except in three respects. Public Citizen Inc. et al. v. Louisiana Disciplinary Board et al., 632 F.3d 212 (11th Cir. Jan. 31, 2011). With respect to Louisiana RPC 7.2(c)(1)(D) which prohibits communications “containing a reference or testimonial to past successes or results obtained,” the court of appeals found a First Amendment violation to the extent that this rule prevented attorneys from presenting truthful, non-deceptive information. Id. at *221-24.30 Louisiana RPC 7.2(c)(1)(J) prohibits lawyer advertisements that include the portrayal of a judge or a jury. The Louisiana Bar argued that “this rule targets only speech that is inherently misleading because the inclusion of a judge or a jury in an attorney advertisement ‘impli[es] that a lawyer has undue influence with a judge or jury’ and because an actual sitting judge or an impaneled jury could not participate in an advertisement.” Such a depiction is not inherently misleading, the court of appeals explained, and the State Bar was otherwise unable to demonstrate

28 La. RPC 7.7 contains Louisiana’s RPC on the evaluation of advertisements including payment of a filing fee. 29 Until further notice (presumably until appeals were exhausted), the Louisiana Supreme Court suspended the enforcement of the

rules found unconstitutional by the district court. “The enforcement of Rule 7.5(b)(2)(c), Rule 7.6(d), and Rule 7.7 (only as it per-tains to filing requirements for internet advertisements) of the Article XVI, Rule 7 series of the Articles of Incorporation of the Louisiana State Bar Association be and are hereby suspended until further notice.” https://www.lasc.org/rules/orders/2009/ROPC_ARTICLE_XVI_REVISED_SEPT_09.pdf.

30 Reliance on survey results was insufficient to satisfy the State Bar’s burden of proof: “The evidence is insufficient to show that unverifiable claims in the targeted speech are so likely to be misleading that a complete prohibition is appropriate. LADB has not met its burden under the second prong of Central Hudson to show that prohibiting all references or testimonials to past results in advertisements will materially advance the State’s asserted interests in preventing consumer deception or setting standards for ethical conduct by Louisiana lawyers.” 632 F.3d at 223 (relying on Central Hudson Gas & Elec. Corp. v. Public Service Commission, 447 U.S. 557 (1980)). The court of appeals also noted that any legitimate State Bar concerns could be met by requiring an appropriate disclaimer. Id.


that the portrayal of a judge or a jury in an advertisement was the equivalent of a lawyer implying that the lawyer had the ability to improperly influence a court. Id. at *224. Finally, the court of appeals held that Louisiana RPC 7.2(c)(10) which, in pertinent part, established the font size and speed of speech of a disclaimer and required that disclaimers had to be both spoken and written in television and electronic advertising, respectively, were not reasonably related to the State Bar’s interests in preventing consumer deception and preserving ethical standards among lawyers. Id. at *228-29.31

In Harrell v. The Florida Bar, 2008 U.S. Dist. LEXIS 15699, at *3-4 (M.D. Fla. Feb. 29, 2008), the district court denied the Bar’s motion to dismiss a complaint challenging portions of Florida RPC 4-7.2(c)(1), which prohibited a number of statements by lawyers (e.g., comparing a lawyer’s services with other lawyers’ services, or that promise results, or that characterize the quality of a lawyer’s services), to the extent that the rules prohibit “statements that are unquantifiable, statements of opinion, or otherwise false or misleading.”32 The dispute centered on Harrell’s use of the advertising slogan: “Don’t settle for less than you deserve.” The slogan had been approved by the Bar in 2002 but was then rejected by the Bar in 2007 because it improperly characterized the quality of the legal services being offered. The district court later entered judgment for the Bar in an unpublished opinion. The district court held in part that plaintiffs did not have standing and that the challenge to the slogan was moot because the Bar’s Board of Governors, after Harrell filed suit, declared that the slogan was permissible. It also held that all of their other claims were “premature” except for the challenge to RPC 4.7-7(a)’s prefiling requirements as an unconstitutional prior restraint on free speech, which the district court then rejected. Harrell v. The Florida Bar, Case No. 3:08-cv-15-J-34TEM (Order dated March 30, 2009).

The court of appeals affirmed in part and reversed in part the judgment of the district court. Harrell v. The Florida Bar, 608 F.3d 1241 (11th Cir. 2010). The court of appeals held that Harrell had standing to challenge five of the nine advertising rules he had questioned on vagueness grounds and further that these vagueness grounds were ripe for review. Id. at 1259.33 Harrell also could challenge “as applied” all nine rules as unconstitutional encroachments on his free speech, but held that all but one of these claims were not ripe for review because Harrell had not first sought an advisory opinion from the Bar. Id. at 1259-1265.34 Harrell’s challenge to the slogan was not moot, according to the court of appeals, because there was too much ambiguity in the Bar’s reversal of position to convince the court of appeals that this decision would not be revisited. Id. at 1265-1268. Finally, the court of appeals affirmed the judgment of the district court on the prefiling requirement because “the rule is not a prior restraint and directly serves important state interests in a reasonably well-tailored fashion.” Id. at 1268-1271.35

31 The court of appeals seemed to be particularly persuaded by the fact that the font size and speed of speech and spoken/written

requirements, in effect, eliminated an attorney’s ability to employ short advertisements of any kind. 632 F.3d at 229. 32 Harrell also challenged Florida RPC 4-7.7(a)1) which requires prefiling of certain advertisements. 33 “In sum, we hold that Harrell’s vagueness challenges to Rules 4-7.1, 4-7.2(c)(1)(G), 4-7.2(c)(2), 4-7.2(c)(3), and 4-7.5(b)(1)(A) are

ripe and therefore justiciable. In so doing, we express no opinion as to the merits of these claims; all we hold today is that Harrell has made a sufficiently credible showing that the rules are unconstitutionally vague on their face.....” 608 F.3d at 1259.

34 The court of appeals distinguished the nine claims as those “whose application is categorical and thus clear” and those “that challenge a rule whose application leaves substantial room for reasonable interpretation by the Florida Bar.” 608 F.3d at 1262. The one rule that fell into the first category was Fla. RPC 4-7.5(b)(1)(C), which prohibits in lawyer advertisements the use of “background sound” other than “instrumental music.” The court of appeals did not think that either term presented a sufficient ambiguity to require interpretation, and thus was ripe for constitutional review. Id.

35 The court of appeals reasoned that a 20-day delay before an advertisement could be broadcast was reasonable, even as to an “unusually time-sensitive advertisement.” The court of appeals saw “no pressing need for immediate dissemination of broadcast advertisements.” The State Bar is allowed “ample opportunity” to supervise attorney advertisements, and, the court of appeals explained, twenty days falls within this standard. 608 F.3d at 1271 (citations omitted).


In response to the decision, the Florida Supreme Court substantially adopted the recommendation of a Florida Bar committee to replace the advertising rules with a new set of rules.36 But even these rules have been the subject of constitutional attack. Searcy v. Florida Bar, 140 F. Supp. 3d 1290 (N.D. Fla. 2015). A law firm (Searcy) included statements on its website that the firm “specializes in mass-tort and unsafe-product cases.” It was undisputed that “the firm has handled many mass-tort and unsafe-product cases.” Id. at 1293. The Florida Bar determined that the website entries violated Florida RPC 4.7.14(a)(4) which prohibits potentially misleading advertisement, which include a statement that lawyer is a specialist or an expert in a field unless the lawyer has been certified as such by the Bar. However, the statement on the firm’s website was truthful and not misleading and represented commercial speech. Id. at 1297. To justify a restriction on commercial speech, the Bar would have to show “(1) the asserted governmental interest in restricting the speech is substantial; (2) the challenged restriction directly advances the asserted governmental interest; and (3) the restriction is not more extensive than is necessary to serve that interest.” Id. (citing Central Hudson, supra, 447 U.S. at 563-66.) The Bar was unable to do so:

[T]he Bar prohibits even truthful claims. Searcy Denney has expertise in mass-tort and unsafe-product cases, as well as in personal-injury cases generally. The Bar has not denied it and could not reasonably do so. But Rule 4-7.14 prohibits Searcy Denney from noting on its website that it has expertise in these areas. Indeed, the Bar prohibits every lawyer in the state from claiming expertise in mass-tort or unsafe-product cases, because there is no board certification in these narrow fields. And the Bar prohibits every law firm in the state from claiming expertise in personal-injury cases, because law firms, as distinguished from individual lawyers, cannot be board-certified.

It should be noted, too, that the Bar's approach is unlikely to solve the problem it posits. The Bar readily allows a lawyer to assert that the lawyer handles only cases of a specific kind. So a lawyer can say personal-injury cases are all the lawyer handles, or that personal-injury cases are the lawyer's business. The Bar apparently believes that a potential client will attribute a different meaning to these assertions than to the assertion that a lawyer specializes or has expertise in personal-injury cases. But the Bar has offered no empirical or even anecdotal support for the supposition. When First Amendment rights are at stake, such an unsupported (and indeed unintuitive) supposition will not do.

In sum, the Bar's ban on truthful statements about a lawyer's or law firm's specialty or expertise, at least as applied to websites, fails all three prongs of the Central Hudson test.

Id. at 1298.

The New York State Bar Association in Opinion 972 (June 26, 2013)37 determined that a law firm “may not list its services under the heading of ‘Specialties’ on a social media site, and [a] lawyer may not do so unless certified as a specialist by an appropriate organization or governmental authority.” The inquiring lawyer’s firm

36 http://www.floridasupremecourt.org/decisions/2013/sc11-1327.pdf#search=2013 sc11-1327. Under the new rules, all lawyer

communications, including websites, are treated the same way under the advertising requirements. Florida RPC 4-7.11 defines the “type of media” to which the advertising rules apply as follows: “Unless otherwise indicated, this subchapter applies to all forms of communication in any print or electronic forum, including but not limited to newspapers, magazines, brochures, flyers, television, radio, direct mail, electronic mail, and Internet, including banners, pop-ups, websites, social networking, and video sharing media. The terms ‘advertising’ and ‘advertisement’ as used in chapter 4-7 refer to all forms of communication seeking legal employment, both written and spoken.”

37 http://www.nysba.org/CustomTemplates/Content.aspx?id=28101.


had created a LinkedIn page. In the “About” section of the listing, there is a subsection labeled “Specialties.” Referencing New York RPC 7.4(a) and (c), the Committee determined that “a lawyer or law firm listed on a social media site may, under Rule 7.4(a), identify one or more areas of law practice.” However, to list those areas under a heading of “Specialties,” the Committee decided, “would constitute a claim that the lawyer or law firm ‘is a specialist or specializes in a particular field of law’ and thus, absent certification as provided in Rule 7.4(c), would violate Rule 7.4(a).”38

Similarly, in Philadelphia Bar Opinion 2012-8 (November 2012),39 the Bar Ethics Committee determined that listing practice areas in “Skills and Expertise” section of LinkedIn was permissible since the lawyer is “merely listing the areas in which” the attorney practices. With respect to specific categories under the listing in which an attorney could indicate that he or she is an “expert” in a certain field, the Committee determined doing so “could reasonably lead a consumer to believe that the lawyer is a ‘specialist,’” and would be impermissible unless the attorney complied with Pennsylvania Rule 7.4. The Committee further cautioned the inquirer to monitor comments posted about the attorney to “assure that any statements about her qualifications are truthful, do not convey unreasonable or unquantifiable expectations, and are not misleading,” and to remove any that fall in the latter two categories. In its final admonition, the Committee urged the inquirer to

evaluate all advertising both in the context in which it is presented, as well as the context in which it will be viewed by clients and potential clients, to ensure that the use of subjective terms does not make false or misleading communication about the lawyer’s services. Thus, it is suggested that the Inquirer consider using more objective examples of the lawyer’s services rather than the broad subjective categories provided by LinkedIn.

Whether court challenges to the application of either these New York or Pennsylvania rules will occur, of course, remains to be seen.40

Discussion of Hypothetical No. 8

Returning to the hypothetical, first, you may be asking: “what is Avvo’?41 It is a lawyer rating site but is also a clearinghouse site that links persons who want legal services with persons who provide legal services—think of it as an “Uber” for persons in need of legal services. It collects a fee from lawyers who get business and collects a fee from lawyers who advertise on the site. It presents profiles of lawyer--even those that have no

38 In L.E.O. 2015-02, the West Virginia Lawyer Disciplinary Board determined that attorneys “may not state or imply that they are

certified as a specialist in a particular field of law” because West Virginia RPC 7.4 does not recognize specialization in the practice of law. Attorneys are permitted, however, to communicate that they “do or do not practice in a particular field of law, and may do so via social media and social networking sites, as well.”

39 http://www.philadelphiabar.org/WebObjects/PBAReadOnly.woa/Contents/WebServerResources/CMSResources/Opinion2012-8Final.pdf.

40 The D.C. Bar RPC does not prohibit statements regarding expertise or specialties. D.C. Bar Ethics Opinion 370 (November 2016). So under D.C. Bar RPC, lawyers can list them subject to compliance with the advertising rules. As to endorsements by others, the authors of Ethics Opinion 370 had this recommendation: “We recommend that lawyers who are using social media sites that allow for the review of posts, recommendations or endorsements prior to publication avail themselves of the settings that allow review and approval of such information before it is publicized on the lawyer's social media page.”

41 If you are interested, you can learn about Avvo at http://www.avvo.com/.


association with Avvo--collecting information from public sources,42 and, where it can get them, photographs of the lawyers. Other lawyers can put sponsorship ads on the profile page of a lawyer who has never “signed up” to claim a profile on Avvo.43

The basis for the hypothetical is a matter in Florida. A lawyer, Rothman, maintained a profile on Avvo. The profile included results of prior cases handled by Rothman. In April 2008, Rothman asked several former clients to complete ratings on him to be posted on Avvo. He did not contact the persons he solicited other than through a default email used by Avvo for this purpose. Five former clients responded. They submitted reviews including information on Rothman’s success in cases handled by him for these former clients and offering opinions on the quality of Rothman’s services.44

Rothman then contacted ethics counsel for the Florida Bar to determine if the client reviews complied with Florida’s rules of professional conduct. The Bar’s counsel concluded that statements submitted by others for dissemination through Rothman’s profile on Avvo would be imputed to him and that the use of the Avvo website by Rothman violated what was then Florida RPC 4-7.2(c)(1)(F).45 The Florida Bar Standing Committee on Advertising upheld ethics counsel. On October 6, 2008, ethics counsel for the Bar issued an advisory opinion consistent with the Standing Committee’s decision that determined that client reviews on

42 In 2008, Avvo submitted a verified application to the Illinois Supreme Court to obtain registration and disciplinary information

about every lawyer in Illinois. “Verified Application by Avvo, Inc. For Copy of Attorney Registration Information Provided on Website of Attorney Registration & Disciplinary Commission,” Ill., No. M.R. 22482, June 10, 2008. According to the verified application, Avvo had obtained comparable information from 30 other states. In Illinois, however, Avvo was rebuffed by the Attorney Registration & Disciplinary Commission (ARDC) administrator who, by letter dated April 23, 2008, attached to the verified application, explained that the ARDC is allowed to release the “Master Roll of Illinois attorneys” only for “certain narrow purposes”: (1) use by a court, (2) use by the state bar association, or (3) “use by a continuing legal education organization in Illinois to promote programs beneficial to the profession or the public.” Avvo did not fall into any of these categories, the ARDC administrator determined. In response to Avvo’s verified petition, the ARDC explained that the Supreme Court should “recognize that the information sought by Avvo will, if released to that company, be used to formulate subjective ratings of Illinois lawyers, based on an unknown weighing process involving the Court’s data together with apparently unverified information, all compiled into what may well result in another ‘ludicrous’ rating system designed to make a profit for the rating company by disseminating that entity’s unverifiable conclusions to the public.” “Administrator’s Response to Application By Avvo, Inc. for Master Roll Information,” July 3, 2008, p.12-13 (referring to the district court’s observation in Browne v. Avvo, 525 F. Supp. 2d 1249, 1252 (W.D. Wash. 2007) (footnote omitted), (where the district court dismissed a complaint against Avvo brought by lawyers challenging, under Washington’s Consumer Protection Act, Avvo’s dissemination of information) that to the extent that the plaintiff’s lawsuit “has focused a spotlight on how ludicrous the rating of attorneys (and judges) has become, more power to them.”) In a two-sentence order, the Illinois Supreme Court denied Avvo’s request. In Re Application of Avvo Inc., Ill., No. M.R. 22492, July 15, 2008).

43 Avvo has successfully defeated challenges to the use of a non-consenting lawyer’s profile to advertise the services of other lawyers. See, e.g., Vrdolyak v. Avvo, Inc., 2016 U.S. Dist. LEXIS 123578 at *9 (N.D. Ill. Sept. 12, 2016) (dismissing a putative class acting under Illinois’ Right of Publicity Act on First Amendment grounds because Avvo’s website listings were more like the yellow pages and thus receive First Amendment protection as non-commercial speech that can only be overcome under a strict scrutiny analysis, which plaintiff conceded he could not satisfy: “At the end of the day, this issue depends on whether one views defendant’s actions as providing an attorney listing or directory, with advertisements placed on it, or whether one views each attorney profile as an advertisement for the ‘Sponsored Listing.’ But not every attorney profile contains an advertisement and, as defendant points out, none of the advertisements used plaintiff’s name. The court views what defendant does as more akin to the yellow pages directory, which receives First Amendment protection…”).

44 The factual recitation comes from the complaint filed in the United States District Court for the Southern District of Florida by Rothman against the Florida Bar that, as discussed below, has been settled.

45 At the time, Florida RPC 4-7.2(c)(1)(B) provided: “(c)(1) A lawyer shall not make or permit to be made a false, misleading, deceptive, or unfair communication about the lawyer or the lawyer’s services. A communication violates this rule if it:…(F) contains any reference to past successes or results obtained.” As noted earlier, the Florida advertising rules were replaced and renumbered in 2013.


Avvo “constitute testimonials” prohibited under Florida’s RPC.46 The Board of Governors of the Florida Bar affirmed the Standing Committee’s decision on December 12, 2008. Rothman requested that Avvo remove the client reviews from his profile. Avvo refused. Rothman then sued challenging on First Amendment grounds the right of the Florida Bar to regulate Avvo’s publication of testimonials, information about past cases, and statements regarding the quality of Rothman’s services on other online lawyer directories. On November 16, 2009, the Bar settled the lawsuit agreeing, according to a press release issued by plaintiff’s counsel, “to exempt online lawyer directories such as Avvo.com and LinkedIn.com from its rules prohibiting client testimonials, statements of past results and comments on quality of services.”47

In 2016, the Florida Bar Standing Committee on Advertising issued “Guidelines for Networking Sites”48 that addressed the topic of reviews on Avvo or comparable sites. The Guidelines insulate the lawyer from responsibility for information about the lawyer posted by a third party as long as the lawyer did not prompt the posting and for information on a page not controlled by the lawyer:

A lawyer “is not responsible for information posted on the lawyer’s page by a third party, unless the lawyer prompts the third party to post the information or the lawyer uses the third party to circumvent the lawyer advertising rules.”

“If a third party posts information on the lawyer’s page about the lawyer’s services that does not comply with the lawyer advertising rules, the lawyer must remove the information from the lawyer’s page.”

“If the lawyer becomes aware that a third party has posted information about the lawyer’s services on a page not controlled by the lawyer that does not comply with the lawyer advertising rules, the lawyer should ask the third party to remove the non-complying information. In such a situation, however, the lawyer is not responsible if the third party does not comply with the lawyer’s request.”49

46 Florida RPC 4.7.13(a) provides that a lawyer “may not engage in deceptive or inherently misleading advertising.” Subparagraph

(a) then provides that an advertisement is deceptive or inherently misleading if it: “(1) contains a material statement that is factually or legally inaccurate; (2) omits information that is necessary to prevent the information supplied from being misleading; or (3) implies the existence of a material nonexistent fact.” Rule 4-7.13(b) gives examples of misleading advertising. Testimonials that fall into the “prohibited” category are those: “(A) regarding matters on which the person making the testimonial is unqualified to evaluate; (B) that is not the actual experience of the person making the testimonial; (C) that is not representative of what clients of that lawyer or law firm generally experience; (D) that has been written or drafted by the lawyer; (E) in exchange for which the person making the testimonial has been given something of value; or (F) that does not include the disclaimer that the prospective client may not obtain the same or similar results.” In a comment to Rule 4-7.13, acceptable testimonials are described: “A testimonial is a personal statement, affirmation, or endorsement by any person other than the advertising lawyer or a member of the advertising lawyer’s firm regarding the quality of the lawyer’s services or the results obtained through the representation. Clients as consumers are well-qualified to opine on matters such as courtesy, promptness, efficiency, and professional demeanor. Testimonials by clients on these matters, as long as they are truthful and are based on the actual experience of the person giving the testimonial, are beneficial to prospective clients and are permissible.”

