Do the ethics rules limit what I can put on my law firm website, and can a website inquiry create duties to a prospective client?

Plain-English summary

The opinion addresses the ethics issues raised by lawyer and law firm websites, dividing them into website content, information about the law, and the handling of visitor inquiries. On content, it concludes that biographical and firm information, and any description of current or former clients or results, is a "communication about the lawyer or the lawyer's services" subject to Rule 7.1 and to the prohibitions on false or misleading statements in Rules 8.4(c) and 4.1(a). Accurate, non-misleading information is permitted and should be updated regularly; client-identifying information may be disclosed only with informed consent under Rules 1.6 (current clients) and 1.9 (former clients), because website promotion is not impliedly authorized disclosure. Rules 5.1 and 5.3 extend the obligation to managerial lawyers.

On legal information, the opinion concludes that lawyers may offer accurate general legal information that does not materially mislead a reasonable reader, and recommends qualifying statements or disclaimers characterizing the information as general and not a substitute for personal legal advice. It notes there is no exact line between legal information and legal advice, but that context and content matter: answering a fact-specific question tied to the reader's circumstances looks like advice, while a hypothetical generally does not.

On inquiries, the opinion analyzes Rule 1.18 (duties to prospective clients). A "prospective client" is a person who "discusses with a lawyer the possibility of forming a client-lawyer relationship," which contemplates a two-way communication. The opinion concludes that a website specifically requesting or inviting submission of information about a possible representation creates a "discussion" under Rule 1.18 when a visitor submits that information, while a site that merely lists contact information does not, though the lawyer's response to an inquiry may begin a discussion. Once a Rule 1.18 discussion occurs, Rule 1.18(b) bars use or disclosure of information learned, and Rule 1.18(c) can disqualify the lawyer and firm from adverse representation where "significantly harmful" information was received, subject to the informed-consent and screening exceptions in Rule 1.18(d). The opinion concludes that warnings or disclaimers can limit, condition, or disclaim a lawyer's obligations only if they are reasonably understandable, conspicuously placed, in the website's language, and not undercut by the lawyer's contrary conduct.

In practice

Under this opinion, a lawyer building or maintaining a website must keep its content accurate and not misleading under Rules 7.1, 8.4(c), and 4.1(a), and must obtain client consent before naming clients or describing matters. The opinion holds that general legal information should carry a clear "not legal advice" caution, and that a site inviting inquiries can create Rule 1.18 prospective-client duties, including confidentiality and potential disqualification. It concludes that conspicuous, understandable disclaimers, placed so a visitor sees them before submitting information, can limit those duties, while a disclaimer is ineffective if the lawyer acts contrary to it.

Common questions

Q: Can I list my firm's past results and clients on my website?

A: With care, and with consent for clients. The opinion concludes results and case information must be accurate and not misleading under Rules 7.1, 8.4(c), and 4.1(a), and that naming current or former clients or their matters requires informed consent under Rules 1.6 and 1.9.

Q: Does a "contact us" form mean the inquirer is a prospective client?

A: It can. The opinion concludes that a website specifically inviting submission of information about a possible representation creates a Rule 1.18 "discussion" when the visitor submits it; a site merely listing contact information does not, though the lawyer's response may start one.

Q: If someone emails me details before I am retained, can I still take the other side?

A: It depends on what was disclosed. The opinion concludes Rule 1.18(c) can disqualify the lawyer and firm where "significantly harmful" information was received, unless the informed-consent or screening exceptions of Rule 1.18(d) apply.

Q: Do disclaimers actually protect me?

A: Only if done properly. The opinion concludes a disclaimer is effective only if reasonably understandable, conspicuously placed before the visitor submits information, in the site's language, and not contradicted by the lawyer's own conduct.

Background and rules framework

The opinion interprets Model Rule 7.1 (communications about a lawyer's services), Rules 8.4(c) and 4.1(a) (false or misleading statements), Rules 1.6 and 1.9 (confidentiality of current and former client information), Rule 1.18 (duties to prospective clients, including 1.18(b), (c), and (d)), and Rules 5.1 and 5.3 (supervisory responsibilities). It draws on a wide range of state and local ethics opinions on websites, listservs, and email inquiries.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 7.1 (communications about a lawyer's services)
• ABA Model Rules 8.4(c), 4.1(a) (false or misleading statements)
• ABA Model Rules 1.6, 1.9 (client and former-client confidentiality)
• ABA Model Rule 1.18 (duties to prospective clients), including 1.18(b)-(d)
• ABA Model Rules 5.1, 5.3 (supervisory responsibilities)

Cases:

• Barton v. U.S. District Court, 410 F.3d 1104 (9th Cir. 2005), website questionnaire and attorney-client privilege
• Specht v. Netscape Communications Corp., 306 F.3d 17 (2d Cir. 2002), notice and assent to online terms

Other opinions cited:

• ABA Formal Op. 90-358 (1990): protection of information imparted by a prospective client
• ABA Formal Op. 09-455 (2009): client-identifying information not impliedly authorized for disclosure

See also

• ABA Formal Op. 492: Obligations to Prospective Clients
• ABA Formal Op. 510: Avoiding Imputation of a Prospective-Client Conflict
• ABA Formal Op. 480: Confidentiality in Blogging and Public Commentary

Source

• Landing page: ABA Formal Ethics Opinions index
• Original PDF: aba-formal-opinion-10-457.pdf