ABA Section of Litigation 2012 Section Annual Conference April 18-20, 2012: Legal Marketing in a Web 2.0 Environment – Top Ten Mistakes to Avoid
Like PB&J, Ethics and Web
Marketing Go Together
Lisa M. Vaughn Berea, Kentucky
There has been many a terse tweet regarding the ABA's guidance on the use of the Internet for client relations, client development, and marketing initiatives. In response to this discourse, individuals (attorneys, marketers, and attorney-marketers alike) have seemed to divide themselves into two camps: (1) those so wary of the hazards of the “wild west” of the Web that they shun any online participation, and (2) those cowboys who take pride in pushing the ethical boundaries of Internet marketing, claiming any rules are an infringement.
As with most things, when extremes develop on both ends of a spectrum, the truth lies somewhere in the middle... as is the case with ethics rules and online marketing. The truth of the matter is that good marketing and compliance with ethics standards are not like oil and water, but rather like PB&J.
Let’s consider some practical examples, including effective online content, the integration of chat utilities, social media interactions, and Web marketing activities in general.
ONLINE CONTENT
An Internet marketing campaign of any size will generate a substantial amount of online content, usually in many formats. The most obvious type of content is written text as found on most law firm websites. But “online content” also refers to a broad range of information delivery, including blog posts, social media updates, online video, and even ad text used in pay-per-click advertisements. It is important to realize that the ethics guidelines that apply to the delivery of information about your law firm and/or legal services apply to all online content, regardless of format.
The Benefits of Your Marketing Initiatives Diminish if the Website Visitor Misunderstands or is Misled by your Online Content.
The online content provided by your law firm as part of your Web marketing activities must adhere to the ethics standards established by your state bar association. While not binding in any particular
jurisdiction, ABA Formal Ethics Opinion 10-457 provides an overview of some of the ethics obligations that should be considered during the development of any online content, in whatever format.
“Websites have become a common means by which lawyers communicate with the public. Lawyers must not include misleading information on websites, must be mindful of the expectations created by the website, and must carefully manage inquiries invited through the website.” –
ABA Standing Comm. on Ethics and Prof’l Responsibility, Formal Opinion 10-457 (2010).
Formal Opinion 10-457 recognizes that, considered together, Model Rules of Professional Conduct 7.1, 8.4(c), and 4.1(a) prohibit a law firm from making false, fraudulent or misleading statements. In short, “no website communication may be false or misleading, or may omit facts such that the resulting statement is materially misleading.” Indeed, the value of your Web marketing activities is realized through the dissemination of content that assists the public in accessing information that educates (in the terms of Formal Opinion 10-457) “about the law, legal institutions, and the value of legal services” and/or about the specific qualifications and services of a lawyer or law firm. As part of a firm’s efforts to comply with ethics obligations, online content should be updated and accurate. For example, lawyers should avoid the inclusion of any statements that could create unjustified expectations (e.g., the “best” law firm; “the experts in our field”) and be proactive in updating content related to firm attorneys, legal services offered, and jurisdictions covered.
Ensuring that your website content is up to date and accurately reflects your law firm’s services and qualifications is not only sound adherence to ethics rules; it protects and enhances the value of your Web marketing investment. Google, and other search engines (SEs), have invested vast amounts of money and manpower to speed up the delivery of information. These initiatives have included upgrades to and massive expansion of server networks, a constant string of algorithm changes, new tools to help
Webmasters deliver content more quickly to the SEs, et al. The entire process of information delivery is continually being pushed to newer and faster limits.
Search engines place a premium on websites with fresh content. Your law firm’s Web properties should deliver quality content that is regularly updated. This will benefit both your viewing audience and promote improved performance and visibility in the search engines.
An Increasingly Common Ethics Pitfall: The Issue of “Duplicate Content.”
An increasing number of Web marketing vendors are advertising their services to law firms. These Internet marketing companies are often generalists and are unfamiliar with the particular obligations of attorneys to the public. They are frequently uninformed and, consequently, their website development practices can place their client -- your law firm -- at risk. One of these practices involves the copying of content from other sources for use on your law firm’s website(s).
This practice is usually pursued because (a) time is of the essence in online marketing, and stealing another firm’s content is expeditious; (b) avoiding custom content development keeps project expense down; and (c) often a non-legal-specific Web marketing vendor simply doesn’t know any better and is uninformed about the potential ramifications to your firm by their actions.
Model Rules 5.1 and 5.3, however, extend an obligation to a firm’s managing lawyers to make reasonable efforts to ensure the firm has in place measures to assure compliance with the rules of professional
conduct. This could easily be interpreted to mean that managing lawyers must extend reasonable efforts to ensure their website content is not in violation of copyright laws or in breach of ethics rules.
While duplicating content from one website to another may be seen as cost-efficient and expeditious by a Web vendor, not only does it pose risks for law firms, it is also ineffective marketing. “Duplicate content” is banned by Google and will devalue your website at best and can result in your firm’s content being tossed out of the search index completely. Additionally, duplicative content is of diminished value to Web users. Web marketing strategies that offer Web users unique information and benefits will always
outperform campaigns that are of limited creative value.