47 Public Citizen website at http://www.citizen.org/pressroom/release.cfm?ID=3000. 48 https://www.floridabar.org/TFB/TFBResources.nsf/Attachments/18BC39758BB54A5985257B590063EDA8/$FILE/Guidelines%20-

%20Social%20Networking%20Sites.pdf?OpenElement 49 Compare D.C. Bar Ethics Opinion 370 (November 2016): “The ability for clients to place reviews and opinions of the services

provided by their counsel on the internet can present challenges for attorneys. An attorney must monitor his or her own social networking websites, verify the accuracy of information posted by others on the site, and correct or remove inaccurate information displayed on their social media page(s). As set forth in comment [1] to Rule 7.1, client reviews that may be contained on social media posts or webpages must be reviewed for compliance with Rule 7.1(a) to ensure that they do not create the ‘unjustified expectation that similar results can be obtained for others.’” But what if the lawyer cannot control the reviews of others? The D.C. Bar Opinion 370 responds to this question as well: “We recognize that there are limitations on the control that any individual can assert over his or her presence on the internet. That is why we recognize that an attorney's ethical obligations to review and regulate content on social media extends only to those social media sites or webpages for which the attorney maintains control of the content, such as the ability to delete posted content, block users from posting, or block users from viewing. However, notwithstanding the scope of the attorney's affirmative obligations, it is highly advisable for attorneys to be aware of content regarding them on the internet.”


In Ethics Opinion 09-10, the South Carolina Bar Ethics Advisory Committee50 described the services of “Company X” that, plainly, is Avvo. Here is a portion of the fact scenario presented to the Committee:

Company X collects information about attorneys and generates an internal rating for each listed attorney. Individual attorneys can “claim” their profiles and update their information. Company X has already created listings and ratings for a number of South Carolina attorneys regardless of each lawyer’s knowledge of the listings.

The website also features peer endorsements. Attorneys are able to write comments about one another that are then displayed on the attorney’s profile. It is possible to remove these endorsements from public view. Peer endorsements help raise an individual’s rating.

The website also features “client ratings.” Anyone can submit a client rating about any lawyer, and the lawyer may invite current and former clients to submit ratings. Client ratings do not impact an attorney’s internal rating by Company X, but the client comments are prominently posted on the attorney’s listing. While Company X monitors and inspects the client ratings and peer reviews, attorneys are unable to control who endorses or rates them.

Two questions were presented:

1) May a South Carolina lawyer claim his or her Company X website listing, including peer endorsements, client ratings, and Company X ratings?

2) May a South Carolina lawyer invite peers, clients, or former clients to post comments and/or rate the lawyer?

In essence, S.C. Ethics Op. 09-10 says that a lawyer who takes an action that “claims” a website is ethically responsible for compliance with the rules of professional conduct by the website and if the lawyer cannot obtain compliance, the lawyer must disassociate from the website and remove any listings by the lawyer on the website. Here is the sequence of the determinations made by the Committee:

“Statements made by Company X on its website about a lawyer are not governed by the Rules of Professional Conduct unless placed or disseminated by the lawyer or by someone on the lawyer’s behalf.”

“[T]o ‘claim’ one’s website listing is to ‘place or disseminate’ all communications made at or through that listing after the time the listing is claimed.”

“By claiming a website listing, a lawyer takes responsibility for its content and is then ethically required to conform the listing to all applicable rules.”

“[A] lawyer who adopts or endorses information on any similar web site becomes responsible for conforming all information in the lawyer’s listing to the Rules of Professional Conduct.”

“[B]y requesting access to and updating any website listing (beyond merely making corrections to directory information), a lawyer assumes responsibility for the content of the listing.”

“Information on business advertising and networking websites are both communications and advertisements; therefore, they are governed by (S.C.) Rules 7.1 and 7.2.”

“While mere participation in these websites is not unethical, all content in a claimed listing must conform to the detailed requirements of (S.C.) Rule 7.2(b)-(i) and must not be false, misleading, deceptive, or unfair.”

50 https://www.scbar.org/lawyers/legal-resources-info/ethics-advisory-opinions/eao/ethics-advisory-opinion-09-10/.


“[I]f an online listing is updated to include anything beyond directory information (which includes ‘the name of the lawyer or law firm, a lawyer’s job title, jurisdictions in which the lawyer is admitted to practice, the lawyer’s mailing and electronic addresses, and the lawyer’s telephone and facsimile numbers), according to Comment 5 (of S.C. RPC 7.2), then (S.C. RPC) 7.2(b) requires that a copy be filed with the Commission.”

“[P]rovided that the rating is presented in a non-misleading way and is independently verifiable, including one’s rating in an online listing or elsewhere appears permissible.”

“A lawyer should not solicit, nor allow publication of, testimonials. A lawyer should also not solicit, nor allow publication of, endorsements unless they are presented in a way that is not misleading nor likely to create unjustified expectations. ‘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 a prospective client.’ (S.C. RPC 7.1) Cmt. 3 (emphasis added).”

“Lawyers soliciting client comments on web-based business listings are also cautioned to adhere to Rule 8.4(a), which prohibits lawyers from violating the Rules of Professional Conduct through the acts of another.”

“(S.C.) Rule 7.1(c) prohibits comparative language in all communications, Rule 7.1(b) prohibits statements that are likely to create unjust expectations about results, and Rule 7.2(f) prohibits self-laudatory language in advertisements. Therefore, a lawyer should monitor a ‘claimed’ listing to keep all comments in conformity with the Rules. If any part of the listing cannot be conformed to the Rules (e.g., if an improper comment cannot be removed), the lawyer should remove his or her entire listing and discontinue participation in the service.”

What if the lawyer cannot remove the listing? What if the website provides that whatever information the lawyer contributes initially can be corrected when needed but will not be removed by the website operator? South Carolina Ethics Op. 09-10 ends with this statement: “This opinion does not take into consideration any constitutional-law issues regarding lawyer advertising.” If this opinion becomes the subject of an enforcement action, based on the Florida, New York, and Louisiana actions no one should be surprised if these questions become the focus of a legal challenge.

In Washington, Advisory Opinion 201402 (2014)51 also addressed the question of a lawyer “claiming” a profile on an unnamed website (presumably also Avvo). Before claiming a profile, lawyers in Washington must take reasonable steps “to ascertain the extent to which the website will make representations about Lawyer’s practice, including the numeric and descriptive rating, in order to determine whether any such representations will be inaccurate or misleading.” If a lawyer determines that a lawyer’s performance or merit rating is not based upon the lawyer’s performance or merit, and the website does not disclose how ratings are calculated, “the lawyer must not participate in the website,” or, if the lawyer learns this after claiming the profile, the lawyer “must limit participation to ensuring that information is accurate and should consider posting a disclaimer, if it is reasonably feasible to do so.” The opinion authors add that if information changes, the lawyer must update the profile. Washington Advisory Opinion 201402 also determined that a lawyer could attach “accurate client ratings and peer endorsements” to the lawyer’s profile and must “delete or disclaim… false or misleading comments or endorsements, if it is reasonably feasible to do so.” Lawyers are also instructed to monitor the website periodically to ensure the accuracy of the profile. Finally, lawyers may only endorse another lawyer “if the endorsement is accurate” and trading endorsements between lawyers would

51 http://mcle.mywsba.org/IO/print.aspx?ID=1681.


implicate the prohibition in Washington RPC 7.2(b) (“A lawyer shall not give anything of value to a person for recommending the lawyer’s services….”) because giving an endorsement to receive an endorsement would be giving something of value for recommending the lawyer’s services, according to the opinion.52

Under the Model Rules, the hypothetical is easily answered. The lawyer has not made any communication, much less a false or misleading one. Avvo posted what others wrote about the lawyer. And the lawyer is not soliciting anyone. Avvo is posting information; not the lawyer. It is true that the lawyer created the profile on Avvo to begin with, but Avvo could have learned similar information about the lawyer from public sources. And as long as the information provided by the lawyer to Avvo is not false or misleading, and there does not exist “a significant motive” by the lawyer in “pecuniary gain,” the Model Rules will not be applicable.

Under a particular state’s rules, the answer is less clear. What role the lawyer played in soliciting comments on the lawyer’s abilities, what information the lawyer provided in a profile, the lawyer’s ability to adjust or withdraw the profile, whether any disclaimers are provided, and the precise language of applicable RPC will have to be evaluated first, and if a violation exists, the question of whether the bar rule creating the violation will stand up against a commercial speech challenge would then have to be answered.

One state bar ethics opinion, however, has blessed a lawyer’s plan to give a $50 credit to a client for rating the lawyer on a site like Avvo. `.

The opinion authors did not regard New York RPC 7.2 (“A lawyer shall not compensate or give anything of value to a person or organization to recommend or obtain employment by a client, or as a reward for having made a recommendation resulting in employment by a client ….”) as applicable because the lawyer was seeking a rating, not a recommendation:

A client thus remains free to give the lawyer a bad rating and remains free not to check the box saying that she would recommend the lawyer to others. Moreover, the inquirer is not making the $50 credit contingent on whether some future person retains the lawyer as a result of the rating. Thus, the credit is not a “reward” for making a recommendation “resulting in employment by a client.”

There was not an “advertising” concern because “advertisement” is defined in pertinent part in New York’s RPC as a “public or private communication made by or on behalf of a lawyer.” The testimonial in issue was not made “by or on behalf of a lawyer,” the opinion writers determined. The circumstances would be different if the client was “coerced” or “compelled” to rate the lawyer:

If the inquirer were to coerce or compel a client to rate the lawyer with respect to a pending matter, then the rating (i.e., testimonial) would be “on behalf of the lawyer, and would hence be an “advertisement” subject to Rule 7.1(e)(4). And if the lawyer, rather than the client, were to write the review or fill in the ratings, then they would be “by … the lawyer,” and would be advertisements under Rule 1.0(a) subject to Rule 7.1(a), which prohibits advertisements that are “false, deceptive or misleading.” A rating that purports to be made by a client but was actually made by the lawyer would be deceptive and misleading (and

52 The West Virginia Lawyer Disciplinary Board in L.E.O. 2015-02 cautioned lawyers who are endorsing other lawyers on social

media or social networking websites that they must refrain from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation in violation of RPC 8.4(c).


perhaps false as well). See N.Y. State 661 (1994) (“a dramatization using a fictional client testimonial is unethical because it is inherently false, deceptive and misleading”).

But providing a $50 credit to the client was “not coercion or compulsion; it is an incentive. Cf. N.Y. State 873 (2011) (Rules of Professional Conduct do not prohibit an attorney from offering a prize to join the attorney’s social network as long as the prize offer is not illegal).” And because it was not coerced, it also did not violate New York RPC 8.4(c)’s prohibition on conduct involving dishonesty, fraud, deceit or misrepresentation.53

If the lawyer decided to advertise the lawyer’s Avvo rating, the New York opinion writers did offer these words of caution:

Since the inquirer has not asked about advertising the Avvo rating, we do not address whether Avvo ratings are “bona fide professional ratings” within the meaning of Rule 7.1(b)(1), or how other advertising provisions might apply if the inquirer were to advertise his Avvo rating. Nor do we address whether Rule 8.4(c), which prohibits a lawyer from engaging in conduct involving dishonesty, fraud, deceit or misrepresentation, requires the inquirer to disclose that he has given certain clients a $50 inducement to rate him on Avvo. Finally, we do not address whether the inquirer’s plan complies with the Federal Trade Commission’s Guides Concerning the Use of Endorsements and Testimonials in Advertising, 16 C.F.R. Part 255. (The FTC Guides are available online at http://1.usa.gov/1CikwjJ.) Whether a lawyer’s conduct complies with FTC guidelines is a question of law beyond our jurisdiction.

RESPONSES TO A NEGATIVE ONLINE REVIEW

Hypothetical No. 9

A former client posts a negative review of a lawyer’s capabilities on LinkedIn after a defense verdict in the former client’s claim for personal injuries resulting from an automobile accident. The lawyer is quite upset by the review and wishes to write a response.

What ethical advice would you give the lawyer?


As a reminder, the duty of confidentiality imposed on lawyers under Model Rule 1.6 goes to information relating to the representation of a client.54 That is much broader than privileged information. Model Rule 1.6,

53 See also North Carolina Ethics Opinion 2012-8 (October 26, 2012) which provides in reference to a LinkedIn inquiry, that, “A

lawyer may ask a current or former client for a recommendation that consists of comments indicating the client’s level of satisfaction with certain aspects of the lawyer-client relationship.” The Committee added that, “The lawyer’s duty of confidentiality to the client requires that the lawyer advise the client, at the time of the request, that the recommendation may be published on the member’s online profile, and the lawyer must obtain the client’s consent to publication.”

54 California does not follow the Model Rules, but its RPC also prohibit disclosure of information relating to the representation of a client even if the information is public. In Formal Opinion 2016-195, the State Bar Standing Committee on Professional Responsibility and Conduct determined: “A lawyer may not disclose his client’s secrets, which include not only confidential information communicated between the client and the lawyer, but also publicly available information that the lawyer obtained during the professional relationship which the client has requested to be kept secret or the disclosure of which is likely to be embarrassing or detrimental to the client. Even after termination of the attorney-client relationship, the lawyer may not disclose potentially embarrassing or detrimental information about the former client if that information was acquired by virtue of the lawyer’s prior representation.” http://ethics.calbar.ca.gov/Portals/9/documents/Opinions/CAL%202016-195%20(13-0005).pdf.


Comment [3] (“The confidentiality rule, for example, applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source. A lawyer may not disclose such information except as authorized or required by the Rules of Professional Conduct or other law.”) See, e.g., In re Kristine Ann Peshek, M. R. 23794, 2009 PR 00089 (Ill. May 18, 2010).55

Pennsylvania Bar Formal Opinion 2014-200 addresses the self-defense exception in Pennsylvania RPC 1.6(c)(4) [Model Rule 1.6(b)(5)]:

(c) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

…

(4) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client.

The issue was how a lawyer might respond to a negative review about the lawyer posted online. The Committee first determined that a “disagreement as to the quality of a lawyer’s services” does not represent a “controversy”; otherwise any time that a lawyer and a client disagree about the quality of the representation, “the lawyer may publicly divulge confidential information.” In addition, the Committee noted, disclosure is allowed to establish a “claim or defense” in a “controversy.” But a “controversy” means a “proceeding” based on Comment [14] to Pennsylvania RPC 1.6 (Comment [10] to Model Rule 1.6), which relates a lawyer’s disclosure of confidential information to establish a claim or defense to a civil, criminal, disciplinary, or other “proceeding.” Since the self-defense exception was not applicable, the Committee concluded that any reply made by the lawyer may not contain client confidential information.

The Committee added that a reply must be “proportional and restrained” and cautioned that a reply may call more attention to the client’s review. The Committee also provided sample language a lawyer could use in making a response:

A lawyer's duty to keep client confidences has few exceptions and in an abundance of caution I do not feel at liberty to respond in a point-by-point fashion in this forum. Suffice it to say that I do not believe that the post presents a fair and accurate picture of the events.

55 The Illinois Supreme Court allowed a petition on consent to suspend Ms. Peshek for sixty (60) days.

http://www.illinoiscourts.gov/supremecourt/announce/2010/051810.pdf. She had violated Illinois RPC 1.6 by writing a blog that contained information about conversations with clients in her role as a public defender in Winnebago County for nineteen years. She did not have informed consent to make the disclosures. More specifically, the ABA Journal reported in an online posting dated Sept. 10, 2009, the following: “Kristine Ann Peshek has been accused of revealing client confidences, allegedly for describing her clients in a way that made it possible to identify them. Peshek referred to her clients by either their first names, a derivative of their first names, or by their jail identification numbers, according to the disciplinary complaint filed on Aug. 25.” http://www.abajournal.com/news/article/blogging_assistant_pd_accused_of_revealing_secrets_of_little-disguised_clie. The Wisconsin Supreme Court applied a similar 60-day suspension as a matter of “reciprocal discipline.” In re Disciplinary Proceedings Against Kristine A. Peshek, No. 2011AP909-D (June 24, 2011), available at http://caselaw.findlaw.com/wi-supreme-court/1572272.html. This Order summarized the Illinois Bar complaint against Ms. Peshek, which included not only the 1.6 violation but also a violation of Illinois RPC 3.3 and 8.4 by her failure to have her client rectify a fraud on the court dealing with a material fact that she knew was untrue.


The New York State Bar Association issued Opinion 1032 (October 30, 2014)56 that unsurprisingly determined that a law firm may not disclose confidential client information “solely to respond to a former client’s criticism of the lawyer posted on a lawyer-rating website.” The inquirer was a New York law firm. It believed that a “disgruntled” former client “has unfairly characterized the firm’s representation of the former client on a website that provides reviews of lawyers”:

A note posted by the former client said that the former client regretted the decision to retain the firm, and it asserted that the law firm provided inadequate services, communicated inadequately with the client, and did not achieve the client’s goals. The note said nothing about the merits of the underlying matter, and it did not refer to any particular communications with the law firm or any other confidential information. The former client has not filed or threatened a civil or disciplinary complaint or made any other application for civil or criminal relief.

The firm law firm sought “to respond to the former client’s criticism by telling its side of the story if it may do so consistently with its continuing duties to preserve a former client’s confidential information.” However, the information in question constituted “Confidential information” as defined by Rule 1.6(a) of the New York RPC. Under Rule 1.9(c), a lawyer is generally prohibited from using or revealing confidential information of a former client. But what of the self-defense exception in New York RPC 1.6(b)(5)(i) (a lawyer “may reveal or use confidential information to the extent that the lawyer reasonably believes necessary … to defend the lawyer or the lawyer’s employees and associates against an accusation of wrongful conduct”)? The Committee did not regard this exception as applicable because there was no actual or threatened proceeding against the lawyer:

The language of the exception suggests that it does not apply to informal complaints such as this website posting. The key word is “accusation,” which has been defined as “[a] formal charge against a person, to the effect that he is guilty of a punishable offense,” Black’s Law Dictionary 21 (5th ed. 1979), or a “charge of wrongdoing, delinquency, or fault,” Webster’s Third International Dictionary Unabridged 22 (2002). See Roy D. Simon, Simon’s New York Rules of Professional Conduct Annotated 230 (2013 ed.) (“An accusation means something more than just casual venting.”)

Comment [10] to Rule 1.6 supports this conclusion. It says that “[w]here a claim or charge alleges misconduct of the lawyer related to the representation of a current or former client, the lawyer may respond to the extent the lawyer reasonably believes necessary to establish a defense.” In the context of a set of legal standards, the words “claim” and “charge” typically suggest the beginning of a lawsuit, criminal inquiry, disciplinary complaint, or other procedure that can result in a sanction. Comment [10] continues by saying: “Such a claim may arise in a civil, criminal, disciplinary or other proceeding and can be based on a wrong allegedly committed by the lawyer against the client or on a wrong alleged by a third person, such as a person claiming to have been defrauded by the lawyer and client acting together or by the lawyer acting alone.” Each of these examples involves a formal proceeding in which the lawyer’s conduct has been placed in issue.



Case law supports our conclusion. New York cases permitting disclosure of confidential information under Rule 1.6(b)(5)(i) and its nearly identical predecessor DR 4-101(C)(4) have invariably involved allegations of lawyer wrongdoing in formal proceedings such as legal malpractice or other civil actions, disqualification proceedings, or sanctions motions. Those cases stand in contrast to those in which lawyers have not been permitted to use a client’s confidential information to initiate actions against former clients (other than lawsuits to collect legal fees, for which Rule 1.6(b)(5)(ii) provides a different exception to confidentiality). Thus under the case law, a lawyer is not authorized to reveal confidential information whenever helpful in a dispute, but rather only when facing some kind of formal proceeding.

(Footnotes omitted.)57

The Committee concluded that informal contents made about the skills of a lawyer, whether in hallway chatter, a newspaper account, or a website, are an “inevitable incident” of the practice of law:

This result properly respects the vital purpose of Rule 1.6(a) in preserving client confidentiality and fostering candor in the private communications between lawyers and clients, and it does not unduly restrict the self-defense exception. That exception reflects the fundamental unfairness of a current or former client – or others – being able to make consequential accusations of wrongful conduct against a lawyer, while the lawyer is disabled from revealing information to the extent reasonably necessary to defend against such accusations. Unflattering but less formal comments on the skills of lawyers, whether in hallway chatter, a newspaper account, or a website, are an inevitable incident of the practice of a public profession, and may even contribute to the body of knowledge available about lawyers for prospective clients seeking legal advice. We do not believe that Rule 1.6(b)(5)(i) should be interpreted in a manner that could chill such discussion.58

The New York State Bar Ethics Committee referenced a matter in Illinois where a lawyer was disciplined for responding to a client’s negative review on Avvo. In re Tsamis, Joint Stipulation and Recommendation ¶¶ 4-10

57 The New York State Bar Ethics Committee added that if a material threat of a proceeding had been made on the website posting,

that might present a different case, but did not reach this question since the facts did not pose it. The Committee also did not consider the question of “whether and when a negative website posting may effect a waiver of a client’s right to confidentiality,” because that question was also not raised by the facts as presented in the inquiry.

