Excerpted from The Ethical Oregon Lawyer (OSB Legal Pubs 2015), chapter 2 “Marketing, Advertising, and Solicitation” by David J. Elkanich.
§ 2.4 ADVERTISING
Lawyer advertising, marketing, and self-promotion have changed markedly over the years. Prior versions of this chapter may have focused almost exclusively on business cards, Yellow Page ads, letterheads, and solicitation; and although this chapter still addresses those topics, it is important to pause and reflect on the ever-evolving nature of lawyer advertising.
Lawyers have been turning to the Internet in increasing numbers as a means of self-promotion. Almost all law firms have their own website, and lawyers now may create blogs to provide general legal analysis, send out e-mail alerts on new cases, use Internet directories and referral services, and join group advertising to develop larger and more effective websites. Lawyers may study web traffic and become proficient in “SEO” (search-engine optimization), and may need to understand “Adwords” and “pay per click advertising.” Other lawyers may join social media (such as Twitter or Facebook) to expand and develop their Internet presence. Over recent years, bar associations have begun responding to the proliferation of lawyer and law-firm websites and other forms of Internet activity by lawyers by modifying or clarifying the extent to which the rules governing lawyer advertising and solicitation extend to these activities.
For lawyers who are subject to regulation by Oregon, no reported decisions currently exist concerning the applicability of the rules governing advertising and solicitation to most types of Internet activity, such as lawyer websites, nor do the Oregon rules expressly regulate such activity to any substantial extent. However, the rules expressly address the related area of electronic-mail communications and real-time communications (see § 2.4-3; § 2.6-1 of The Ethical Oregon Lawyer), and at least one ethics opinion deals with whether (and when) lawyers may accept Internet-based referrals and how they can pay for that service. See, e.g., OSB Formal Ethics Op No 2007-180 (“Internet Advertising: Payment of Referral Fees”).
Note: However, numerous ethics opinions address how lawyers navigate an electronic practice, including the Internet and other electronically derived issues. See, e.g., OSB Formal Ethics Op No 2005-164 (“Communicating with Represented Persons: Contact Through Web Sites and the Internet”); OSB Formal Ethics Op No 2011-187 (rev 2015) (“Competency: Disclosure of Metadata”); OSB Formal Ethics Op No 2011-188 (rev 2015) (“Information Relating to the Representation of a Client: Third-Party Electronic Storage of Client Materials”); OSB Formal Ethics Op No 2013-189 (“Accessing Information about Third Parties Through a Social Networking Website”).
An increasing number of jurisdictions have addressed Internet-related issues in reported decisions, and these decisions may provide insights into how the Oregon rules will be applied to Internet activity. For a description of efforts in other states, see ABA/BNA Lawyers’ Manual on Professional Conduct 81:551–81:574 (2014); 81:2012–81:2014 (2013) (supplemented periodically) (summarizing state regulatory activity in this area). The ABA Center for Professional Responsibility’s website lists resources concerning technology and marketing. See <www.abanet.org/ cpr>.
For a discussion of how the usual principles governing lawyer advertising and solicitation will or should work as applied to the Internet, see Louise L. Hill, Change Is In the Air: Lawyer Advertising and the Internet, 36 U Richmond L Rev 21 (2002); Louise L. Hill, Lawyer Communications on the Internet: Beginning the Millennium with Disparate Standards, 75 Wash L Rev 785 (2000); J. Clayton Athey, The Ethics of Attorney Web Sites: Updating the Model Rules to Better Deal with Emerging Technologies, 13 Geo J Legal Ethics 499 (2000); and Peter R. Jarvis & Bradley F. Tellam, Competence and Confidentiality in the Context of Cellular Telephone, Cordless Telephone, and E-Mail Communications, 33 Willamette L Rev 467 (1997) (addressing limits placed on communications by rules governing advertising and solicitation).
Lawyers disseminating information via the Internet should take account of the multijurisdictional character of the dissemination. Information included on an Oregon lawyer’s website will be disseminated in other jurisdictions. Given the myriad restrictions placed on lawyer advertising by state regulators, it would be at least impractical to suggest that lawyer advertisements on the Internet must comply with each state’s regulatory scheme. However, the inherent multijurisdictional nature of Internet communications has led some commentators to favor replacing the current state-by-state approach to the regulation of lawyer self-promotion with a national standard. See, e.g., William E. Hornsby, Jr., Ad Rules Infinitum: The Need for Alternatives to State-Based Ethics Governing Legal Services Marketing, 36 U Richmond L Rev 49 (2002). Unless and until a national approach is adopted, lawyers must determine which states’ rules to follow in communicating through the Internet. For Oregon lawyers, Oregon’s choice-of-law provision provides some assistance in making this determination. See § 2.7.
Practice Tip: Although the law in this area is not well-developed, the existing decisional law from other jurisdictions indicates that lawyers’ dissemination of information via the Internet is likely to be treated as advertising and solicitation. See, e.g., California Formal Op Interim No 12-0006 (2015) (a blog that is part of a lawyer’s professional website, or that otherwise expresses the lawyer’s availability for professional employment, is subject to the rules regulating lawyer advertising). See also New York State Bar Ethics Op 967 (2013) (a blog written by a lawyer, “the primary purpose of which is not retention of the attorney,” is not subject to the advertising rules).
Internet communications can take a number of forms, at least some of which do not fit comfortably into the traditional advertising and solicitation paradigm. See, for example, California Formal Op No 2012-186, which discusses whether social-media communications (such as through Facebook or Twitter) are lawyer advertising. Lawyers using the Internet should at the very least assume that the basic requirement that information be truthful and nonmisleading will apply to Internet communications. These restrictions should be considered with respect not only to the content of lawyers’ websites, but also to their domain names.
Caveat: Lawyers who advertise in Oregon should be aware that the Oregon Rules of Professional Conduct are not the sole legal constraints on lawyer advertising. Oregon statutes prohibiting unfair trade practices also apply. See ORS 646.605–646.656; ORS 646.881–646.885.