Ensuring that your online content, in all its formats, is updated, accurate, and uniquely yours will keep your Web marketing compliant with the ethics rules while also promoting maximum performance and return from your Web marketing campaigns.
ONLINE CHAT UTILITIES
Online “Communications” Can Create Unexpected Duties
On June 29, 2011, the Technology Working Group of the ABA’s Commission on Ethics 20/20 unveiled an Initial Draft Proposal on Lawyer’s Use of Technology and Client Development that recommended a few clarifications to Model Rules of Professional Conduct 1.18, 7.2, and 7.3. One notable suggestion throughout is the substitution of the word “communications” for “discussions” – so as to encompass all types of digital transmissions, including email, online forms, online chats, social media postings, etc.
Rule 1.18 deals with duties to a “prospective client” and the “reasonable expectations” in the formation of a client-lawyer relationship that give rise to those duties. The Ethics 20/20 draft proposal leaves
unchanged a comment to this rule expressly providing that, “A person who communicates information unilaterally to a lawyer, without any reasonable expectation that the lawyer is willing to consider the possibility of forming a client-lawyer relationship, is not a ‘prospective client’ within the meaning of paragraph (a).”
This is certainly common knowledge and is acceptable practice by most attorney-advertisers; but in the context of online marketing, this standard raises new questions. Consider online chat utilities that automatically pop up on a law firm’s website and encourage the visitor to share their legal concerns with an online operator. Does this type of unilateral sharing of information bind the law firm to a client-lawyer
relationship? What expectations are formed by the visitor if no disclaimers are offered via the chat interface? Does the individual presume they are, in fact, chatting and communicating directly with a lawyer? If the chat utility is personally manned by attorneys at your firm, is that communicated to the visitor?
Without the proper disclosures, your Website visitor can easily have reasonable expectations that they are communicating directly with a lawyer from your firm and that they are a prospective client (affording them all the protections and obligations of “prospective clients” under the Model Rules of Professional Conduct). Recently, North Carolina’s bar has gone so far to advise that law firms include live chat discussions in their internal conflicts-checking system, as confidential information could be disclosed during a chat session, thereby creating a potential conflict of interest.
Online “Communications” Need to Avoid Deception or Overreaching
When considering the use of online chat utilities for your website, not only is it important who is facilitating the “communications” on behalf of your firm, but what they say is also significant.
While who is communicating via chat with your website visitor is relevant under Model Rule 1.18, the what being communicated should be guided by Model Rule 7.2.
The ABA’s guidelines for ethical conduct in advertising consistently uphold the notion that there is value to the public in obtaining information about legal services. The Ethics 20/20 proposal suggests the inclusion of comments to Rule 7.2 that support not only access to information about a lawyer’s services but also promote “learning about” legal services. They acknowledge that the Internet is a “powerful media for getting information to the public, particularly persons of low and moderate income”. In short, Rule 7.2 promotes dissemination of information that may encourage accessibility to a law firm and
understanding (“learning”) about legal services.
The broadening of Rule 7.2 beyond also opens the door for error. The proposal does not alter previous comments that warn “advertising by lawyers entails the risk of practices that are misleading or
overreaching.” This cautionary note should be applied as a guiding principle for all online chat
communications. By the dynamic, conversational nature of online chat, your firm can unknowingly cross into ethical grey areas.
Best Practices for Online Communications
The definition and implementation of a few good practices regarding the contents of online chat communications can help minimize the potential for conflicts.
- Maintain strict control over who is serving as operator of your online chat utility. Whether it is a paid service, in-house representative, or attorneys at your firm who are responsible for the
communication, make clear their obligations to the Website visitor and the types of red flags they should avoid (e.g., accepting confidential information; creating a “prospective client” relationship; etc.). Test your own chat utility on a routine basis to quality control this process anonymously.
- Craft a script that reflects the types of information you are willing to accept via chat, the amount of information you are comfortable sharing (avoiding anything that could be construed as “legal advice”), while still obtaining enough details of the visitor’s circumstances to determine if there is a claim to discuss further offline.
(a) Clear, visible, and explanatory disclosures regarding who your website visitor is chatting with can help avoid confusion regarding the “prospective client” relationship and/or accidentally creating a client-lawyer relationship.
(b) Consider integrating online chat transcripts with your firm’s internal conflicts check, as appropriate, to avoid stumbling into any conflicts of interests.
(c) Be thoughtful about who you have serving as a chat operator and ensure they are informed about their obligations in handling these “communications” for your firm.
(d) Require strict adherence to a chat transcript that helps to avoid any missteps by the chat operator (even if that chat operator is you!).
The above suggestions are also key components of successful marketing. Making sure your visitor knows who they are chatting with allows the person to quickly establish appropriate expectations. Be open with your website visitor about what information your firm feels comfortable accepting and providing through the chat and avoid ‘leaving them hanging’ by clearly outlining what the next steps are following the chat session. When you call your physician’s office you don’t immediately start to ask the receptionist about your medications – you reserve those questions for medical staff. You know the rules, your expectations are accurately defined, and you have a positive experience by going through the proper channels.