58 In a footnote, the New York State Bar Ethics Committee described opinions from California and Arizona: “In California there is no ethical counterpart to New York Rule 1.6(b)(5)(i), but the Evidence Code contains a self-defense exception to attorney-client privilege. Opinions interpreting that exception have concluded that California law does not permit a lawyer “to disclose otherwise confidential information in an online attorney review forum, absent client consent or a waiver.” San Francisco Opinion 2014-1; see Los Angeles County Opinion 525 (2012) (attorney may respond to former client’s internet posting if (1) “response does not disclose confidential information”; (2) response will not injure former client in matter involving the former representation; and (3) response is proportionate and restrained). The Arizona opinion concluded that the right to disclose was not limited to “a pending or imminent legal proceeding”: “We do not believe that the right to disclose is limited to a pending or imminent legal proceeding. Instead, an attorney may disclose confidential information pursuant to ER 1.6(d) when the client’s allegations against him or her are of such a nature that they constitute a genuine controversy between the attorney and the client which could reasonably be expected to give rise to legal or disciplinary proceedings.” The facts in issue satisfied this standard: “We believe that the assertions made against the attorney by the former client to the effect that he acted incompetently, refused to follow instructions, failed to call certain witnesses, and engaged in a conspiracy with the prosecution to ensure his conviction, are sufficient to establish a ‘controversy’ between the attorney and his former client.” http://www.azbar.org/Media/_Ethics/93-02.pdf.


& Reprimand ¶ 1, No. 2013PR00095 (Hearing Board, Ill. Att’y Reg. & Disc. Comm. 2014).59 The lawyer’s mistake? In her response, she revealed confidential information.

The matter involved retention of the lawyer to obtain unemployment benefits. The Illinois Department of Employment Security rejected the claim presented by the lawyer. Her client then terminated her. Her former client then posted a review on Avvo expressing his dissatisfaction with her legal services. The lawyer contacted her former client and asked him to remove the posting. He refused to do so unless he received a copy of this files and a refund of the $1,500 fee he had paid the lawyer. Instead, apparently acting on its own, Avvo removed the online review. But then the former client posted a second negative review on Avvo. The lawyer responded to the post and revealed confidential information about the case. The joint stipulation concluding the matter stated that the lawyer’s reply “exceeded what was necessary to respond” the former client’s accusations.60

The West Virginia Bar’s L.E.O. 2015-02 explained that attorneys “may comment on and respond to reviews or endorsements on social media or social networking websites” (negative or positive) but they “must be mindful not to disclose confidential information without the client’s consent.”

The D.C. Bar also addressed the response to a negative online review in its Ethics Opinion 370 (November 2016). It provides that, “Attorneys may respond to negative online reviews or comments from clients.” In considering this conclusion, it is important to note that the D. C. Bar’s version of Rule 1.6 is different from the Model Rule version. D.C. RPC 1.6(e) states that:

A lawyer may use or reveal client confidences or secrets:

(3) to the extent reasonably necessary to establish a defense to a criminal charge, disciplinary charge, or civil claim, formally instituted against the lawyer, based upon conduct in which the client was involved, or to the extent reasonably necessary to respond to specific allegations by the client concerning the lawyer's representation of the client.

(Emphasis added.)

The authors of the opinion then explained that, “Comment [25] to Rule 1.6 specifically excludes general criticisms of an attorney from the kinds of allegations to which an attorney may respond using information otherwise protected by Rule 1.6.” The comments to D. C. Bar RPC 1.6 also “caution that disclosures should be no greater than the lawyer reasonably believes are necessary.” And Ethics Opinion 370 expressly states that, “There is no exception in Rule 1.6 that allows an attorney to disclose client confidences or secrets in response to specific or general allegations regarding an attorney's conduct contained in an online review from a third party, such as opposing counsel or a non-client.” (Footnote omitted.) Referring to NYSBA Opinion 1032, the D. C. Bar Ethics Opinion writers noted that New York’s version of 1.6 uses the word “accusations” rather than “allegations,” and reminds readers that, “Attorneys licensed in the District of Columbia who are admitted to practice in multiple jurisdictions are cautioned that they may be subject to the disciplinary authority of both this jurisdiction and another jurisdiction where the lawyer is admitted for the same conduct.”

59

http://www.americanbar.org/content/dam/aba/events/professional_responsibility/2015/May/Conference/Materials/in_re_tsamis.authcheckdam.pdf.

60 The lawyer, Betty Tsamis, also issued a check for insufficient funds to a client. She was reprimanded for both offenses.


There are First Amendment implications, however, in considering the scope of Rule 1.6(a) when public information is in issue. The Virginia Supreme Court determined that a lawyer had a First Amendment right to publish in a blog information from a concluded criminal trial not protected by the attorney-client privilege without obtaining consent of the client. In Re Horace Frazier Hunter, 744 S.E.2d 611 (Va. 2013) cert. denied Hunter v. Va. State Bar, 133 S. Ct. 2871 (2013).

Virginia’s RPC 1.6(a) is different from Model Rule 1.6(a). It provides:

(a) A lawyer shall not reveal information protected by the attorney-client privilege under applicable law or other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client unless the client consents after consultation….

The Virginia State Bar’s “interpretation of Rule 1.6 involves two types of information,” according to the Court: “1) that which is protected by the attorney-client privilege, and 2) that which is public information but is embarrassing or likely to be detrimental to the client.” Id. at 619. Hunter was charged with “disseminating the later type of information.” Id. In response, Hunter argued “that the VSB's interpretation of Rule 1.6 is unconstitutional because the matters discussed in his blogs had previously been revealed in public judicial proceedings and, therefore, as concluded matters, were protected by the First Amendment.” That prompted the Virginia Supreme Court to frame the question presented thusly: “[W]e are called upon to answer whether the state may prohibit an attorney from discussing information about a client or former client that is not protected by attorney-client privilege without express consent from that client. We agree with Hunter that it may not.” Id.61

In its analysis, Virginia’s highest court first emphasized that the information did not relate to a pending proceeding: “It is settled that attorney speech about public information from cases is protected by the First Amendment, but it may be regulated if it poses a substantial likelihood of materially prejudicing a pending case.” Id. (citing Gentile v. State Bar of Nevada, 501 U.S. 1030, 1076 (1991)).

The court then emphasized the “presumption of openness” that is inherent in the “very nature of a criminal trial.” Id. at 619-20 (quoting from Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573 (1980). The court also cited Craig v. Harney, 331 U.S. 367, 374 (1947) for the proposition that a “trial is a public event” and “[w]hat transpires in the courtroom is public property.” Id. at 620. The VSB conceded “that all of the information that was contained within Hunter's blog was public information and would have been protected speech had the news media or others disseminated it.” Id. at 620

The Virginia Supreme Court then identified the standard it would follow in determining whether the restriction on speech was justified by the governmental interest:

61 While the Virginia Supreme Court made reference to “client or former client,” it did not consider the difference between Rule 1.6

and Rule 1.9. From the facts of the opinion, the blog postings related solely to former clients involved in criminal proceedings that were no longer pending. Model Rule 1.9 provides that, with respect to a former client, a lawyer shall not “use information relating to the representation, to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known.” Virginia’s RPC 1.9 is similar. It provides that with respect to a former client a lawyer “shall not thereafter: (1) use information relating to or gained in the course of the representation to the disadvantage of the former client except as Rule 1.6 or 3.3 would permit or require with respect to a client, or when the information has become generally known.” There was no discussion of Rule 1.9, or whether the blog postings represented the use of information relating to the representation “to the disadvantage of the former client,” or whether the information had become “generally knonw.”


[W]e are required to make our own inquiry into the imminence and magnitude of the danger said to flow from the particular utterance and then to balance the character of the evil, as well as its likelihood, against the need for free and unfettered expression." Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 843 (1978)

Id. Ominously for the VSB, the court added: “State action that punishes the publication of truthful information can rarely survive constitutional scrutiny.” Id. (citing Smith v. Daily Mail Pub. Co., 443 U.S. 97, 102 (1979)).

The VSB argued that “it can prohibit an attorney from repeating truthful information made in a public judicial proceeding even though others can disseminate this information because an attorney repeating it could inhibit clients from freely communicating with their attorneys or because it would undermine public confidence in the legal profession.” Id.

The court dispatched this argument because of a failure of proof: “Such concerns, however, are unsupported by the evidence.” Id.62

Without any evidence to support the Bar’s interest, the court concluded: “To the extent that the information is aired in a public forum, privacy considerations must yield to First Amendment protections. In that respect, a lawyer is no more prohibited than any other citizen from reporting what transpired in the courtroom.” Id.

There is substantial commentary that the Virginia Supreme Court erred in dismissing the VSB’s interest in ensuring that lawyers protect the sanctity of information learned in representing a client.63 Lawyers who rely on it may do so at their peril (1) since the case turned on a failure of proof and on text that varied from Model Rule 1.6(a), which has been adopted verbatim in quite a number of states, and (2) the court was focused only on information aired in a criminal trial that could have been reported on by the press suggesting that the information was, in effect, generally known. The court also failed to give any respect to the rights and concerns of Hunter’s former clients about the publication of information about their case and the impact that would have on them, suggesting that the record did not contain such facts, or that the impacts were not well developed in the evidence that was before the court.

To emphasize this point, in a disciplinary proceeding, the Presiding Disciplinary Judge from the Colorado Supreme acknowledged Hunter but did not follow it in granting summary judgment to the People on Isaac’s

62 The court did not discuss the evidence presented by the VSB. Apparently, there was argument but no evidence to support the

argument. One cannot assume that in future cases Bar disciplinary counsel will fail to generate factual and expert evidence on the important interests underlying Rule 1.6’s confidentiality provisions.

63 Jan L. Jacobowitz and Kelly Rains Jesson, Fidelity Diluted: Client Confidentiality Give Way to the First Amendment & Social Media in Virginia State Bar ex rel. Third District Committee v Horace Frazier Hunter, 36 Campbell L. Rev. 75 (2013). The authors point out that Hunter could had options. He could have obtained client consent. He “could write about his clients' real-life cases and still accomplish his commercial speech goals, as well as purported political speech goals, without including client names or detailed personal information,” as he had done. They argue that Hunter “could discuss the ramifications of having a client who has allegedly tested positive for cocaine and the various strategies for challenging the test and defending the case” by relying on comment 4 to Model Rule 1.6 which contemplates “an attorney's use of a hypothetical modeled from a real case” which is allowed “‘so long as there is no reasonable likelihood that the listener will be able to ascertain the identity of the client or situation the situation involved.’” Id. at 103-04 (footnote omitted). The authors then lament the fact that that “the Supreme Court of Virginia neither analyzed the alternatives of client consent or the use of hypotheticals, nor addressed the intrinsic value of maintaining client confidentiality as the sacrosanct characteristic of the attorney-client relationship.” Id. at 104 (footnote omitted). They then argue that these issues “remain critical to the ongoing discussion of client confidentiality and the role of the attorney in the digital age. The Internet affords tremendous opportunity to provide the public with access to legal information and to promote reform, but it also may be a vehicle to inflict unwarranted harm upon an individual client. Fidelity has been referred to as "the sister of justice," so it follows that when information that is embarrassing or detrimental to a client is posted on the Internet, thereby diluting the fidelity of the attorney-client relationship, our system of justice likewise suffers.” Id. (footnote omitted).


violations of Colorado RPC 1.6 (which is identical to Model Rule 1.6(a)) after he responded to a negative online review. Isaac was then suspended (by a hearing board presided over by the PDJ) from the practice of law for six months, among other sanctions imposed on him. People v. Isaac, 2016 Colo. Discipl. LEXIS 109 (Colo. Sept. 22, 2016).

Isaac was criticized by a former client who posted disparaging reviews on Google+. Isaac responded to the reviews and, in so doing, revealed information about the former client relating to the representation. Significantly, the PDJ said it was “irrelevant whether this information was already public: comment three to Colo. RPC 1.6(a) states that the rule ‘applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source.’” Id. at *8. The PDJ cited in a footnote to case law and an American Bar Association reference manual supporting this determination:

In re Anonymous, 654 N.E.2d 1128, 1129 (Ind. 1995) (concluding that a lawyer violated Rule 1.6 by disclosing information related to a client representation, even though the information "was readily available from public sources and not confidential in nature"); Lawyer Disciplinary Bd. v. McGraw, 194 W. Va. 788, 461 S.E.2d 850, 860 (W. Va. 1995) ("[t]he ethical duty of confidentiality is not nullified by the fact that the information is part of a public record or by the fact that someone else is privy to it"); In re Harman, 2001 WI 71, 244 Wis. 2d 438, 628 N.W.2d 351, 360-61 (Wis. 2001) (concluding that a lawyer's dissemination of a client's medical records without her consent violated client-lawyer confidentiality, even though those records had been made a part of a medical malpractice action); ABA Annotated Model Rules of Professional Conduct at 97 (noting that the scope of information subject to Rule 1.6 is "extremely broad" and that "Rule 1.6 contains no exception permitting disclosure of information previously disclosed or publicly available").

Id. at *8-9. Following these citations, the opinion then references Hunter but dismissed it with a reference to Comment 18 to Colo. RPC 1.6:

But see Hunter v. Va. State Bar ex rel. Third Dist. Comm., 285 Va. 485, 744 S.E.2d 611, 620 (Va. 2013) (ruling that the First Amendment prohibits "information [] aired in a public forum," including information in a judicial proceeding, from being deemed subject to Rule 1.6(a)). Colo. RPC 1.6 also applies after a lawyer-client relationship has terminated. Colo. RPC 1.6 cmt. 18.

Id. at *9.

In Virginia, under Hunter, assuming truthfulness, a lawyer can report in a blog information about a former client aired in a public trial.64 But as Isaac points out, that does not mean that in Colorado a lawyer may reveal truthful, public information protected from disclosure under Colorado RPC 1.6 to defend against an online review. And if the information is not available from a public trial, Hunter is immediately distinguishable. Isaac did not appear to have mounted a First Amendment defense, but if he had, the opinion in Isaac suggests that the interests protected by Rule 1.6 would still justify the restriction on a lawyer not to reveal information relating to the representation, even if it is public. It would seem imprudent for any lawyer to run the risk of

64 The Virginia Supreme Court in Hunter also concluded that Hunter’s blogs were advertising and required the posting of a

disclaimer consistent with Virginia’s advertising rules. I discuss that part of the opinion later in this paper.


sanction by making a response to a negative online review that includes truthful, public information in the hope that the lawyer can mount a successful First Amendment challenge to the sanction.

Let’s change the facts slightly. What if the reviewer is not a former client but another lawyer? Suppose a lawyer hosts or participates in a blog that publishes factually accurate criticism of another lawyer’s professional conduct? Is there an ethical prohibition? “No,” according to the NYSBA Ethics Opinion 912 (March 15, 2012).65

Here is the question that was presented: “May a lawyer host or participate in an internet blog established as a forum for lawyers to recount their experiences in dealing with an adversary whose past professional conduct is considered by them to have been unethical, harassing or abusive?” The Bar Committee explained that the only ethical restraint on “such expression” has to be derived from Rule 8.4(c), prohibiting conduct that involves dishonesty, fraud, deceit, or misrepresentation, or Rule 8.4(d) which prohibits conduct that is “prejudicial to the administration of justice.” Assuming accuracy, there would be no violation of Rule 8.4(c). And the Committee did not believe there was any limitation under Rule 8.4(d) on a “lawyer’s factually sustainable public criticism of another lawyer.”

However, the Committee added two observations. The first one related to “civility.” The “Standards of Civility” for the New York Uniform Court System provide that lawyers should avoid “disparaging personal remarks or acrimony towards other counsel.” They are aspirational, the Committee acknowledged, but they “elaborate a norm of acceptable behavior.” The second related to Rule 8.3(a), which imposes a reporting requirement on a lawyer who "knows that another lawyer has committed a violation of the Rules . . . that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer." The Committee explained that “[t]o the extent that the negative information to be published about an attorney's professional conduct is both significant and truthful, Rule 8.3(a) may require reporting such misconduct to a ‘tribunal or other authority empowered to investigate or act upon such violation.’”66

In Opinion 662 (August 2016), the Texas Center on Legal Ethics weighed in on responses to negative online reviews.67 Here are the facts: “A former client posted negative comments about a Texas lawyer on an internet review site. The lawyer believes that the client’s comments are false. The lawyer is considering posting a public response that reveals only enough information to rebut the allegedly false statements.” These were the questions presented: may the lawyer do so, and if so, what information may the lawyer disclose?

Because the Internet has become “an increasingly common source of referrals for legal services,” the Texas Bar Ethics Committee explained that “consumer reviews on various sites have assumed a greater importance for attorneys in recent years.” When a former client posts a negative review about a lawyer, “the lawyer’s duty of confidentiality limits the information the lawyer may reveal in a public response.” The Committee elaborated:

65 http://www.nysba.org/CustomTemplates/Content.aspx?id=4218. 66 The West Virginia Lawyer Disciplinary Board urged lawyers to conduct themselves as professionals while using social media and

social networking sites. L.E.O. 2015-02. While noting that comments on other attorneys or judges may not violate the West Virginia RPC, the Board “finds that attorneys should be cautious when commenting about other attorneys or judges via social media and social networking websites, and further advises that a better practice is simply to refrain from making such comments.” Later in the opinion, the Board invoked RPC 8.2 (“A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge….”) to caution lawyers not to make statements on social media or social networking websites that violate RPC 8.2 “when connecting directly with a judge or not.”

67 https://www.legalethicstexas.com/Ethics-Resources/Opinions/Opinion-662.aspx.


In general, Rule 1.05 of the Texas Disciplinary Rules of Professional Conduct defines the scope and extent of a Texas lawyer’s duty of confidentiality. Rule 1.05(a) broadly defines “confidential information” to include not only information protected by the lawyer-client privilege but also “all information relating to a client or furnished by the client, other than privileged information, acquired by the lawyer during the course of or by reason of the representation of the client.”

A lawyer may not publicly reveal the confidential information of a former client unless expressly permitted by an exception stated in Rule 1.05. Absent an applicable exception found in Rule 1.05, a lawyer may not post a response to a negative review that reveals any information protected by the lawyer-client privilege, or otherwise relating to a client or furnished by the client, or acquired by the lawyer during the course of or by reason of the representation of the client. This is true even though the information may have become generally known. Compare Rule 1.05(b)(3) (allowing lawyer to use confidential information to the disadvantage of a former client after the information has become generally known) with Rule 1.05(b)(1) (generally prohibiting revelation of confidential information absent an applicable exception).

There is not an exception in Rule 1.05 that “allows a lawyer to reveal information in a public forum in response to a former client’s negative review.” The Committee observed that the only exceptions potentially applicable to the facts presented in this opinion appear in Rule 1.05(c) and (d) but none of them was applicable.68

Hence, the Committee concluded that a lawyer may post a response to a former client’s negative review “so long as the response is proportional and restrained and does not reveal confidential information or violate any other provision of the Texas Disciplinary Rules.”69

California does not follow the Model Rules but there are two city bar opinions that reach a result similar to the Model-Rule-based opinions discussed above. In Opinion 2014-1,70 the Bar Association of San Francisco was presented with the propriety of a response to a review posted on an online attorney-rating forum. The review did not disclose any confidential information but made general statements that the attorney mismanaged the client’s case, did not communicate appropriately with the former client, provided sub-standard advice and was incompetent. The inquiring attorney wanted to make a robust response defending the attorney’s conduct in every aspect of the online review, thereby disclosing confidential information. The ethics committee

68 Rule 1.05(c) allows a lawyer to reveal confidential information: “(5) To the extent reasonably necessary to enforce a claim or

establish a defense on behalf of the lawyer in a controversy between the lawyer and the client; (6) To establish a defense to a criminal charge, civil claim or disciplinary complaint against the lawyer or the lawyer’s associates based upon conduct involving the client or the representation of the client.” Rule 1.05 (d) allows a lawyer to reveal unprivileged client information: “ (2) When the lawyer has reason to believe it is necessary to do so in order to: (ii) defend the lawyer or the lawyer’s employees or associates against a claim of wrongful conduct; (iii) respond to allegations in any proceeding concerning the lawyer’s representation of the client; or (iv) prove the services rendered to a client, or the reasonable value thereof, or both, in an action against another person or organization responsible for the payment of the fee for services rendered to the client.”

