ABA issues ethics opinion on website marketing

Lawyers and law firms are increasingly using websites to market their services and to communicate information to help potential clients understand the law. 
A new ethics opinion, issued recently by an American Bar Association committee, provides guidance to help lawyers avoid potential pitfalls and protect the public.
“A lawyer website can provide to anyone with Internet access a wide array of information about the law, legal institutions and the value of legal services.  Websites also offer lawyers a 24-hour marketing tool by calling attention to the particular qualifications of a lawyer or a law firm, explaining the scope of the legal services they provide and describing their clientele,” says Formal Opinion 10-457 from the ABA Standing Committee on Ethics and Professional Responsibility.  But, the opinion adds, “[t]he obvious benefit of this information can diminish or disappear if the website visitor misunderstands or is misled by website information and features.” 
For lawyers, “website marketing can give rise” to problems when website visitors seeking legal advice rely on material posted only as general information and not intended to apply to specific situations, or make unexpected inquiries or unexpectedly provide confidential information.
The opinion offers examples of how problems can arise from website marketing, and provides guidance on how to avoid them.  It relates specific concerns to provisions of the ABA Model Rules of Professional Conduct.
Lawyer postings on websites are subject to prohibitions in model rules 8.4(c) and 4.1(a) against making false or misleading statements, just as is any other form of communication, and thus may neither contain false or misleading information nor omit information necessary to avoid being misleading, notes the opinion.  ebsites also should carry disclaimers and distinguish between general information and legal advice.
Confidentiality of client information and disqualification of the lawyer due to conflicts of interest also may be implicated by website communication, the opinion notes. 
When a visitor to a lawyer’s website provides information specific to that person’s own legal concern, the exchange may create a “prospective client” relationship, depending on whether the lawyer has invited submission of such information, or on how the lawyer responds.
If a “prospective client” relationship is created, even one that does not mature into an actual client-lawyer relationship, the lawyer would have a duty to treat information provided as confidential, and could face conflict of interest prohibitions on representing other individuals in the same or other legal matters.
Lawyers can avoid creating “prospective client” relationships by posting adequate warnings or cautionary statements to limit, condition or disclaim any obligation to a website reader, and can limit such relationships by clearly stating limitations in initial discussions. 
To be effective, limitations posted on websites must be properly placed, reasonably understandable and not misleading.  Even effective disclaimers can be undercut if the lawyer acts or communicates contrary to the warning.
Formal Opinion 10-457 is available from the ABA Center for Professional Responsibility at http://www.abanet.org/cpr. 

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