If your website visitor is misled to believe they are talking with an attorney when they are not; if they are under the impression they are receiving legal advice when they are not; or if they believe a client-lawyer relationship has been formed when it hasn’t, this will lead to disappointment at some phase in the communications. (Reminder: This is exactly the sort of disappointment that leads to frustration that can result in poor comments online about your firm and work against your reputation management
initiatives.)
Effective marketing can help to define accurate expectations in order to encourage positive business relationships. Following the above suggestions regarding the utilization of online chat applications will facilitate adherence to ethics standards while allowing you to benefit from the use of online chat as an additional means of communication with your website visitor.
SOCIAL MEDIA MARKETING
A 2012 study conducted by eConsultancy and Direct Marketing Association showed that the biggest threat to email marketing was the challenge posed by social media and texting. The data revealed a growing number of young adults migrating away from email communications toward social media and texting functionality. The statistics surrounding the emergence of social media as the number one activity on the Web can’t be ignored. With Facebook generating more weekly traffic than Google, no effective online marketing strategy can ignore social media marketing; consequently, no attorney should remain uninformed about the ethics obligations tied to social media activity.
The ABA Ethics 20/20 Commission's Working Group on the Implications of New Technologies issued a September 2010 Issues paper entitled “Lawyers' Use of Internet Based Client Development Tools.” That paper suggests that “[b]ecause lawyers frequently use the websites and services for both personal and professional reasons, the legal ethics issues in this context are more complicated than they might have been for more traditional client development tools.” While social media does present a new, more dynamic online environment for real-time communications, however, the obligations for ethical conduct in social media use are no more “complicated” than those of an in-person meeting, phone call, or
interaction at a non-digital social event like a cocktail party. In all social interactions, digital or
otherwise, lawyers should be mindful to communicate in a way that is congruent with the rules regarding the creation of client-lawyer relationships, confidentiality, conflicts of interest, and avoiding misleading or false statements. This should also apply to online social interactions with the public through social media platforms including Facebook, LinkedIn, Twitter, and others.
While the easiest response to any confusion regarding social media marketing may be to opt not to pursue these types of communications, that is not the most effective marketing decision. Social media tools like Facebook, LinkedIn, Twitter and others offer a variety of benefits, including cost-effectiveness,
facilitation of a broad professional network (and, consequently, referral channels), additional visibility and accessibility for your firm, and additional mediums through which to educate the public about legal topics. Facebook, in particular, offers you the opportunity to put a more personal face to your law firm, allowing potential clients to get to know more about the culture and personality of your firm.
Attorneys start to get into trouble with social media marketing when they use these platforms to communicate or behave in a way that they wouldn’t on their websites. If content is not appropriate for your professional website(s), then it is safest to assume it is not appropriate for your publicly accessible social media profiles.
A thorough understanding of the applicable Ethics Rules and commitment to the adherence of these obligations will help avoid missteps in the social media world. For example:
Model Rule 7.2 prohibits offering value in exchange for a recommendation and should discourage the trading of recommendations tit-for-tat on LinkedIn.
Collectively, Model Rules 7.1, 8.4(c), and 4.1(a) prohibit a law firm from making false,
fraudulent or misleading statements, and this applies to the accuracy of your publicly accessible social media profiles.
Model Rule 7.3 regarding direct client solicitation would clearly prohibit an attorney’s use of Facebook to research and contact individuals with whom the lawyer has no family ties or prior professional relationship for the purpose of soliciting professional employment.
Social media tools have become a commonly utilized means for communication. While the real-time speed of these communications, along with the inherent conversational nature of these interactions, might make it seem like an environment fraught with ethical risks, the truth is that the same Rules apply as in all lawyer advertising and communications.
Managing your social media interactions with adherence to the Model Rules for Professional Conduct will help you maximize the potential marketing value of these interactions as well. One of the unique benefits of social media marketing is that these tools provide you an opportunity to share and connect with others on a more personal level. This is a good thing. When we are able to identify connections with others and we feel more informed and comfortable about another person, the odds of our communicating with that other individual go way up. No other advertising medium (print, television, radio, or more traditional online marketing initiatives) offers this unique benefit.
What happens in a real-world social circle when statements are made that are misleading or inaccurate? What happens when expectations are unrealistic or are frustrated? The social interactions are
compromised, resulting in damage to reputation and lost opportunities. The same holds true for social media interactions.
Connecting with others through a social network (online or offline) is good marketing. Ensuring that those social interactions adhere to ethics guidelines will make these activities even more successful.
CONCLUSION
The potential return on investment generated by successful Web marketing campaigns is growing as consumers rely more heavily on the Internet for information, referrals, and access to legal services. Whether looking at the effectiveness of online content, the integration of chat utilities, social media marketing, or other Web marketing strategies, remaining consistent with ethics rules and obligations only serves to enhance the value of those investments of time and money. Adherence to ethics rules contributes to the success of your Web marketing campaign and works for the good of the firm and the legal