69 The Committee endorsed the suggested response contained in Pennsylvania Bar Association Formal Ethics Opinion 2014-200 (2014) quoted above, saying it would not violate the Texas Disciplinary Rules.

70 http://www.sfbar.org/ethics/opinion_2014-1.aspx.


emphasized that under California law, a lawyer owes a duty of loyalty to former client71 as well as a duty of confidentiality under Bus. & Prof. C. § 6068(e) and California RPC 3-100,72 but that, unlike Model Rule 1.6, California’s rules of professional conduct “do not have an express exception to the duty of confidentiality that permits a lawyer to disclose otherwise confidential information in disputes with a client or former client.” After determining that there was no basis to permit disclosure of confidential information under California’s evidence code, the ethics committee concluded that no such information could be disclosed in response absent “client consent or a waiver,” but that the attorney was not barred from “responding generally” to the review.73

The San Francisco Bar relied on Formal Opinion 525 of the Los Angeles County Bar Association Professional Responsibility and Ethics Committee.74 There, a former client posted “a message on a website discussing lawyers, stating that Attorney was incompetent and over-charged him, and others should refrain from using Attorney.” The former client did not disclose confidential information and there was no litigation or arbitration pending between the lawyer and the former client. The ethics committee concluded that the lawyer could make a public response as long as the response did not disclose confidential information, did not injure the client with respect to the subject matter of the representation and was “proportionate and restrained.”75

The ABA Standing Committee on Ethics and Professional Responsibility has not directly addressed whether the self-defense exception in Model Rule 1.6(b)(5) permits disclosure of confidential information to respond to a negative online review. However, Formal Opinion 10-45676 suggests that the Standing Committee would reach a result similar to those reached by the state bar ethics committees. The question presented was whether a lawyer could respond to a prosecutor’s request for information where the lawyer’s former client had filed a writ of habeas corpus claiming that the lawyer provided ineffective assistance of counsel in defending the

71 “After conclusion of the attorney-client relationship, an attorney continues to owe a residual duty of loyalty to a former client, which

is narrow in scope. See Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821 (the duty of loyalty continues after termination of the attorney-client relationship to the extent that a lawyer may not act in a manner that will injure the former client with respect to the matter involved in the prior representation); see also Wutchumna Water Co. v. Bailey (1932) 216 Cal. 564, 573-574 (‘[A]n attorney is forbidden to do either of two things after severing his relationship with a former client. He may not do anything which will injuriously affect his former client in any matter in which he formerly represented him, nor may he at any time use against his former client knowledge or information acquired by virtue of the previous relationship.’).”

72 “In California, the duty of confidentiality is codified in the State Bar Act (Cal. Bus. & Prof. C. §6000 et seq.) and embodied in the California Rules of Professional Conduct (‘CRPC’), Rule 3-100. Pursuant to Bus. & Prof.C. §6068(e) an attorney must ‘maintain inviolate the confidence, and at every peril to himself or herself [] preserve the secrets, of his or her client.’ See also Rule 3-100(A) (‘A member shall not reveal information protected from disclosure by Business & Professions Code section 6068, subdivision (e)(1) without the informed consent of the client, or as provided in paragraph (B) of this rule.’)”

73 “Attorney is not barred from responding generally to an online review by a former client where the former client's matter has concluded. Although the residual duty of loyalty owed to the former client does not prohibit a response, Attorney's on-going duty of confidentiality prohibits Attorney from disclosing any confidential information about the prior representation absent the former client's informed consent or a waiver of confidentiality. California's statutory self-defense exception, as interpreted by California case law, has been limited in application to claims by a client (against or about an attorney), or by an attorney against a client, in the context of a formal or imminent legal proceeding. Even in those circumstances where disclosure of otherwise confidential information is permitted, the disclosure must be narrowly tailored to the issues raised by the former client. If the matter previously handled for the former client has not concluded, it may be inappropriate under the circumstances for Attorney to provide any substantive response in the online forum, even one that does not disclose confidential information.”

74 http://www.lacba.org/docs/default-source/ethics-opinions/archived-ethics-opinions/ethics-opinion-525.pdf. 75 The Illinois Supreme Court established a Commission on Professionalism to foster civility, professionalism, and inclusiveness

among lawyers and judges. The Commission has posted a commentary on how lawyers should respond to negative online reviews. https://www.attorneyatwork.com/how-to-respond-to-negative-online-attorney-reviews/ (April 25, 2017) (either do nothing or if you do something, be proportionate, restrained, and sincere and show a response to at least two independent reviewers as a check-and-balance exercise before deciding to post a response).

76 http://www.americanbar.org/content/dam/aba/migrated/2011_build/professional_responsibility/ethics_opinion_10_456.authcheckdam.pdf.


former client. The Standing Committee concluded that a response to the prosecutor was not likely to be justifiable:

Although an ineffective assistance of counsel claim ordinarily waives the attorney-client privilege with regard to some otherwise privileged information, that information still is protected by Model Rule 1.6(a) unless the defendant gives informed consent to its disclosure or an exception to the confidentiality rule applies. Under Rule 1.6(b)(5), a lawyer may disclose information protected by the rule only if the lawyer “reasonably believes [it is] necessary” to do so in the lawyer’s self-defense. The lawyer may have a reasonable need to disclose relevant client information in a judicial proceeding to prevent harm to the lawyer that may result from a finding of ineffective assistance of counsel. However, it is highly unlikely that a disclosure in response to a prosecution request, prior to a court-supervised response by way of testimony or otherwise, will be justifiable.

TWEETING FOR CLIENTS

Hypothetical No. 10

You prepare press releases on your recent successes as a lawyer. You send tweets to potential clients to alert them about the press releases.

What ethical issues, if any, do you see by this practice?


Twitter The New York State Bar Committee on Professional Ethics addressed solicitation of clients via Twitter in its Opinion 1009 (May 21, 2014).77 Two questions were presented:

(1) If a law firm issues press releases to inform potential clients of new investigations or actions, and sends “tweets” to alert recipients to the press releases, then are the press releases and tweets “advertisements” governed by Rule 7.1, and if so, (a) must copies be retained for one year or three years; and (b) must the tweets be labeled “attorney advertising”?

(2) Are such press releases and tweets “solicitations” governed by Rule 7.3, and if so, (a) must copies be filed with the attorney disciplinary committee, and (b) are the tweets a permissible form of solicitation?

The Committee determined that under New York’s RPC 7.1 the press releases and tweets were designed to secure clients and therefore they were advertisements under New York’s RPC. As advertising, the releases and tweets were subject to pre-approval and retention requirements (three years for the press releases and one year for the tweets because they were regarded as computer-accessed communications under NY RPC 7.1(k)

77 https://www.nysba.org/CustomTemplates/Content.aspx?id=49755.


and 1.0(c)). The tweets had to include the “Attorney Advertising” label required by NY RPC 7.1(f) since they did not fall within any exemptions to that rule.

NY RPC 7.3(b) addresses solicitation, which it defines in pertinent part as:

any advertisement [1] initiated by or on behalf of a lawyer or law firm [2] that is directed to, or targeted at, a specific recipient or group of recipients, or their family members or legal representatives, [3] the primary purpose of which is the retention of the lawyer or law firm, and [4] a significant motive for which is pecuniary gain.

The Committee determined that the tweets fell within this definition but that the tweets did not violate NY RPC 7.3(a)(1), which prohibits solicitation, “by in-person or telephone contact, or by real-time or interactive computer-accessed communication unless the recipient is a close friend, relative, former client or existing client.” The Committee explained: “Our understanding is that the broadly distributed tweets contemplated here, as currently used and in contrast to instant messaging or chat rooms, generally do not involve live responses. In that sense the tweets are more like ordinary email or web site postings. Because the tweets should not be considered real-time or interactive communication, Rule 7.3 does not prohibit them.”

In Missouri, the Legal Ethics Counsel may issue opinions to attorneys for their own guidance. These “informal opinions” are not available to the public, but summaries of them are published. Missouri Bar Informal Opinion 2009-004078 presented this question: “May Attorney contact Potential Clients on Twitter? If Attorney views a post on Twitter asking for a recommendation for a lawyer, may Attorney respond?” The Bar prohibited the use of Twitter to contact potential clients: “It would be considered solicitation and be prohibited under Rule 4-7.3(b). Written solicitations to prospective clients may be sent only by regular Unites States mail. Additionally, Twitter only allows messages of 140 characters. The paragraph required by Rule 4-7.3(b)(3) exceeds 400 characters.”

The Florida Bar Standing Committee on Advertising’s “Guidelines for Networking Sites” (May 9, 2016) also address the use of Twitter. In pertinent part, the Guidelines provide that solicitations on Twitter are subject to the advertising regulations:

“Lawyers who post information to Twitter whose postings are generally accessible are subject to the lawyer advertising regulations.”

“A lawyer may post information via Twitter and may restrict access to the posts to the lawyer’s followers, who are persons who have specifically signed up to receive posts from that lawyer. If access to a lawyer’s Twitter postings is restricted to the followers of the particular lawyer, the information posted there is information at the request of a prospective client and is subject to the lawyer advertising rules, but is exempt from the filing requirement under Rule 4-7.20(e).”79

“Any communications that a lawyer makes on an unsolicited basis to prospective clients to obtain ‘followers’ is subject to the lawyer advertising rules, as with any other social media as noted above.”

78 http://www.mobar.org/uploadedFiles/Home/Publications/Precedent/2011/Summer/Informal%20Advisory%20Opinions.pdf. 79 Under Florida RPC 4-7.19, a lawyer who advertises services “shall file with The Florida Bar a copy of each advertisement at least

20 days prior to the lawyer’s first dissemination of the advertisement” unless an exemption under Rule 4-7.20 applies. One of the exemptions appears in Rule 4-7.20(e): “a written or recorded communication requested by a prospective client.” Subparagraph (g) also exempts “information contained on the lawyer’s Internet website(s).”


“Because of Twitter’s 140 character limitation, lawyers may use commonly recognized abbreviations for the required geographic disclosure of a bona fide office location by city, town or county as required by Rule 4-7.12(a).”80

LinkedIn The New York City Bar Ethics Committee decided to tackle a variation on the hypothetical: does the use of LinkedIn in and of itself represent attorney advertising or solicitation for clients? The answer given was “no,” but not without caveats. Opinion 2015-7 (November 2015).81

The Committee explained that under New York’s RPC, an attorney’s LinkedIn profile and other content,

must meet all five of the following criteria: (a) it must be made by or on behalf of the lawyer; (b) its primary purpose must be for the retention of the lawyer by new clients for pecuniary gain; (b) the LinkedIn content must relate to the legal services offered by the lawyer; (c) its intended audience must be potential new clients; and (d) the LinkedIn content must not fall within a recognized exception or exclusion to the definition of attorney advertising.

As to the first criterion, the Committee acknowledged that most LinkedIn content is created and posted by the lawyer and thus would be “by or on behalf of the lawyer.” There are two categories of LinkedIn content, however, that are “arguably” generated by third parties. The first is “Endorsements,” and the second is “Recommendations.” The former is done by someone other than the lawyer. But on LinkedIn, unlike Avvo, a member can control the appearance of a negative rating. Referring to Opinion 1052 discussed above (allowing a lawyer to offer a client a $50 incentive to rate and review the lawyer on Avvo), the Committee explained:

LinkedIn gives the attorney power to hide Recommendations, making it highly unlikely that a LinkedIn profile will contain a negative or even a neutral review. The Committee’s conclusion in Opinion 1052 – that ratings and reviews are not made “by or on behalf of the lawyer” – was based on the fact that the client was free to give a negative, positive, or neutral rating or review, which is not the case for LinkedIn Endorsements and Recommendations. On that basis, we distinguish Opinion 1052, and conclude that LinkedIn Endorsements and Recommendations constitute communications made “by or on behalf of the lawyer.”

As for the primary purpose of the LinkedIn profile or content, the Committee accepted the premise that a communication can have several purposes but only one primary purpose.82 But is the primary purpose determination made from the standpoint of the attorney or objectively? New York’s RPCs do not provide guidance on the answer to this question, the Committee explained, and prior ethics opinions “tend to gloss over this threshold question.” After surveying the ethics-opinion landscape, the Committee concluded that the “primary purpose” standard “refers to the subjective intent of the lawyer who makes the communication, but

80 Florida RPC 4-7.12(a) provides that, “All advertisements for legal employment must include: (1) the name of at least 1 lawyer, the

law firm, the lawyer referral service if the advertisement is for the lawyer referral service, or the lawyer directory if the advertisement is for the lawyer directory, responsible for the content of the advertisement; and (2) the city, town, or county of 1 or more bona fide office locations of the lawyer who will perform the services advertised.”

81 http://www.nycbar.org/member-and-career-services/committees/reports-listing/reports/detail/formal-opinion-2015-7-application-of-attorney-advertising-rules-to-linkedin.

82 The Committee explained: “As Professor Simon notes in his treatise on the New York Rules, ‘a communication can have several significant or substantial purposes but only one ‘primary’ purpose.’ Roy D. Simon, Simon’s New York Rules of Professional Conduct Annotated, 25 (2015 ed.).”


that this intent may be inferred – at least in certain instances – from other factors, including the content of the communication and the audience for the communication.”

However, the Committee was quick to add, “It should not be presumed that an attorney who posts information about herself on LinkedIn necessarily does so for the primary purpose of attracting paying clients.” The Committee elaborated:

Whether that is her primary purpose depends on how she uses LinkedIn, who her Connections are, and what type of information she posts. We also cannot ignore the relevance of the type of platform LinkedIn is and its effectiveness as an advertising tool. Social networking websites are – if used for business development at all – primarily a form of indirect marketing. In light of this objective reality, it is likely that many attorneys who use LinkedIn have purposes that are not primarily about attracting paying clients. A lawyer’s objectives in using LinkedIn may include, among other things:

Networking with college and law school classmates, former co-workers, other colleagues;

Networking with current or former clients;

Networking with people who have similar interests;

Tracking the career developments of friends and colleagues;

Sharing the lawyer’s own career developments with LinkedIn Connections;

Keeping up-to-date on developments in the lawyer’s practice areas or other areas of interest;

Publishing and sharing articles, blog posts, or other content relating to the lawyer’s practice areas or interests;

Maintaining a dynamic online “resume”;

Job searching;

Having a digital substitute for a traditional business card;

Enhancing the lawyer’s “brand” or reputation; and

Publicizing the lawyer’s expertise and availability for speaking engagements, press interviews, articles, and other opportunities to expand her reputation as an expert on a particular subject matter.

In light of these many possible uses, the Committee said there should be “clear evidence” of a lawyer’s primary purpose.83 The Committee then declared that they differed “sharply” from Opinion 748 issued by the Professional Ethics Committee of the New York County Lawyer’s Association (“NYCLA”) on March 10,

83 Since “subjective intent” must be demonstrated to establish the “primary purpose,” it is not clear from the opinion what clear

evidence of subjective intent should consist of.


2015.84 According to the Committee, that opinion concluded that “if an attorney chooses to include information such as practice areas, skills, endorsements, or recommendations, the attorney must treat his or her LinkedIn profile as attorney advertising and include appropriate disclaimers pursuant to Rule 7.1.” The City Bar Ethics Committee explained its disagreement:

This conclusion focuses exclusively on the content of a LinkedIn profile, and ignores the other factors that must be considered in determining whether a communication is an “advertisement,” such as the primary purpose of the communication and the intended audience. Including a list of “Skills” or a description of one’s practice areas, without more, is not an advertisement. Likewise, displaying Endorsements and Recommendations can have several purposes, beyond the goal of attracting paying clients. Accordingly, the inclusion of Endorsements or Recommendations does not, without more, make the lawyer’s LinkedIn profile an “advertisement.”

Attorneys must ensure that all information in their LinkedIn profiles is truthful and not misleading, including endorsements and recommendations written by other LinkedIn users. If an attorney believes an endorsement or recommendation is not accurate, the attorney should exclude it from his or her profile. New York lawyers should periodically monitor and review the content of their LinkedIn profiles for accuracy.

As for the third criterion – whether profile or other content relate to the lawyer’s legal services – the answer depends on how much information the lawyer places on LinkedIn, the Committee explained. If it is just “biographical and employment information,” the Committee said it “does not relate to the legal services offered by the lawyer.” Other content also would not satisfy this criterion. Specifically,

status updates, blog posts, or articles about legal developments or other topics, which a lawyer posts or shares on LinkedIn, do not relate to her legal services. See NYSBA Ethics Op. 1062 (2015) (“Materials may not be considered advertising as defined in Rule 1.0(a) if they are ‘topical newsletters, client alerts, or blogs intended to educate recipients about new developments in the law’”); N.Y. State 967 (2013) (blog written by an attorney is not an “advertisement” if the primary purpose of the blog is not retention of the attorney). Thus, if an attorney links to an article or blog post or directly publishes content through LinkedIn’s “Pulse” feature, those activities would not be communications related to the lawyer’s services. Likewise, online discussions with other LinkedIn members, including postings to a LinkedIn Group, are not related to the lawyer’s legal services, even if the subject matter relates to one of her practice areas.

However, the lawyer could cross the “advertisement” line with respect to this criterion if other content was added. The Committee gave these examples:

84 https://www.nycla.org/sitefiles/publications/publications1748_0.pdf. The digest of the Opinion 748 states in pertinent part:

“Attorneys may maintain profiles on LinkedIn, containing information such as education, work history, areas of practice, skills, and recommendations written by other LinkedIn users. A LinkedIn profile that contains only one’s education and current and past employment does not constitute Attorney Advertising. If an attorney includes additional information in his or her profile, such as a description of areas of practice or certain skills or endorsements, the profile may be considered Attorney Advertising, and should contain the disclaimers set forth in Rule 7.1. Categorizing certain information under the heading ‘Skills’ or ‘Endorsements’ does not, however, constitute a claim to be a ‘Specialist’ under Rule 7.4, and is accordingly not barred, provided that the information is truthful and accurate.”


On the other hand, if the lawyer includes additional information, such as a description of her practice areas or a list of Skills that are relevant to her legal practice, that content would relate to the lawyer’s legal services and would, thus, meet this third element of the definition of “advertisement.” Displaying an Endorsement of a Skill that is relevant to a lawyer’s legal practice would also meet this criteria. For example, if a lawyer displays an endorsement for “litigation” or “matrimonial” or “appeals,” that is information that relates to her legal services. On the other hand, an endorsement for “writing” or “public speaking” or “technology” does not necessarily relate to her legal services and may not fulfill that element of the definition. Likewise, a Recommendation from a client or colleague that describes a positive experience working with the lawyer or touts her legal prowess would meet this criteria, because it relates to the lawyer’s legal services. But a Recommendation that describes the lawyer’s commitment to public service, social justice or volunteerism does not relate to the legal services offered by the lawyer to clients.

The fourth criterion focuses on the intended audience for the lawyer’s LinkedIn profile or other content. The Committee described the following factors as relevant to this assessment:

Who are the lawyer’s LinkedIn Connections and how active is she in expanding her list of Connections? Is the lawyer connected primarily to friends, family members, other lawyers, and/or current or former clients, or does she have a significant number of Connections who are potential new clients for her legal services? Does she actively seek out new Connections with individuals who may be potential clients and request introductions from her Connections to those types of individuals?

What types of LinkedIn Groups does the lawyer join and how active is she? Does the lawyer belong to LinkedIn Groups that are likely to include a significant proportion of potential clients for her legal services, and does she interact regularly with other members of those Groups?

What elements of her LinkedIn profile are visible to the public? Do the lawyer’s privacy settings allow members of the public to view profile information that appears designed to attract new clients, such as detailed descriptions of her practice areas and Recommendations relating to her legal services, or are these features restricted to her Connections?

The Committee elaborated. If the lawyer “generally limits her Connections to other lawyers, friends, family, current clients or former clients, or if she is not particularly active in trying to expand her list of Connections, these may be indications that she does not use LinkedIn primarily as a tool to attract new business.” In addition, “if she is not a member of any Groups that target her potential client base or she is not particularly active in such Groups, that may also suggest a lack of intent to advertise her services to potential clients.” Finally, “Although not dispositive, a lawyer’s privacy settings may be an indication of whether she intends her profile to be found by potential clients who are searching for an attorney online.”

The last criterion asks whether the Does the LinkedIn profile or other content fall into a recognized exception to the definition of “advertisement.” New York’s RPCs contain these exceptions, the Committee explained:

• It is a communication with another lawyer or an existing client;


• It is a communication with a former client that is germane to the former representation;

• It is a communication in response to an inquiry from a potential client regarding the lawyer’s services;

• It constitutes general marketing or branding, the purpose of which is to raise awareness about the lawyer’s services, rather than retention of the lawyer for a particular matter; or

• It consists of topical or educational information, including information about legal developments in the lawyer’s practice area, unless it expressly encourages retention of the lawyer.

If the LinkedIn profile and other content constitute attorney advertising, the Committee outlined some of the lawyer’s obligations under New York’s RPCs relating to advertising.

First, the lawyer “must include the language ‘Attorney Advertising.’” But where on LinkedIn should this label appear? The Committee concluded that the attorney should decide:

In the absence of a specific rule, therefore, we conclude that the attorney should use reasonable judgment as to where to place the required language, provided it is “clearly legible and capable of being read by the average person.” R. 7.1(i). One option is to include the language in the “Summary” section of the LinkedIn profile. Alternatively, if the communication that constitutes an “advertisement” is contained in a specific update, post or message (and not in the attorney’s LinkedIn profile itself), the “Attorney Advertising” label may be placed in that update, post or message. The attorney is not required to post a general “Attorney Advertising” label on her LinkedIn profile in that situation.

Second, any attorney advertisement must include the name, principal law office address, and telephone number of the lawyer under New York RPC 7.1(h). This information likely already appears on the LinkedIn profile, but if it does not, it can be placed in any section of the profile “provided it meets the legibility requirements discussed above.”

Third, the Committee endorsed pre-approval of the content even if the LinkedIn profile and content do not represent advertising:

All advertising content on LinkedIn must be “pre-approved” by the lawyer. R. 7.1(k). This is a good policy to follow, even if the LinkedIn content does not fall within the definition of an “advertisement.” Lawyers should never rely on marketing professionals or other nonlawyers to approve advertising content without independently reviewing it to ensure that it complies with the advertising rules.

R. 1.0(c).


Fourth, the advertising rules (New York RPC 7.1(k)) contain a retention requirement of one year for a “computer-accessed communication.”85 The Committee concluded that if a LinkedIn profile or content is deemed an “advertisement,” they are computer-accessed communications and “need only be retained by the lawyer for one year from the date of initial publication.” As to the requirement in New York RPC 7.1(k) that requires the contents of a website that represent an advertisement to be preserved at various points (upon publication, for any major website redesign or meaningful content change, but “in no event less frequently than once every 90 days”), the Committee felt it did not apply to individual profiles on LinkedIn in most circumstances:

In our view, this requirement does not apply to individual profiles on LinkedIn, except in the rare circumstance where an attorney’s entire profile constitutes an “advertisement.” Provided any specific advertisements posted on LinkedIn are preserved for at least one year, as discussed above, there is no separate requirement to preserve the LinkedIn profile on a regular basis.

The final criterion -- avoidance of false, deceptive, or misleading communications – exists whether the LinkedIn profile or content is an advertisement since Rule 8.4(c) prohibits lawyers from engaging in conduct

involving dishonesty, fraud, deceit or misrepresentation.

The Florida Bar’s Standing Committee on Advertising’s “Guidelines for Networking Sites” (May 9, 2016) address summarily pages on networking sites used to promote the lawyer or a law firm’s practice by stating that they are subject to advertising rules:

“Pages appearing on networking sites that are used to promote the lawyer or law firm’s practice are subject to the lawyer advertising rules.”

o “Regulations include prohibitions against any misleading information, which includes references to past results that are not objectively verifiable, predictions or guaranties of results, and testimonials that fail to comply with the requirements listed in Rule 4-7.13(b)(8).”86

o “Regulations also include prohibitions against statements characterizing skills, experience, reputation or record unless they are objectively verifiable.”

“Invitations sent directly from a social media site via instant messaging to a third party to view or link to the lawyer’s page on an unsolicited basis for the purpose of obtaining, or attempting to obtain, legal

85 Under New York RPC 1.0(c), a computer-accessed communication is one that is disseminated through “the use of a computer or

related electronic device, including but not limited to, web sites, weblogs, search engines, electronic mail, banner advertisements, pop-up and pop-under advertisements, chat rooms, list servers, instant messaging, or other internet presences, and any attachments or links related thereto.”

86 Rule 4-7.13(b)(8) provides that, “Deceptive or inherently misleading advertisements include, but are not limited to advertisements that contain: (8) a testimonial: (A) regarding matters on which the person making the testimonial is unqualified to evaluate; (B) that is not the actual experience of the person making the testimonial; (C) that is not representative of what clients of that lawyer or law firm generally experience; (D) that has been written or drafted by the lawyer; (E) in exchange for which the person making the testimonial has been given something of value; or (F) that does not include the disclaimer that the prospective client may not obtain the same or similar results.”


business must meet the requirements for written solicitations under Rule 4-7.18(b),87 unless the recipient is the lawyer’s current client, former client, relative, has a prior professional relationship with the lawyer, or is another lawyer. Any invitations to view the page sent via e- mail must comply with the direct e-mail rules if they are sent to persons who are not current clients, former clients, relatives, other lawyers, persons who have requested information from the lawyer, or persons with whom the lawyer has a prior professional relationship.”

The Guidelines do not require that pages on a networking site be filed with The Florida Bar because such pages are “sufficiently similar to a website of a lawyer or law firm” which are exempt from advertising requirements. However, a banner advertisement posted by a lawyer on a social networking site is subject to the advertising regulations and must be filed for review unless the content of the advertisement is limited to the safe harbor information listed in Rule 4-7.16.88

In its discussion of sites like LinkedIn, the West Virginia Bar ethics committee pithily set forth these requirements in its L.E.O. 2015-02: “Attorneys (1) should monitor their social networking sites: (2) must verify the accuracy of the information posted on their social networking sites; (3) and must remove or correct any inaccurate endorsements.” These obligations “exist regardless of whether the information is posted by the attorney, a client, a former client or a professional colleague.” And attorneys “should be mindful not to post and/or to allow information to be posted to their social networking websites that violates Rule 7.1. For example, if an attorney is endorsed for his or her litigation skills but his or her practice is limited to transactional work, the attorney must remove the inaccurate endorsement.”

One can expect different Bar ethics committees to reach different views on the relationship of LinkedIn profiles and other content to advertising rules. Therefore, lawyers must be mindful of the advertising RPC and interpretations of them in the jurisdictions that govern their conduct.

87 Rule 4-7.18(b)(2) provides that a permissible solicitation must satisfy the advertising regulations and includes several other

requirements, including: (1) “If the written communication is sent via electronic mail, the subject line must begin with the word ‘Advertisement.’” (2) “Every written communication must be accompanied by a written statement detailing the background, training and experience of the lawyer or law firm.” (3) If a contract for representation is mailed with the written communication, “the top of each page of the contract must be marked “SAMPLE” in red ink in a type size one size larger than the largest type used in the contract and the words “DO NOT SIGN” must appear on the client signature line.” (4) “The first sentence of any written communication prompted by a specific occurrence involving or affecting the intended recipient of the communication or a family member must be: ‘If you have already retained a lawyer for this matter, please disregard this letter.’” (5) Written communications “must not be made to resemble legal pleadings or other legal documents.” (6) If a lawyer other than the lawyer whose name or signature appears on the communication “will actually handle the case or matter, or if the case or matter will be referred to another lawyer or law firm, any written communication concerning a specific matter must include a statement so advising the client.”” (7) Any written communication prompted by a specific occurrence involving or affecting the intended recipient of the communication or a family member must disclose how the lawyer obtained the information prompting the communication. The disclosure required by this rule must be specific enough to enable the recipient to understand the extent of the lawyer’s knowledge regarding the recipient’s particular situation.” The requirements set forth in Rule 4.-18(b)(2) do not apply to communications between lawyers, between lawyers and their own current and former clients, or between lawyers and their own family members.

88 Under Florida RPC 4-7.16 a lawyer does not violate the Florida Bar advertising regulations if the lawyer includes any of the following in advertisements and unsolicited communications: (1) the name of the lawyer or law firm or lawyers in the firm, office locations, parking arrangements, disability accommodations, telephone numbers, website addresses, and email addresses and telephone service hours; (2) dates of admission to The Florida Bar and any other bars, and credentials and former work experience of the lawyer; (3) technical and professional licenses granted by state or other recognized licensing authorities and education degrees received, including dates and institutions; (4) military service; (5) foreign language ability; (6) fields of law in which the lawyer practices; (7) prepaid or group legal service plans in which the lawyer participates; (8) acceptance of credit cards; (9) fee for initial consultation and fee schedule; (10) common salutary language (“best wishes,” “good luck,” “happy holidays”); (11) punctuation marks and common typographical marks; (12( an illustration of the scales of justice, a gavel, traditional renditions of Lady Justice, the Statue of Liberty, the American flag, the American eagle, the State of Florida flag, an unadorned set of law books, the inside or outside of a courthouse, columns, diplomas, or a photograph of the lawyer or lawyers against a plain background.


Internet Chat Rooms The Florida Bar’s Standing Committee on Advertising issued its Advisory Opinion A-00-1 (January 29, 2016)89 that determined that a lawyer may solicit prospective clients through Internet chat rooms only if the lawyer complies with the Florida RPC that address direct written communications and files unsolicited communications with The Florida Bar for review. The opinion also provides that lawyers may respond to “specific questions posed to them in chat rooms but should be cautious not to inadvertently form attorney-client relationships with computer users.”90

Advisory Opinion A-00-1 is not binding. However, it is informative. It summarizes the opinions of other Bar ethics committees which determined that a chat room conversation about the lawyer’s services was a solicitation:

Michigan Opinion RI-276 (July 11, 1996)91 determined, according to the Board of Governors, that “email communications were akin to direct mail communications,” but, now quoting from the opinion, a “different situation arises if a lawyer is participating in interactive communication on the Internet, carrying on an immediate electronic conversation. If the communication was initiated by the lawyer without invitation, such ‘real time’ communications about the lawyer's services would be analogous to direct solicitations, outside the activity permitted by MRPC 7.3.”

West Virginia Lawyer Disciplinary Board Opinion 98-0392: “The Board is of the opinion that solicitations via real time communications on the computer, such as a chat room, should be treated similar to telephone and in-person solicitations. Although this type of communication provides less opportunity for an attorney to pressure or coerce a potential client than do telephone or in-person solicitations, real time communication is potentially more immediate, more intrusive and more persuasive than e-mail or other forms of writing. Therefore, the Board considers Rule 7.3(a) to prohibit a lawyer from soliciting potential clients through real-time communications initiated by the lawyer.”

Utah State Bar's Ethics Advisory Opinion Committee 97-1093: An attorney's use of a chat room for advertising and solicitation “are considered to be in person communications for the purposes of its Rule 7.3(a) and, thus, restricted by that rule.”

Virginia State Bar Advertising Committee's Lawyer Advertising Opinion A-011094 reached the same result as the Utah State Bar’s Ethics Committee.

It then identified two opinions where the opposite result was reached. The Philadelphia Bar Association in Opinion 98-695 wrote: “In the opinion of the Committee, conversation interactions with persons on the Internet do not constitute improper solicitation, but in any one particular case the interaction may evolve in such a way that it could be characterized as such.”

89 https://www.floridabar.org/tfb/tfbetopin.nsf/SearchView/ETHICS,+OPINION+A-00-1+Revised?opendocument. 90 The potential for the formation of an attorney-client relationship is discussed separately below. 91 https://www.michbar.org/opinions/ethics/numbered_opinions?OpinionID=1146&Type=2. 92 http://www.wvodc.org/pdf/lei/Chronologic/LEI-98-03.pdf. 93 https://www.utahbar.org/ethics-advisory-opinions/opinions-published-in-1997/eaoc-97-10/. 94 http://www.vsb.org/docs/committees/advertising/a110.htm. 95 http://www.philadelphiabar.org/page/EthicsOpinion98-6?appNum=1.


And the Illinois State Bar Association Ethics Opinion 96-1096 reached the same conclusion also with a qualification:

The Committee does not believe that merely posting general comments on a bulletin board or chat room should be considered solicitation. However, if a lawyer seeks to initiate an unrequested contact with a specific person or group as a result of participation in a bulletin board or chat group, then the lawyer would be subject to the requirements of Rule 4-7.3. For example, if the lawyer sends unrequested electronic messages (including messages in response to inquiries posted in chat groups) to a targeted person or group, the messages should be plainly identified as advertising material.

Referencing these opinions, the Board of Governors of The Florida Bar explained that it was not persuaded by the reasoning of opinions of other states that conclude that mere participation in a chat room is a form of prohibited solicitation because it occurs in real time:

The underlying purpose of the prohibition against direct solicitation is the inherently coercive nature of direct conversations. The Supreme Court of the United States has upheld a ban on direct solicitation, stating “Unlike a public advertisement, which simply provides information and leaves the recipient free to act upon it or not, in-person solicitation may exert pressure and often demands an immediate response, without providing an opportunity for comparison or reflection.” Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 457 (1978). The Court’s opinion cited the American Bar Association’s argument of a compelling state interest in banning direct solicitation: “to reduce the likelihood of overreaching and the exertion of undue influence on lay persons, to protect the privacy of individuals, and to avoid situations where the lawyer's exercise of judgment on behalf of the client will be clouded by his own pecuniary self-interest.” Id. at 461. In contrast, written communications via a chat room, albeit in real time, do not involve the same pressure or opportunity for overreaching.

As a result, the Board determined that a direct solicitation via a chat room is permissible as long as the communication meets the requirements of Florida RPC 4-7.18(b).

Requirements of Rule 4-7.18(b) include, e.g., no contact within 30 days of an accident, beginning the communication with the word “advertisement,” providing information about the lawyer’s qualifications and experience, use of the first sentence “if you have already retained a lawyer for this matter, please disregard. . . ,” and the like. The Board’s decision is limited to participation in a chat room that does not involve live face-to-face interaction, e.g., via video telephone or video teleconference (such as Skype). Live face-to-face interaction by video would implicate the possibility of undue influence and pressure that is meant to be prohibited by Rule 4-7.18(a).

The Board added another requirement: the chat room solicitation had to be filed with The Florida Bar for review under Florida RPC 4-7.19. The Board elaborated:

Filing is required only when the solicitation is unsolicited by the consumer. This opinion should not be interpreted as suggesting that a lawyer must file responses to specific requests

96 https://www.isba.org/sites/default/files/ethicsopinions/96-10.pdf.


for information about the lawyer or the lawyer’s services in a chat room that were initiated by a prospective client and not at the prompting of the lawyer. A lawyer may also respond to the posting of a general question such as “Does anyone know a lawyer who handles X type of matter?” without filing the response for review by The Florida Bar. Only a lawyer’s unsolicited offers to provide legal services or information about the lawyer’s services are required to be filed for review with The Florida Bar under Rules 4-7.19 and 4-7.20. Although solicited responses need not be filed for review, they remain subject to the substantive lawyer advertising rules found in subchapter 4-7 of the Rules Regulating The Florida Bar.

The West Virginia Lawyer Disciplinary Board appears to be suggesting in its L.E.O. 2015-02 that a lawyer’s participation “in live chats and comments to individual’s posts” may be a solicitation under West Virginia RPC 7.3. But the opinion is so obliquely written, that it does not provide clear guidance on this point.

BLOGGING

Hypothetical No. 11

You write a popular legal blog. It has been a great source of work for you in your trial practice. You have an upcoming jury trial and write a blog piece describing the allegations of the complaint and the answer and identifying the issues to be tried.

Are there any ethical issues?


Legal blogs have become popular. They have been acknowledged in state RPC. For example, New York RPC 7.1, Comment [7] specifically provides that “[t]opical newsletters … or blogs intended to educate recipients about new developments in the law are generally not considered advertising.”

The New York State Bar Association specifically addressed blogging in its Opinion 967 (2013).97 New York’s RPC, unlike the Model Rules, define “advertisement.” New York RPC 1.0(a) defines “advertisement” as: "any public or private communication made by or on behalf of a lawyer or law firm about the lawyer or law firm’s services, the primary purpose of which is for the retention of the lawyer or law firm.” (Emphasis added.) The blog in question was not going to discuss legal topics, but instead work-life balance issues. Hence, the blog was not an advertisement subject to the advertising components of the New York RPC because the primary purpose of the blog was not the retention of the attorney: “Since the inquirer’s blog will not discuss legal matters and it appears that the inquirer does not intend to solicit clients for a law practice, the blog will not be considered an advertisement even though its name indicates that the author is an attorney.”

The NYSBA followed Opinion 967 with Opinion 1039 issued on December 8, 2014.98 The facts are straightforward. A lawyer operated a blog with an “opt-in” box. A person who checked the box provided contact information and, in return, received a free written report about copyrights. The attorney then planned to offer “subscribers” the attorney’s products and services. The authors of Opinion 1039 determined that the

97 http://www.nysba.org/CustomTemplates/Content.aspx?id=28100. 98 http://www.nysba.org/CustomTemplates/Content.aspx?id=53799.


blog itself was not a solicitation and that as long as the attorney complied with advertising rules, and if applicable, solicitation rules, the attorney could later reach out to subscribers.

New York’s definition of an advertisement “does not include communications to existing clients or other lawyers.” While the inquirer labeled her blog as an “attorney advertisement,” Opinion 1039 states that unless the blog’s primary purpose is retention of the lawyer or a law firm, this label is not required, and the attorney’s label is not dispositive of the question presented.99

Relying on an earlier opinion that held that an attorney could offer a prize to those who joined the attorney’s social networking sites as long as the offer itself was lawful,100 the authors wrote that they did not see any “ethical bar prohibiting the inquirer here from offering a written report about copyrights in exchange for readers’ names and email addresses.”

The blog was not a solicitation. Under New York RPC 7.3(b), a solicitation is an advertisement directed at a specific recipient or group with the primary purpose of retention of the lawyer and with pecuniary gain as a “significant motive.” Comment [3] to New York RPC 7.3 explains that an advertisement would be a solicitation if it is made by “in-person or telephone contact or by real time or interactive computer-accessed communication or if it is addressed so that it will be delivered to the specific recipient or recipients or their families or agents.” However, on the facts presented, “The blog and opt-in box here are not transmitted by real time or interactive computer-accessed communication and are not delivered to any specific recipients.” Hence, the blog did not represent a solicitation.101

The D.C. Bar’s Ethics Opinion 370 (November 2016) also addressing blogging. It makes the following points:

1. “The scope of the protections provided in Rule 1.6 militates in favor of prudence when it comes to disclosing information regarding clients and cases.”

2. Lawyers may ethically write about their cases on social media,” but they must comply with RPC 1.6, and that means they must obtain informed consent from their clients. D.C. Bar RPC 1.6(e)(1) “states that a lawyer may use a client's confidences and secrets for the lawyer's own benefit or that of a third party only after the attorney has obtained the client's informed consent to the use in question.”

3. Rule 1.6 “extends to even information that may be known to other people.” Hence, “the prudent lawyer will obtain client consent before sharing any information regarding a representation or disclosing the

99 “We do not opine on whether the label is actually required here, but we recognize that many lawyers take a conservative

approach to whether educational material prepared for clients is an advertisement and thus should bear the label ‘attorney advertisement’ as required by Rule 7.1(f). Whether a given communication is an ‘advertisement”’ is not always clear. See N.Y. State 848 (discussing factors to be considered in determining if attorney communication constitutes an ‘advertisement,’ including: (i) the intent of the communication, (ii) the content of the communication and (iii) the targeted audience of the communication). The fact that the lawyer decides as a precautionary matter to use the ‘advertising’ label is not dispositive.”

100 NYSBA Ethics Opinion 873 (2011), http://www.nysba.org/CustomTemplates/Content.aspx?id=5200: “Offering a prize offer to join an attorney’s social network is not prohibited by the Rules of Professional Conduct as long as the offer does not constitute illegal conduct. If the primary purpose of the prize offer is to promote retention of the attorney’s legal services (which is a factual question), then it is an ‘advertisement’ and is subject to Rule 7.1 and other Rules governing lawyer advertising. If it is an advertisement that also meets the definition of a ‘solicitation,’ then it is subject to Rule 7.3 as well. If the attorney communicates the prize offer by posting it on a social networking site or sending it by mail, and if the attorney does not communicate the offer in person, by telephone, or by a real-time or interactive computer-assisted communication (other than to recipients who are close friends, relatives, former clients, or existing clients), then the communications about the prize offer are not prohibited by Rule 7.3(a).”

101 The opinion authors reference N.Y. State 1016 (2014), http://www.nysba.org/CustomTemplates/Content.aspx?id=51296 (“A non-interactive commercial post to members of [a] message group would not constitute an interactive computer-accessed communication.”). This opinion, however, concludes: ”An attorney may advertise using commercial posts sent via email to members of internet message boards to which the attorney belongs provided the advertisement is not false, deceptive or misleading, does not otherwise violate the Rules and the label ‘Attorney Advertising’ is in the subject line of the email.”


identity of a client. Even if the attorney is reasonably sure that the information being disclosed would not be subject to Rule 1.6, it is prudent to obtain explicit informed client consent before making such posts.”

4. Apart from informed consent, there are other reasons why prudent attorneys will proceed cautiously “in determining the appropriateness of such posts.” “Consideration should be given to the identity of the client and the sensitivity of the subject matter, even if the client is not overtly identified. It is advisable that the attorney share a draft of the proposed post or blog entry with the client, so there can be no miscommunication regarding the nature of the content that the attorney wishes to make public. It is also advisable, should the client agree that the content may be made public, that the attorney obtain that client consent in a written form.”

5. Is the blog consistent with Rule 7.1? “Rule 7.1 governs all communications about a lawyer's services, including advertising. These Rules extend to online writings, whether on social media, a blog or other internet-based publication, regarding a lawyer's own cases. Such communications are subject to the Rules because they have the capacity to mislead by creating the unjustified expectation that similar results can be obtained for others. Care must be taken to avoid material misrepresentations of law or fact, or the omission of facts necessary to make the statement considered as a whole not materially misleading. Accordingly, social media posts regarding a lawyer's own cases should contain a prominent disclaimer making clear that past results are not a guarantee that similar results can be obtained for others.”

6. And the supervisory rules apply to law firms. “Law firms that have blogs or social media sites or that allow their lawyers to maintain their own legal blogs or social media pages should take appropriate steps to ensure that such content is compliant with the Rules, consistent with the duties set forth in Rule 5.1. Non-attorney employees who create content for their own or their employers' social media sites should be educated regarding the protection of client information and, if appropriate, be supervised by their employing law firm or lawyer, as required by Rule 5.3.” (Footnote omitted.)

7. All social media postings for law firms or lawyers, including blogs, “should contain disclaimers and privacy statements sufficient to convey to prospective clients and visitors that the social media posts are not intended to convey legal advice and do not create an attorney-client relationship.”

California’s State Bar Standing Committee on Professional Responsibility and Conduct has also addressed blogging in its Opinion No. 2016-96.102 The digest contained within the opinion itself is a good summary of the determinations made. Not surprisingly, depending on the content, the blog may be subject to advertising restrictions:

1. Blogging by an attorney may be a communication subject to the requirements and restrictions of the Rules of Professional Conduct and the State Bar Act relating to lawyer advertising if the blog expresses the attorney’s availability for professional employment directly through words of invitation or offer to provide legal services, or implicitly through its description of the type and character of legal services offered by the attorney, detailed descriptions of case results, or both.

2. A blog that is an integrated part of an attorney’s or law firm’s professional website will be a communication subject to the rules and statutes regulating attorney advertising to the same extent as the website of which it is a part.

102 http://ethics.calbar.ca.gov/portals/9/documents/opinions/CAL%202016-196%20%5B12-0006%5D%20Blogging.pdf.


3. A stand-alone blog

3/

by an attorney, even if discussing legal topics within or outside the authoring attorney’s area of practice, is not a communication subject to the requirements and restrictions of the Rules of Professional Conduct and the State Bar Act relating to lawyer advertising unless the blog directly or implicitly expresses the attorney’s availability for professional employment.

4. A stand-alone blog by an attorney on a non-legal topic is not a communication subject to the rules and statutes regulating attorney advertising, and will not become subject thereto simply because the blog contains a link to the attorney or law firm’s professional website. However, extensive and/or detailed professional identification information announcing the attorney’s availability for professional employment will itself be a communication subject to the rules and statutes.

The Virginia Supreme Court has determined that a lawyer’s blog represented an advertisement that had to comply with Virginia RPCs regarding advertising, rejecting on the facts a First Amendment argument that political speech was in issue or that, as commercial speech, the blog postings were still protected by the First Amendment. In Re Horace Frazier Hunter, VSB Docket No. 11-032-084907 (Aug. 30, 2013).103 Hunter “admitted that his motivation for the blog is at least in part economic. The posts are an advertisement in that they predominately describe cases where he has received a favorable result for his client. He unquestionably references a specific product, i.e., his lawyering skills as twenty-two of his twenty-five case related posts describe cases that he has successfully handled. Indeed, in nineteen of these posts, he specifically named his law firm in addition to naming himself as counsel.” The blog was also on his law firm’s commercial website. The Virginia Supreme Court then held that the Virginia Bar satisfied Central Hudson’s four-part test because the blog posts had the potential to be misleading and there is a substantial governmental interest in protecting consumers from believing that they might get similar results if Hunter was engaged as counsel, the requirement to post a disclaimer that past results do not guarantee future results advances the governmental interest, and the disclaimer requirement was no more restrictive than was necessary. Thus, as applied, the court held that the requirements in Virginia RPC 7.1 and 7.2 did not violate the First Amendment.

With respect to the hypothetical, a blog entry about the allegations of a complaint, the answer, and the issues to be tried, sounds informational—much like a newspaper story about the upcoming trial. Hence, it may not be advertising and likely does not represent a solicitation.

However, there are potential traps for the unwary. A jury pool could be influenced by the blog post. Hence, Rule 3.6(a) may be applicable: “A lawyer who is participating … in the … litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and would pose a serious and imminent threat to the fairness of an adjudicative proceeding in the matter.” And, as noted in the opinions discussed above, it may be prudent, if not necessary, to obtain a client’s informed consent. And if the blog is, in fact, regarded as advertising, then the applicable state bar advertising rules must also be satisfied.

103 http://www.courts.state.va.us/opinions/opnscvwp/1121472.pdf (last visited Feb. 6, 2017).


LAWYER INTERACTIONS ON SOCIAL NETWORKING SITE

Hypothetical No. 12

You monitor LinkedIn regularly. A person you exchanged business cards with once, shoots you a message describing a set of facts without mentioning any names and asks whether you think there is a viable claim. You respond, “Yes.”

Are there any ethics concerns here?


There are a number of ethical concerns with the lawyer’s one-word response.

Model Rule 1.7 addresses conflicts of interest with current clients. A lawyer should not be rendering legal advice to a person without knowing first whether the rendering of that advice puts in the lawyer in conflict with a current or former client.

The lawyer also runs a risk of creating an attorney-client relationship with the person soliciting the legal advice. And if such a relationship is created, the lawyer or the lawyer’s law firm may find itself with a conflict of interest should the firm seek to represent a party adverse to the person soliciting the legal advice.

Even if a lawyer-client relationship is not created, the information learned from the prospective client may implicate Model Rule 1.18 (b) and (c). They provide:

(b) Even when no client-lawyer relationship ensues, a lawyer who has learned information from a prospective client shall not use or reveal that information, except as Rule 1.9 would permit with respect to information of a former client.

(c) A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d). If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated


may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d).104

Model Rule 4.3 also is implicated here. It provides that, “When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.” Responding to the question proposed may suggest to the proponent of the question that the lawyer is representing and will represent the person. Model Rule 4.3 adds that, “The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.” This sentence relates back to Model Rule 1.7 and the need to avoid a conflict of interest or determine whether there is one before considering making a response.105

In short, the lawyer should not respond to the message without checking for conflicts and evaluating the possible creation of an attorney-client relationship and the potential for future conflicts.

The Florida Bar’s Standing Committee on Advertising’s Advisory Opinion A-00-1 (January 29, 2016) discussed earlier allowed a lawyer to solicit prospective clients through Internet chat rooms only if the lawyer complies with the Florida RPC that address direct written communications, and files unsolicited communications with The Florida Bar for review. However, the Board of Governors of The Florida Bar cautioned lawyers that their chat room conversations might inadvertently create an attorney-client relationship:

The Board believes that the most likely type of question to which a lawyer will want to respond is one involving a specific legal issue, such as “I just received a speeding ticket - what should I do?” or “I have heard that I can avoid probate if I have a trust - is that true?” The Board cautions lawyers that they may inadvertently form a lawyer-client relationship with a person by responding to specific legal inquiries, which will require that a lawyer comply with all Rules of Professional Conduct, including rules regarding conflicts of interest, confidentiality, competence, diligence, and avoiding engaging in the unlicensed practice of

104 Model Rule 1.18(d) provides that when a lawyer has received disqualifying information as defined in Rule 1.18(c), representation

is still permissible if “(1) both the affected client and the prospective client have given informed consent, confirmed in writing, or: (2) the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; and (i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and (ii) written notice is promptly given to the prospective client.” Cf. D.C. Bar Ethics Opinion 370 (November 2016): “Rule 1.18 imposes a duty of confidentiality with regard to a prospective client, who is defined in Rule 1.18(a) as ‘a person who discusses … the possibility of forming a client-lawyer relationship with respect to a matter.’ However, comment [2] to Rule 1.18 notes that ‘[a] person who communicates information unilaterally to a lawyer, without any reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship, is not a 'prospective client' within the meaning of [the Rule].’ The guidance of Rule 1.18 is of particular importance in social networking, where lawyers may self-identify themselves as attorneys and where, most likely, those ‘connected’ to the lawyer will be aware that the user is an attorney; however, without more, the mere knowledge that a friend is an attorney does not give rise to a reasonable expectation that interactions with that attorney would create a prospective or actual client relationship, or its attendant duty of confidentiality.” In L.E.O. 2015-02, the West Virginia Lawyer Disciplinary Board cautioned that a prospective attorney-client relationship “may be formed via social media or on a social networking website if an individual’s electronic communication with an attorney is determined to be a consultation.”

105 Consider, e.g., the admonition contained in D.C. Bar Ethics Opinion 370 (November 2016): “Consideration must also be given to avoid the acquisition of uninvited information through social media sites that could create actual or perceived conflicts of interest for the lawyer or the lawyer's firm. Caution should be exercised when stating positions on issues, as those stated positions could be adverse to an interest of a client, thus inadvertently creating a conflict. Rule 1.7(b)(4) states that an attorney shall not represent a client with respect to a matter if ‘the lawyer's professional judgment on behalf of the client will be or reasonably may be adversely affected by . . . the lawyer's own financial, business, property or personal interests,’ unless the conflict is resolved in accordance with Rule 1.7(c). Content of social media posts made by attorneys may contain evidence of such conflicts.” The Opinion continued by adding that “online communications and interactions with people who are unknown to the lawyer may unintentionally cause the development of relationships with persons or parties who may have interests that are adverse to those of existing clients.” In other words, know with whom you are interacting!


law. See, e.g., Florida Ethics Opinion 00-4. Although interpretation of these rules is outside the scope of an advisory advertising opinion, the Board feels obligated to point out that lawyers who engage in discussions in chat rooms may have other ethical obligations, regardless of whether the lawyer’s communications are permissible under the lawyer advertising rules.106

The authors of NYSBA Ethics Opinion 899 (2011)107 determined that a lawyer “may provide general answers to legal questions from laymen on real-time or interactive Internet sites such as chat rooms, but the lawyer may not engage in ‘solicitation’ in violation of Rule 7.3. If a person initiates a request on the site to retain the lawyer, the lawyer may respond with a private written proposal outside the site so that those who did not request it cannot see it.” The Ethics Committee explained that answering questions on the Internet “is analogous to writing for publication on legal topics.” NY RPC 7.1(r) provides that a lawyer may write for publication on legal topics without affecting the right to accept employment, as long as the lawyer does not undertake to give individual advice. It then elaborated;

Comment [9] to Rule 7.1 echoes Rule 7.1(r) by cautioning that, in the course of educating members of the public to recognize their legal problems a lawyer "should carefully refrain from giving or appearing to give a general solution applicable to all apparently similar individual problems, because slight changes in fact situations may require a material variance in the applicable advice; otherwise, the public may be misled and misadvised." Comment [9] adds that talks and writings by a lawyer aimed at the public "should caution them not to attempt to solve individual problems" on the basis of the information conveyed by the lawyer. A lawyer who adheres to those guidelines may answer legal questions posted by laymen on the Internet.

The Committee made these distinctions:

“Standing alone, a legal question posted by a member of the public on real-time interactive Internet or social media sites cannot be construed as a ‘specific request’ to retain the lawyer.”

Encouraging a layperson to retain the lawyer “in response to such a question is prohibited by Rule 7.3(a)(1).”

If a lawyer's “primary purpose in answering a question is not to encourage his own retention but rather is to educate the public by providing general answers to legal questions,’ then Rule 7.3(a)(l) does not prohibit the lawyer's responses.

It set forth these guidelines:

1. If a potential client “initiates a specific request to retain the lawyer during the course of permissible real-time cyberspace communications, then the lawyer's response to that person does not constitute impermissible solicitation.”

106 Florida Bar Ethics Opinion 00-4 can be found at https://www.floridabar.org/tfb/tfbetopin.nsf/SearchView/ETHICS,+OPINION+00-

4?opendocument. The digest of the opinion is contained in the first paragraph: “An attorney may provide legal services over the Internet, through the attorney’s law firm, on matters not requiring in-person consultation or court appearances. All rules of professional conduct apply, including competence, communication, conflicts of interest, and confidentiality. An attorney may communicate with the client using unencrypted e-mail under most circumstances. If a matter cannot be handled over the Internet because of its complexity, the matter must be declined.”



2. Because the lawyer's response in a chat room or interactive social media site “would constitute a solicitation to everyone on the site who did not specifically request the lawyer's services, the lawyer may not post a response that encourages everyone on the site to retain the lawyer.”

3. If the person making the request includes contact information, the lawyer may respond only to that person. 4. If the person making the request does not include contact information, the lawyer's response “must be in

two stages. a. The first stage is to ask the layperson to communicate directly with the lawyer off the site, by

email, phone, or otherwise.” b. “Alternatively, the lawyer may provide an office phone number, email address, and/or mailing

address, without giving any information about the lawyer's services.” 5. “If the person who requested the lawyer's services then uses one of these methods to contact the lawyer

directly outside the real-time or interactive site, then the lawyer will not violate the restrictions on solicitation by preparing and delivering a proposal or other writing that responds to the specific request made by that prospective client. (Because advertising includes both public and private communications for the purpose of seeking retention, these communications must comply with Rule 7.1.)”

6. The lawyer “may not post a proposal offering his or her legal services on the real-time interactive Internet or social media site, because posting that information would be a real-time and interactive computer-accessed solicitation to people who did not request it, in violation of Rule 7.3(a)(1).”108

The D.C. Bar’s Ethics Opinion 370 analyzed social media contacts in the same manner that it had addressed chat room conversations and the risk of creating an attorney-client relationship in two earlier opinions:



(Footnote omitted.)

108 The Committee offered two disclaimers: “This Committee cannot answer questions of law. Accordingly, we cannot determine

whether private responses to a layperson’s specific request on a real-time or interactive computer-accessed site would violate § 479 of the New York Judiciary Law, which prohibits solicitation by attorneys. Nor can we determine whether § 479 or the Rules regulating advertising and solicitation are constitutional in light of Bates v. State Bar of Arizona, 433 U.S. 350 (1977), and its progeny.”



Two South Carolina Bar ethics opinions highlight the RPC addressing the division of fees when utilizing websites that get a “cut” of a payment made to a lawyer.

In Ethics Advisory Opinion 11-05,109 the Bar ethics committee addressed the question of whether a lawyer could ethically utilize “daily deal” websites “that offer products and services at discounted rates to market her legal services.” The lawyer wanted to use a website that allowed a consumer to purchase a voucher that then could be redeemed for a discounted product or service. “The proceeds of the purchase are split between the website offering the voucher and the business at which it is to be redeemed. Lawyer envisions using such websites to offer legal services such as preparation of wills.”

The Committee determined that the practice was permissible, but that the lawyer had to be mindful of compliance with any applicable advertising rules:

The use of “daily deal” websites to sell vouchers to be redeemed for discounted legal services does not violate the Rule 5.4(a) prohibition on sharing of legal fees, but the attorney is cautioned that the use of such websites must be in compliance with Rules 7.1 and 7.2 and could lead to violations of several other rules if logistical issues are not appropriately addressed.

With respect to its conclusion under South Carolina RPC 5.4(a), the “Committee’s members arrived at this conclusion via two different analyses.” Some of the members of the Committee felt that the payment to the website operator for use of its services was, in effect, the payment of “the reasonable cost of advertisements or communications” permitted under Rule 7.2(c)(1), instead of “the sharing of a legal fee with a non-lawyer prohibited by Rule 5.4(a).” These members determined that charging for this service upfront rather than invoicing the attorney “does not transform the transaction from the payment of advertising costs into an improper fee split.”

The remainder of the Committee’s members believed that the transaction was fee-splitting under Rule 5.4(a) but that there was not a violation of Rule 5.4(a) because it “only applies in situations where such fee-splitting interferes with ‘the lawyer’s professional independence of judgment’ on behalf of the client as stated in comment one to the rule.”

The sharing of fees with a non-lawyer may be permitted where the circumstances do not suggest any encroachment on the lawyer’s independent judgment. Even where a website retains a portion of each fee paid for services to be subsequently rendered by an attorney, the use of such websites as a marketing tool does not violate Rule 5.4(a), provided the website does not have the ability to exercise any control over the services which are to be subsequently rendered by the attorney. Without the ability to exercise such control, there does not appear to be any possibility of encroachment on the lawyer’s independent judgment and therefore, Rule 5.4(a) prohibiting the sharing of legal fees with a non-lawyer is not violated.

The advertising concerns of the Committee prompted the Committee to add these words of caution:

The lawyer is responsible for the communication to potential clients which she asked to be placed on the “daily deal” website. While the “effectiveness and taste in advertising are



matters of speculation and subjective judgment,” Rule 7.1 expressly provides that an attorney must ensure that the communication does not contain any false, misleading, deceptive or unfair information about the lawyer or her services.

The Committee does not believe the use of “daily deal” websites would violate the requirements of Rule 7.3 concerning contact with prospective clients, because the lawyer will not be communicating directly with the users of the website and because the lawyer does not know whether the prospective clients who may use the website will be in need of legal services in a particular matter.

(Footnotes omitted.)

Finally, the Committee identified four other concerns:

1. The lawyer must ensure that “she complies with Rule 1.5(b), requiring the lawyer to disclose the scope of representation and the basis of her fee within a reasonable time of the commencement of representation.

2. The lawyer must ensure that “she is in compliance with Rule 1.15(c) which requires unearned fees to be deposited into a client trust account until the fees are actually earned. If a consumer purchases a voucher from a “daily deal” website and the lawyer is paid a percentage of the purchase price prior to rendering any services, then the compensation paid to the lawyer may be considered an unearned fee.

3. The lawyer “must address the logistical issue of how she will handle conflict of interest situations that may arise under Rules 1.7 and 1.9.”

Then in Opinion 16-06,110 the South Carolina Bar ethics committee addressed legal referral service website without mentioning the name (but it was Avvo). “An attorney directory website released a new fixed-fee legal referral service,” the Committee explained, in describing the facts. The attorney signs up for the service. The attorney agrees to offer certain services for a flat fee. The website charges a fee for the lawyer’s involvement in the referral service. Consumers access the website and are then referred to the attorney who then meets with the “client” and begins the representation. The service collects the funds from the client until the service is completed and then transfers the “full amount” to the attorney’s account. “Upon completion of the work, the service charges the attorney a “per service marketing fee” which seems to be based upon the service provided and is only incurred when the lawyer provides the service. For example, the fee for an uncontested divorce may be $995, and the fee is $200, while the fee to start a single member LLC is $ 595, and the fee is $125.”

The questions presented were based on Opinion 11/05: Is there a Rule 5.4 violation? “Alternatively, does the arrangement violate the ‘reasonable costs of advertisements or communications’ as described in Rule 7.2 (c) (1)”?

This time the Committee determined that the arrangement violated the prohibition on sharing fees in South Carolina RPC 5.4(a) and that even if that was not the case, the arrangement “would violate the Rule 7.2(c) prohibition of paying for a referral and is not saved by the exceptions found in Rule 7.2(c)(1), (2), or (3).”

The analysis was pithy and straightforward:

Rule 5.4 (a) prohibits a lawyer or law firm from sharing legal fees with a non-lawyer, subject to certain exceptions set forth in 5.4 (a) (1)-(4). The exceptions generally fall into two



categories: payments to a deceased lawyer’s estate or payment to non-lawyer employees in a compensation or retirement plan that is based in whole or in part on a profit sharing arrangement. The exceptions do not apply here.

In the situation described above, the service collects the entire fee and transmits it to the attorney at the conclusion of the case. In a separate transaction, the service receives a fee for its efforts, which is apparently directly related to the amount of the fee earned in the case. The fact that there is a separate transaction in which the service is paid does not mean that the arrangement is not fee splitting as described in the Rules of Professional Conduct.

A lawyer cannot do indirectly what would be prohibited if done directly. Allowing the service to indirectly take a portion of the attorney’s fee by disguising it in two separate transactions does not negate the fact that the service is claiming a certain portion of the fee earned by the lawyer as its “per service marketing fee.”

The 2016 South Carolina Bar Ethics Committee had a different view than the 2011 Committee on whether the payment to the website operator was for an advertisement. South Carolina RPC 7.2(c) “prohibits a lawyer from giving anything of value to a person for recommending the lawyer’s services, with three exceptions. The first exception, found in 7.2(c)(1) allows for a lawyer to pay for the ‘reasonable costs of advertisements or communications permitted by this Rule.’” The Committee then addressed the scope of this exception:

Comment 7 to the rule discusses reasonable advertising costs and lists such items as newspaper ads, on-line directory listings, radio/television advertisement, etc. The permitted type of advertising described in the comments typically is of a type that has a fixed cost per ad or per run of air time, and reasonableness can be assessed by the market rate for the type of advertising.

In contrast to the description in Comment 7, the Committee determined, the website service “purports to charge the lawyer a fee based on the type of service the lawyer has performed rather than a fixed fee for the advertisement, or a fee per inquiry or ‘click.’ In essence, the service’s charges amount to a contingency advertising fee arrangement rather than a cost that can be assessed for reasonableness by looking at market rate or comparable services.”

The Committee found additional support in its conclusion based on the fact that the service charged different rates for different services but, “[p]resumably, it does not cost the service any more to advertise online” for one service versus another.

There does not seem to be any rational basis for charging the attorney more for the advertising services of one type of case versus another. For example, a newspaper or radio ad would cost the same whether a lawyer was advertising his services as a criminal defense lawyer or a family law attorney. The cost of the ad may vary from publication to publication, but the ad cost would not be dependent on the type of legal service offered.

By basing the advertising charge to the lawyer on the fee collected for the work rather than having a fixed rate per referral or other reasonable cost for the advertisement, a lawyer utilizing this service cannot claim the exception to the prohibition of paying for referrals contained in Rule 7.2(c)(1).

The other exceptions in South Carolina RPC 7.2(c) were also found inapplicable:


Rule 7.2 (c)(2) allows an exception to the rule for the usual charges of a legal service plan or not for profit lawyer referral service. The comments to Rule 7.2 define a legal service plan as a” prepaid or group legal service plan or similar delivery system” that assists clients in finding attorneys. The service’s design does not appear to be a sort of prepaid system like commercial plans in which a person pays a fee to be a member. The service likewise does not appear to be a “not for profit” lawyer referral service. Therefore, the exceptions found in Rule 7.2(c)(2) do not apply.

Rule 7.2(c)(3) allows an exception for payment for a law practice in accordance with Rule 1.17, which is not applicable to this scenario.

The New York State Bar Association also has rendered an opinion on Avvo’s referral service. Opinion 1132 (Aug. 8, 2017).111 New York RPC 7.2(a) provides: “A lawyer shall not compensate or give anything of value to a person or organization to recommend or obtain employment by a client, or as a reward for having made a recommendation resulting in employment by a client.” Does the payment by a lawyer of a marketing fee to Avvo represent compensation to an organization to recommend employment or as a reward for making a recommendation resulting in employment by a client? The NSYBA ethics committee felt that it is a recommendation.

The Committee reasoned as follows:

Quoting from NYSBA Et. Op. 897 (2011), “A communication contains a recommendation if it endorses or vouches for a lawyer's credentials, abilities, competence, character, or other professional qualities.” (Emphasis removed.)

“Avvo allows clients to choose from among all of the lawyers in a geographic area who have listed themselves as practicing the field of law in which the client wants legal services. (Avvo says lawyers are displayed randomly and the list is reshuffled at least once every hour.)”

“Avvo says that it does not analyze (or even inquire about) a client’s individual situation. No human being at Avvo talks directly to any prospective client to find out the facts or studies the prospective client’s documents and then picks out a particular lawyer who is ‘right’ for that client.”

“Nor does Avvo’s website suggest that a client hire any particular lawyer. Avvo is not ‘recommending’ lawyers in that sense.”

“But Avvo does more than merely list lawyers, their profiles, and their contact information.” “Avvo also gives each lawyer an Avvo rating, on a scale from 1 to 10. As Avvo explains on its website,

‘It’s as simple as counting to 10. Ratings fall on a scale of 1 (Extreme Caution) to 10 (Superb), helping you quickly assess a lawyer’s background based on our rating.’” (Emphasis removed.)

“The Avvo ratings suggest mathematical precision – the rating for each lawyer is calculated to a decimal place (e.g., a rating of 6.7 or 8.4).”

“[S]ome Avvo ads expressly state that the Avvo Rating enables a potential client to find “the right” lawyer, and Avvo’s website claims that its ratings enable potential clients to choose the right lawyer for their needs: “Why the Avvo Rating can help you find the right attorney: The model used to calculate the rating was developed with input from hundreds of attorneys, thousands of consumers, and many other legal professionals who deeply understand the work attorneys do. We created the Avvo Rating to reflect the type of information people have identified as important when looking to hire an attorney.”

111 http://www.nysba.org/EthicsOpinion1132/.


“Even if Avvo ratings are ‘bona fide,’ within the meaning of Rule 7.1(b)(1), we must determine whether (i) Avvo’s inclusion of Avvo Ratings in Avvo’s advertising on behalf of participating lawyers, or (ii) Avvo’s description of its ratings in its advertising, is or implies a ‘recommendation,’ i.e. whether the rating ‘endorses or vouches for a lawyer's credentials, abilities, competence, character, or other professional qualities.’”

Avvo’s website does not describe a rating as a recommendation. It also contains several warnings about the limitations of its ratings.

“Nevertheless, the Avvo website also extols the benefits of being able to work with highly-rated lawyers: ‘Work with highly rated, local lawyers near you. Search top-rated lawyers near you. We only work with highly qualified attorneys who are licensed to practice in your state.’”

“Through these statements and through Avvo’s description of its rating system, Avvo is giving potential clients the impression that a lawyer with a rating of ‘10’ is ‘superb,’ and is thus a better lawyer for the client’s matter than a lawyer with a lower rating.”

“Avvo is also giving potential clients the impression that Avvo’s eligibility requirements for lawyers who participate in Avvo Legal Services assure that participating lawyers are ‘highly qualified.’”

“We do not believe that a bona fide professional rating alone is a recommendation. But, even assuming that Avvo ratings are ‘bona fide professional ratings,’ we believe the way Avvo describes in its advertising material the ratings of participating lawyers either expressly states or at least implies or creates the reasonable impression that Avvo is ‘recommending’ those lawyers.”

“In N.Y. State 799 (2011), in discussing the difference between an internet-based directory and a recommendation, we said that the line between the two was crossed when a website purports to recommend a particular lawyer or lawyers based on an analysis of the potential client’s problem.” (Emphasis in original.)

“We believe Avvo’s advertising of its ratings, in combination with its statements about the high qualifications of lawyers who participate in Avvo Legal Services, constitutes a recommendation of all of the participating lawyers.”

“Our conclusion is bolstered by Avvo’s satisfaction guarantee, by which the full amount of the client’s payment (including Avvo’s portion of the fee) is refunded if the client is not satisfied. This guarantee contributes to the impression that Avvo is ‘recommending’ the lawyers on its service because it stands behind them to the extent of refunding payment if the client is not satisfied.”

“This opinion does not preclude a lawyer from advertising bona fide professional ratings generated by third parties in advertisements, and we recognize that a lawyer may pay another party (such as a magazine or website) to include those bona fide ratings in the lawyer’s advertisements.”112

“But Avvo Legal Services is different. It is not a third party, but rather the very party that will benefit financially if potential clients hire the lawyers rated by Avvo. Avvo markets the lawyers participating in the service offered under the Avvo brand, generates Avvo ratings that it uses in the advertising for the lawyers who participate in Avvo Legal Services, and effectively ‘vouches for’ each participating lawyer's credentials, abilities, and competence by offering a full refund if the client is not satisfied.”

112 NYSBA L.E.O. 1131 was issued also on August 8, 2017. It approves of payment by a lawyer of a fee to an Internet-based “lead”

generator if certain conditions are met: “A lawyer may pay a for-profit service for leads to potential clients obtained via a website on which potential clients provide contact information and agree to be contacted by a participating lawyer, as long as (i) the lawyer who contacts the potential client has been selected by transparent and mechanical methods that do not purport to be based on an analysis of the potential client’s legal problem or the qualifications of the selected lawyer to handle that problem; (ii) the service does not explicitly or implicitly recommend any lawyer, and (iii) the website of the service complies with the requirements of Rule 7.1. A lawyer who purchases such a lead to a potential client may ethically telephone that potential client if the potential client has invited the lawyer selected by the service to make contact by telephone.”


“As noted earlier, Avvo says: ‘We stand behind our services and expect our clients to be 100% satisfied with their experience.’ Accordingly, we conclude that lawyers who pay Avvo’s marketing fee are paying for a recommendation, and are thus violating Rule 7.2(a).”113

No one should expect that this assault on Avvo will be the final word on “Uber-ization” of certain commodity legal services. Lawyers on the service, however, must monitor ethical opinions on the application of Rule 5.4 and the advertising rules in the jurisdictions that have disciplinary authority over the lawyers’ conduct.

CROWDFUNDING OF LEGAL FEES ON A CLAIM

Hypothetical No. 13

A lawyer solicits contributions on a crowdfunding site to pay the legal fees in an action the lawyer plans to bring on behalf of an indigent client against a governmental entity. The funds would be paid directly to the lawyer.

Is this ethically permissible?


Crowdfunding is a fundraising tool. The person soliciting funds accesses the crowdfunding website and presents a proposal. Funders who like the proposal can contribute money to fund the proposal. The crowdfunding website operator collects a fee for providing the fundraising forum. Funders may get something in return. For example, if development of a product was the basis for the crowdfunding proposal, then a donor may receive the product after it is developed.

The hypothetical is based on the facts set forth in Ethics Opinion 2015-6 of the City of Philadelphia Bar Association.114 A lawyer was planning to sue a governmental entity on behalf of an indigent client and wanted to use crowdfunding to solicit contributions to pay his fees. Donors would not receive anything in return. The lawyer believed that they would view the litigation as a “worthy public cause.”

An attorney fee-shifting statute “might result in the payment of some fee in the event of success, but the client does not have any ability to pay a fee.” The client is going to assign any award of attorney's fees under the fee-shifting statute to the lawyer.

The lawyer’s proposed fee agreement with the client allowed the lawyer to keep any funds raised through crowdfunding as well as any fees awarded under the fee-shifting statute: "[A]ny contributed funds received

113 The opinion authors recognized the debate over the issue but explained that its job was to interpret existing rules: “The

questions we have addressed here have generated vigorous debate both within and outside the legal profession. The numbers of lawyers and clients who are using Avvo Legal Services suggest that the company fills a need that more traditional methods of marketing and providing legal services are not meeting. But it is not this Committee’s job to decide policy issues regarding access to justice, affordability of legal fees, or lawyer quality. Our job is to interpret the New York Rules of Professional Conduct. Future changes to Avvo’s mode of operation – or future changes to the Rules of Professional Conduct – could lead us to alter our conclusions, but at this point we conclude that, under Avvo’s current structure, lawyers may not pay Avvo’s marketing fee for participating in Avvo Legal Services.”

114 http://www.philadelphiabar.org/WebObjects/PBAReadOnly.woa/Contents/WebServerResources/CMSResources/Opinion2015-6.pdf.


from the crowdfunding appeal would be payments to counsel, not the party [client] and that these fees would remain counsel's property even in the event of a recovery of attorneys' fees under the fee shifting statute."

Before addressing the facts before them, the opinion-authors pointed out that there is an alternative to this approach. The fees could be placed into trust managed by a separate entity and then paid out according to a fee agreement that sets forth the terms of payment.115

The opinion then addresses the issues presented.

The first question was whether the lawyer could accept a fee from other than the lawyer’s client. The answer to that question is “yes.” Comment 13 to the Pennsylvania RPC 1.7, which is identical to Comment 13 to Model Rule 1.7, provides:

A lawyer may be paid from a source other than the client, including a co-client, if the client is informed of that fact and consents and the arrangement does not compromise the lawyer's duty of loyalty or independent judgment to the client. See Rule 1.8(f). If acceptance of the payment from any other source presents a significant risk that the lawyer's representation of the client will be materially limited by the lawyer's own interest in accommodating the person paying the lawyer's fee or by the lawyer's responsibilities to a payer who is also a co-client, then the lawyer must comply with the requirements of paragraph (b) before accepting the representation, including determining whether the conflict is consentable and, if so, that the client has adequate information about the material risks of the representation.

Pennsylvania PPC 1.8(f) (and Model Rule 1.8(f)) then provides:

(f) A lawyer shall not accept compensation for representing a client from one other than the client unless:

(1) the client gives informed consent;

(2) there is no interference with the lawyer's independence of professional judgment or with the client-lawyer relationship; and

(3) information relating to representation of a client is protected as required by Rule 1.6.

The opinion states, “There is no reason to think that by raising funds from a crowdsourcing site, the lawyer's duty of loyalty and independent judgment to this client would be compromised.” Hence, as long as client-confidential information is not disclosed and the client gives informed consent, the lawyer could proceed. The lawyer stated “he is aware” of the former requirement and that he would obtain the consent of the client as required by Rule 1.8(f).

115 The opinion states: “The Committee first points out that there is, of course, an alternative. It is possible to raise funds on a

crowdfunding site to support litigation, either by paying lawyers’ fees or expenses or both, but to hold the funds raised in some sort of trust arrangement and pay them out only as earned or incurred. The Committee has visited crowdfunding sites and noted that several do contain solicitations of support for a legal cause to pay legal fees, but in those cases, it appears that the contribution is to an entity that would hold the amounts contributed in trust to pay fees as earned in accordance with a separate fee agreement between the lawyer and the client that would specify how and when the lawyer would be paid.” There was no discussion of what would be done with any residual funds that might remain in the trust.


But how does the lawyer publicize the matter on the crowdfunding site in order to raise funds without breaching the lawyer’s duty of confidentiality under Pennsylvania RPC 1.6 (which is derived from Model Rule 1.6)?

Pennsylvania RPC 1.6, like Model Rule 1.6, states that "[a] lawyer shall not reveal information relating to representation of a client unless the client gives informed consent, except for disclosures that are impliedly authorized in order to carry out the representation ...” The lawyer acknowledged the requirement and said he would obtain informed consent, and the Bar Ethics Committee believed that the lawyer could navigate compliance with Rule 1.6. It cautioned, however, that, “Care should be taken, of course, to keep information revealed about the client and the matter to the minimum necessary to achieve the purpose.”

The final issue addressed by the Committee was the propriety of the fee agreement, whereby the lawyer would keep all fund raised in payment of the lawyer’s fee.

Pennsylvania RPC 1.5 prohibits a lawyer from entering into an agreement for, or charge or collect “an illegal or clearly excessive fee.”116 The Committee could not rule out the possible violation of Rule 1.5(a) since the amount raised and the actual hours expended and the lawyer’s commitment to remain in the matter were variables:

It cannot be known how much may be raised; and the course of the representation is by no means certain. The litigation could end quickly, either favorably or not; before the litigation's end the inquirer may seek to withdraw or the client may wish to discharge him; or the inquirer may or may not succeed in seeking the payment of fees and expenses under an applicable fee shifting statute. Thus, just to give one example, if the matter ends quickly with relatively few hours of work expended, the retention of the entire amount raised on the crowdfunding site may produce an effective hourly rate that is extremely high. Without knowing how much was raised, it would therefore be difficult to determine whether or not the fee would be clearly excessive. Add the fact that the inquirer has asked the client to assign any award of attorney's fees to the inquirer, the possibility of a clearly excessive fee is truly an issue.

The scope of the inquirer's obligation in return for the payment of the fee also is not clear to the Committee. Does the inquirer anticipate that if the client agrees to allow the lawyer to retain the total raised on the crowdfunding site that the inquirer is promising that he will handle the matter from its inception to its conclusion in return for whatever the crowd fund raised fee turns out to be? That is, in return for the fee, does the lawyer promise to remain in the case through its termination, regardless of what the fee is, or may he withdraw in the event certain contingencies arise but still keep his fee?

116 Model Rule 1.5(a) makes reference to an “unreasonable” fee: “A lawyer shall not make an agreement for, charge, or collect an

unreasonable fee or an unreasonable amount for expenses.” Otherwise, the facts for determining the reasonableness of the fee are the same in Model Rule 1.5 as they are in Pennsylvania RPC 1.5 although they are ordered slightly differently.


Hence, the Committee concluded that the lawyer had to “consider these various issues and resolve them with the client, and that without consideration and resolution of such matters, the Agreement is insufficiently clear and could possibly result in an excessive fee.”117

The Committee was not done. Because the proposed fee agreement permitted the lawyer to keep all funds raised as “earned immediately upon receipt,” the lawyer has established a “de facto non-refundable retainer, even though the actual amount is unknown.” Such retainers are not per se prohibited in Pennsylvania but if the amount funded is large, the retainer agreement “may place a meaningful limitation on the client’s ability to discharge the lawyer” if the client “is dissatisfied with the lawyer’s performance or simply chooses to change counsel without cause.” “Similarly, unless the arrangement also includes a promise to represent the client through to the conclusion of the matter, assuming the client wishes the lawyer to, it also could be a clearly excessive arrangement.” As a result, the Committee concluded that if the arrangement allows the lawyer to keep whatever funds are raised without any other undertakings, the arrangement “is improper.”

What would the lawyer need to include to avoid this result? This is what the Committee required to bring the arrangement within the Pennsylvania RPC:

1. The fee arrangement “should include terms which describe the lawyer's obligations including the lawyer's obligation to remain in the case, assuming the client wishes him to do so, until its conclusion or until some other point at which retention of the total fees paid would not constitute an excessive fee. For example, the fee arrangement with the client could state that the inquirer is obligated to remain in the representation until the time expended reaches a total figure such that the total fee paid is reasonable in light of that time expended.”

2. The arrangement “should require that the amount raised be placed in a trust account established under Rule 1.15 until those amounts are earned in accordance with the terms of the final fee agreement. Until such time that it is determined that the fee is actually earned, the monies raised constitute Rule 1.15 funds and should be held separate from the lawyer's own property.”

3. The lawyer also “should consider the duties owed to non-clients.” Pennsylvania RPC 4.1 states that "[i]n the course of representing a client a lawyer shall not knowingly ... make a false statement of material fact or law to a third person. Pennsylvania RPC 7.1 requires that lawyers not make false or misleading communications about the lawyer or the lawyer's services, “noting that a communication is false or misleading if it contains a material is representation of fact or law or omits a fact necessary to make the statement considered as a whole not materially misleading,” The Committee then explained:

The Committee does not know the nature of the representation, why it may attract financing from the public, or what might be said about it in the crowdsource website. Certainly it is possible to describe the matter and the fact that the funds are sought in connection with a fee to make the matter feasible in a manner that is entirely truthful and not in any way misleading

117 The opinion states: “For example, suppose the inquirer raises $20,000 under this arrangement and that the entire fund

immediately is paid to him or her, and, then, the lawyer manages to get a result in the case by devoting only ten hours of work. That situation could produce a fee at the rate of $2,000 per hour. On the other end of the spectrum, suppose the funding site raises $20,000, and then the inquirer finds out the matter will go on for years and require thousands of hours of work, much more than anticipated, and more than the inquirer can possibly handle without a fee. Could he then keep the whole fee and withdraw? Those are only two examples of what could be many possible scenarios. If the lawyer is to avoid taking an excessive fee and satisfy the requirement of Rule 1.5b, the inquirer must consider these issues. The inquirer and the client should consider these possibilities and describe their understanding about the fee and scope of representation carefully. In addition, the inquirer should consider the various factors spelled out above in determining whether the fee is reasonable under all the circumstances of the representation.”


and advances the cause of the client without revealing too much confidential information. There is nothing inherent in such a plan to suggest that the inquirer in any way is violating any Rule by doing so. However, it important to make sure that those who contribute to the crowdfunding not feel that they have been misled in any way. As suggested, the fee arrangement raises the possibility that a person who contributes funds might react negatively if they were to learn that the entire fee raised to pay for the litigation turned out to the be a lucrative fee for the inquirer without producing the result described.

The Pennsylvania State Bar issued an ethics opinion labeled as Inquiry No. 2016-003118 that also addressed crowdfunding119 in two contexts: “(1) May an attorney use crowdfunding120 sites to fund startup capital and/or projects for the creation or expansion of a firm? (2) May a lawyer use crowdfunding, with client approval, to raise money for a fee for that client?”

The Ethics Committee author explained that there was not an obvious prohibition on the first goal—to fund startup capital or projects for the firm. But the author had these cautionary reminders:

The lawyer must be mindful of Pennsylvania RPC 5.4(a) which prohibits a lawyer from sharing fees with a nonlawyer unless an exception (none of which were applicable) applies.

The lawyer must also be aware of Rule 5.4(d)(1), which prohibits a lawyer from practicing with or in the form of a professional corporation or association authorized to practice law if a nonlawyer has an ownership interest in the business.

The opinion then contains this summary on this part of the opinion:

Thus the context and setup of the crowdfunding will be critical to ensure that the Arrangement comports with the requirements of Rule 5.4. Any setup which offers donors equity or a specific dollar return on their investment would not comport with Rule 5.4. But a campaign that exchanges donations for gratitude or perhaps discounted legal fees would be acceptable under these rules. The interaction would be similar to the lawyer asking friends and family to give him/her money to help get the firm off the ground. The use of a new medium, assuming no equity or profits change hands, does not change anything.

118 The Pennsylvania Bar does not make available to the public responses to inquiries. But the response is digested at 38 Penn.

Lawyer 50 (May 1, 2016). The opinion is also advisory only and not binding on the Disciplinary Board of the Supreme Court of Pennsylvania. It is also the opinion of one member of the Committee and not the full Committee.

119 The opinion described crowdfunding as follows: “Crowdfunding is the use of a crowdfunding platform to allow one person or company to solicit monetary contributions from anyone

on the Internet in order to reach some kind of financial goal. Donors are then offered some kind of reward for their money. These rewards range from ownership interest in the venture to early access to a project to memorabilia or to a ‘thank-you’ from the original solicitor. When raising this money through a crowdfunding platform, the platform usually collects a fee.

Those soliciting the donation can take one of two approaches to fundraising. The first is a ‘keep-it-all’ approach. Under this model, regardless of whether the solicitor raises the capital requested, the solicitor keeps all funds acquired. The second model is the ‘all-or-nothing’ model. Under this model, the solicitor does not receive any funds unless the entire capital requested is raised.”

120 The New York State Bar Association reached a similar conclusion in Opinion 1062 (June 29, 2015). https://www.nysba.org/CustomTemplates/Content.aspx?id=57390. The opinion addressed two law school graduates who wanted to use crowdfunding to raise capital to start a new law firm. “If the law firm provided royalties to donors or equity in the firm, there would be Rule 5.4 violations: The royalty model contemplates the investor receiving a percentage of revenues, and would therefore violate Rule 5.4(a) (“A lawyer shall not share legal fees with a nonlawyer”). Similarly, the equity model violates Rule 5.4(d) (lawyer shall not practice law in a for-profit entity if a non-lawyer owns any interest therein.).” Opinion 1062 does state that the lawyer may be able to offer “rewards” to donors in the form of informational pamphlets or reports on the progress of the firm but they had to abide by advertising rules. Another “reward”—offering pro bono services to a non-profit organization—prompted the ethics committee to note that a lawyer has to be competent to handle a matter (Model Rule 1.1 and New York RPC 1.1(b) and a lawyer may not accept a matter that creates a conflict of interest under New York RPC 1.7 or 1.9 (Model Rules 1.7 and 1.9).


As to the second goal, the opinion relied on the Philadelphia Bar Opinion 2015-6 discussed above. But it also suggested that an “easier solution would be to encourage the client to start a crowdfunding campaign independently to raise needed funds so that the client would be paying for the client’s own legal fees.” Following up on this suggestion, the opinion author explained that assuming that the fee structure was reasonable and communicated to the client in writing, RPC 1.5 (governing fees generally) did not prohibit “this setup” and the “specific source of funds” was not implicated by Rule 1.5. Rule 1.8 (governing conflicts) was also not implicated because the money would come through the client so that even if a funder to the client presented a conflict concern, for the lawyer’s purposes, “the money is coming directly from the client.”121

Returning to the hypothetical, the opinions described above outline the contours of the ethical considerations:

1. The lawyer’s solicitation of funds will not compromise the lawyer’s duty of loyalty or duty to provide independent judgment to the client.

2. The lawyer’s client must be informed of the arrangement and give informed consent. 3. The lawyer must take care not to violate the lawyer’s duty of confidentiality in providing information to

potential donors on the crowdfunding website. 4. Will the funds go to the lawyer’s operating account, or to a third-party trust account where they will be

paid out only as earned? 5. Will donors receive anything in return for the contribution? 6. Will the fee arrangement result in an excessive or unreasonable fee? 7. Will it result in a non-refundable retainer? 8. Will the lawyer commit to representation through the conclusion of the matter? 9. Will the client be restrained in removing the lawyer by the fee arrangement?

Prudent lawyers will consider having the client raise the funds, if practicable, or to place funds in a third-party trust account to be paid only when earned.

CONCLUSION The use by lawyers of social media and e-communications, and, more broadly, the Internet, presents new problems for old rules. As with all matters involving ethics and professional responsibility, lawyers are well advised to remember these rules:

Think before you act. Consult before you commit. Know what rules apply in your jurisdiction.

121 The opinion also addressed a separate question: may a lawyer use a “remote paralegal” or a “virtual assistant” without

compromising the attorney-client privilege? The answer was, of course, yes, but RPC 5.3—a supervision rule—is applicable. The opinion author explained that, “Like any staff member, the lawyer would be responsible for the actions of the virtual assistant if it would violate the Rules of Professional Conduct. The lawyer must use reasonable care to ensure that the virtual assistant complies with the Rules of Professional Conduct. Lawyers looking to use virtual assistants must ensure that the assistant is aware of the Rules of Professional Conduct.” The author also suggested that “specific training on the rules and the prohibitions they carry may be required.” And finally, it admonished the lawyer to ensure that any organization or company “which facilitates the use of the virtual assistant also complies with the Rules.”


Know what the ethics opinions say on the matter. Get good advice where appropriate to do so. Do not communicate with your clients at the client’s workplace and ensure that your client does not

forward privileged electronic communications to the client’s place of employment and that your client’s storage media are password protected from third parties whose access otherwise might jeopardize the attorney-client privilege or work product protection.

To the extent required by your practice, stay abreast of evolving technology. Or make sure you have someone helping you who is doing so!

The advertising and solicitation rules are complicated and vary from jurisdiction to jurisdiction. Know them and do not hesitate to obtain advisory opinions. But recognize that there are conflicting, or at least, not consistent, ethics opinions on a number of social media ethics questions. Caution is the watchword when it comes to Internet legal ethics.

A good reputation is hard to come by and easy to lose.

/jmb


ABOUT THE AUTHOR Mr. Barkett is a partner at the law firm of Shook, Hardy & Bacon L.L.P. in its Miami office. He is a graduate of the University of Notre Dame (B.A. Government, 1972, summa cum laude) and the Yale Law School (J.D. 1975) and served as a law clerk to the Honorable David W. Dyer on the old Fifth Circuit Court of Appeals. Mr. Barkett is an adjunct professor of law at the University of Miami School of Law. He is also the recipient of one of the 2011 Burton Awards for Legal Achievement which honors lawyers for distinguished legal writing. Mr. Barkett has been a member of the Advisory Committee for Civil Rules of the Federal Judicial Conference since 2012. He is now serving for the second time as a member of the American Bar Association Standing Committee on Ethics and Professional Responsibility. He is also a member of the American Law Institute. He is a fellow of the College of Commercial Arbitrators and of the American College of Civil Trial Mediators as well as the American College of Environmental Lawyers.

Mr. Barkett is a commercial (contract, corporate, and banking disputes, employment, trademark, and antitrust) and environmental lawyer (CERCLA, RCRA, and toxic tort) having handled scores of complex and simple litigation matters in Federal and state courts or before an arbitration tribunal.

Mr. Barkett is also a problem solver, serving as an arbitrator, mediator, facilitator, or allocator in a variety of commercial, environmental, and reinsurance contexts. He is a certified mediator under the rules of the Supreme Court of Florida and the Southern and Middle Districts of Florida and a member of the London Court of International Arbitration and the International Council for Commercial Arbitration, and serves on the AAA and ICDR roster of neutrals, and the CPR Institute for Dispute Resolution’s “Panel of Distinguished Neutrals.” He has served or is serving as a neutral in scores of matters involving in the aggregate more than $4 billion. He has conducted or is conducting commercial domestic and international arbitrations under AAA, LCIA, ICDR, UNCITRAL, and CPR rules and has conducted ad hoc arbitrations.

In November 2003, Mr. Barkett was appointed by the presiding judge to serve as the Special Master to oversee the implementation and enforcement of the 1992 Consent Decree between the United States and the State of Florida relating to the multi-billion dollar restoration of the Florida Everglades. He has also served as a Special Master for judges on the Southern District of Florida or the Miami-Dade County Circuit Court to address a wide variety of discovery and e-discovery issues in complex litigation.

Mr. Barkett also consults with major corporations on the evaluation of legal strategy and risk in commercial disputes, and conducts independent investigations where such services are needed. He also is consulted by other lawyers on questions of legal ethics.

Mr. Barkett has published two books, E-Discovery: Twenty Questions and Answers (Chicago: First Chair Press, 2008) and The Ethics of E-Discovery (Chicago: First Chair Press, 2009). Mr. Barkett has also prepared analyses of the Roberts Court the past nine years, in addition to a number of other articles on a variety of topics:

The Roberts Court 2016-17: A Quiet Term, or the Calm Before the Storm? (ABA Center for Professional Responsibility Webinar, August 16, 2017)

Refresher Ethics: Cross Border Issues (ABA National Institute on Cross Border Discovery, Munich, Germany, July 26, 2017)


The Future of the Attorney Client Privilege and Work Product Protection, (ABA National Institute on Cross Border Discovery, Munich, Germany, July 26, 2017 updated from ABA Litigation Section Annual Conference, San Francisco, May 5, 2017)

Arbitration Ethics: A Sampler (Shook, Hardy & Bacon Update on the Law, Kansas City, Missouri, June 22, 2017 updated from a paper presented at the CPR Annual Meeting, Miami, March 3, 2017)

Work Product Protect for Draft Expert Reports and Attorney-Expert Communications (Environmental & Energy Litigation Committee, Section of Litigation, May 30, 2017)

Securing Law Firm Data: When the Advice Givers Need Advice (Shook Hardy & Bacon Private Seminar, May 2017 updating a paper presented at the ABA National Institute on E-Discovery, May 15, 2015, New York)

Lawyer Ethics: E-Communications, Social Media, and the Internet, (ABA Eleventh Annual National Institute on E-Discovery, Chicago, May 11, 2017 updated from DePaul University Law School, Clifford Law Offices Ethics Webinar livestreamed to over 4,000 registrants, Feb. 16, 2017)

Arbitration Ethics: The Duty of Candor, the Unauthorized Practice of Law, and Inadvertent Production of Privileged or Protected Documents (CPR Annual Meeting, Miami, March 3, 2017);

The 2015 Civil Rules Amendments: One Year Later (ABA Center for Professional Responsibility Webinar, December 15, 2016)

Do Arbitrators Have Sanctions Authority in Domestic Arbitrations? Daily Business Review, November 17, 2016.

The Roberts Court 2015-16: An Untimely Death and Its Impacts (ABA Annual Meeting, San Francisco, August 5, 2016)

The First 100 Days (or so) of the 2015 Civil Rules Amendments (Bloomberg BNA Digital Discovery and e-Evidence, 16 DDEE 178 (April 14, 2016) adapted from a longer piece by the same title at http://src.bna.com/d6z.

Antonin Scalia: A Retrospective (ABA Webinar, March 24, 2016) Cheap Talk? Witness Payments and Conferring with Testifying Witnesses (ABA Webinar, October 2015

updating an ABA Webinar, October 2014 which was an update of a presentation first made at the ABA Annual Meeting, Chicago, 2009)

Ethics in ADR: A Sampling of Issues (ABA Webinar, September 30, 2015) The Roberts Court 2014-15: Individual Rights, Voting Rights, Fair Housing, and the Importance of

(Con)Text (ABA Annual Meeting, Chicago, July 31, 2015) Securing Law Firm Data: When the Advice Givers Need Advice (ABA National Institute on E-Discovery,

May 15, 2015, New York) Work Product Protection for Draft Expert Reports and Attorney-Expert Communications (ABA Section of

Litigation Annual Conference, New Orleans, April 2015) Ethics in ADR: A Sampling of Issues (ABA Webinar September 2014 updating an October 31, 2013 webinar

for the Professional Education Broadcast Network)) The Roberts Court 2013-14: First Amendment, Equal Protection, Privacy, and More (or Less) Unanimity

(ABA Annual Meeting, Boston, August 7, 2014) Arbitration: Hot Questions, Cool Answers ( an earlier version of this paper at Shook, Hardy & Bacon

Annual Update on the Law, June 25, 2014, Kansas City) Chess Anyone? Selection of International Commercial Arbitration Tribunals, (Miami-Dade County Bench

and Bar Conference, February 8, 2013 updated for Shook, Hardy & Bacon Annual Update on the Law, June 25, 2014, Kansas City)


Perspectives on the New York Convention Under the Laws of the United States (co-authored with F. Cruz-Alvarez; M. Paulsson, and S. Pagliery) (International Council For Commercial Arbitration 22nd Biennial Congress, April 8, 2014, Miami, Florida)

New Rule 45, 28 N.R.E. 50 (Spring 2014) Refresher Ethics: Steering Clear of Witness Minefields (with Green, Bruce; Sandler, Paul Mark)

(Professional Education Broadcast Network Webinar, May 16, 2014) The Roberts Court 2012-13, DOMA, Voting Rights, Affirmative Action, More Consensus, More Dissent,

(ABA Annual Meeting, San Francisco, August 10, 2013) Ethical Challenges on the Horizon: Confidentiality, Competence and Cloud Computing (ABA-CLE, July

24, 2012; updated, ABA Section of Litigation Annual Conference, Chicago, April 25, 2013) Work Product Protection for Draft Expert Reports and Attorney-Expert Communications (forthcoming)

(ABA Section of Litigation Annual Conference, Chicago, April 26, 2013) Lawyer-Client Fallout: Using Privileged Information To Establish A Claim Against a Client/Employer

(forthcoming) (ABA Section of Litigation Annual Conference, Chicago, April 25, 2013) More on the Ethics of E-Discovery: Predictive Coding and Other Forms of Computer-Assisted Review

(Duke Law School, Washington D.C., April 19, 2013) Evidence Rule 502: The Solution to the Privilege-Protection Puzzle in the Digital Era, 81 Fordham L. Rev.

1589 (March 2013) Neighborly RCRA Claims, 27 N.R.E. 48 (Spring 2013) The Roberts Court 2011-12: The Affordable Care Act and More (ABA Annual Meeting, Chicago, August 3,

2012) Un-taxing E-Discovery Costs: Section 1920(4) After Race Tire Amer. Inc. and Taniguchi (June 29, 2012)

(http://www.shb.com/attorneys/BarkettJohn/UntaxingEdiscoveryCosts.pdf) Barkett, ABA to Tackle Technology Issues in Model Rules at August Meeting,

(http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1202560335059&thepage=3&slreturn=1). Law Technology News (June 25, 2012)

E-Communications: Problems Posed by Privilege, Privacy, and Production (ABA National Institute on E-Discovery, New York, NY, May 18, 2012)

The 7th Circuit Pilot Project: What We Might Learn And Why It Matters to Every Litigant in America (ABA Section of Litigation News Online, December 11, 2011) http://apps.americanbar.org/litigation/litigationnews/civil_procedure/docs/barkett.december11.pdf

Skinner, Matrixx, Souter, and Posner: Iqbal and Twombly Revisited, 12 The Sedona Conference Journal 69 (2011) (Mr. Barkett received the Burton Award for Legal Achievement for this paper).

The Challenge of Electronic Communication, Privilege, Privacy, and Other Myths, 38 Litigation Journal 17 (ABA Section of Litigation, Fall 2011)

Avoiding the Cost of International Commercial Arbitration: Is Mediation the Solution? in Contemporary Issues in International Arbitration and Mediation – The Fordham Papers (Martinus Nijhoff, New York. 2011)

The Roberts Court 2010-11: Three Women Justices! (ABA Annual Meeting, Toronto, August 2011) The Ethics of Web 2.0, (ACEDS Conference, Hollywood, FL March 2011) The Roberts Court: Year Four, Welcome Justice Sotomayor (ABA Annual Meeting, San Francisco, August

2010) The Myth of Culture Clash in International Commercial Arbitration (co-authored with Jan Paulsson), 5

Florida International University Law Review 1 (June 2010) Walking the Plank, Looking Over Your Shoulder, Fearing Sharks Are in the Water: E-Discovery in Federal

Litigation? (Duke 2010 Conference, Civil Rules Advisory Committee, May 11, 2010)


(http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Duke%20Materials/Library/John%20Barkett,%20Walking%20the%20Plank.pdf)

Zubulake Revisited: Pension Committee and the Duty to Preserve, (Feb. 26, 2010) (http://www.abanet.org/litigation/litigationnews/trial_skills/pension-committee-zubulake-ediscovery.html)

Draft Reports and Attorney-Expert Communications, 24 N.R.E. (Winter 2010) From Canons to Cannon in A Century of Legal Ethics: Trial Lawyers and the ABA Canons of Professional

Ethics (American Bar Association, Chicago, 2009) The Robert’s Court: Three’s a Charm (ABA Annual Meeting, Chicago, August 2009) Cheap Talk? Witness Payments and Conferring with Testify Witnesses, (ABA Annual Meeting, Chicago,

2009) Burlington Northern: The Super Quake and Its Aftershocks, 58 Chemical Waste Lit. Rprt. 5 (June 2009) Fool’s Gold: The Mining of Metadata (ABA’s Third Annual National Institute on E-Discovery, Chicago,

May 22, 2009) More on the Ethics of E-Discovery (ABA’s Third Annual National Institute on E-Discovery, Chicago, May

22, 2009) Production of Electronically Stored Information in Arbitration: Sufficiency of the IBA Rules in Electronic

Disclosure in International Arbitration (JurisNet LLC, New York, September 2008) The Robert’s Court: The Terrible Two’s or Childhood Bliss? (ABA Annual Meeting, New York, August

2008) Orphan Shares, 23 NRE 46 (Summer 2008) Tipping The Scales of Justice: The Rise of ADR, 22 NRE 40 (Spring 2008) Tattletales or Crimestoppers: Disclosure Ethics Under Model Rules 1.6 and 1.13, (ABA Annual Meeting,

Atlanta, August 7, 2004 and, in an updated version, ABA Tort and Insurance Practice Section Spring CLE Meeting, Phoenix, April 11, 2008)

E-Discovery For Arbitrators, 1 Dispute Resolution International Journal 129, International Bar Association (Dec. 2007)

The Roberts Court: Where It’s Been and Where It’s Going (ABA Annual Meeting, San Francisco, August, 2007)

Help Has Arrived…Sort Of: The New E-Discovery Rules, ABA Section of Litigation Annual Meeting, San Antonio (2007)

Refresher Ethics: Conflicts of Interest, (January 2007 ABA Section of Litigation Joint Environmental, Products Liability, and Mass Torts CLE program)

Help Is On The Way…Sort Of: How the Civil Rules Advisory Committee Hopes to Fill the E-Discovery Void, ABA Section of Litigation Annual Meeting, Los Angeles (2006)

The Battle For Bytes: New Rule 26, e-Discovery, Section of Litigation (February 2006) Forward to the Past: The Aftermath of Aviall, 20 N.R.E. 27 (Winter 2006) The Prelitigation Duty to Preserve: Lookout! ABA Annual Meeting, Chicago, (2005) The MJP Maze: Avoiding the Unauthorized Practice of Law (2005 ABA Section of Litigation Annual

Conference) Bytes, Bits and Bucks: Cost-Shifting and Sanctions in E-Discovery, ABA Section of Litigation Annual

Meeting (2004) and 71 Def. Couns. J. 334 (2004) The CERCLA Limitations Puzzle, 19 N.R.E. 70 (Fall, 2004) If Terror Reigns, Will Torts Follow? 9 Widener Law Symposium 485 (2003)

Mr. Barkett is also the author of Ethical Issues in Environmental Dispute Resolution, a chapter in the ABA publication, Environmental Dispute Resolution, An Anthology of Practical Experience (July 2002) and the


editor and one of the authors of the ABA Section of Litigation’s Monograph, Ex Parte Contacts with Former Employees (Environmental Litigation Committee, October 2002).

Mr. Barkett is a Fellow of the American College of Environmental Lawyers and also a former member of the Council of the ABA Section of Litigation. At the University of Miami Law School, Mr. Barkett teaches two courses, “Environmental Litigation” and “E-Discovery.”

Mr. Barkett has been recognized in the areas of alternative dispute resolution or environmental law in a number of lawyer-recognition publications, including Who’s Who Legal (International Bar Association) (since 2005); Best Lawyers in America (National Law Journal) (since 2005); Legal Elite (since 2004), (Florida Trend), Florida Super Lawyers (since 2008), and Chambers USA America’s Leading Lawyers (since 2004). Mr. Barkett can be reached at [email protected].