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When is it okay to boast about your professional accomplishments online? Say, in blog posts or tweets? And what about in your firm biography, Google profile and Martindale.com listing? To help set us straight, we asked preeminent ethics expert Will Hornsby to explain some of the stickier rules surrounding marketing legal services. In this first installment of his three-part series, he takes on client confidentiality issues.
Law firm websites come in all shapes, sizes and colors, but most have a section with lawyers’ biographies—education, bar memberships, awards, civic involvement and, most importantly, a sampling of successful representations. Are you paying attention to the ethical implications of your online bio? Most lawyers are well aware of the basic rules that govern lawyer advertising, i.e., prohibitions against false or misleading representation and labeling and disclaimer requirements, for example. But the obligation to maintain confidentiality when listing a lawyer’s accomplishments in an online bio frequently flies under the radar screen.
Each U.S. state has one of two versions of the ethics rule governing client confidentiality, and the differences have created some confusion about the lawyer’s responsibility when boasting about accomplishments online. The less common, or minority rule, prohibits a lawyer from revealing the client’s “secrets or confidences.” The more common rule among the states, however, follows ABA Model Rule 1.6 and prohibits “information relating to the representation of the client.”
What’s the difference? When it comes to marketing legal services, it is huge.
Obviously, when the result of a case is on the front page of the newspaper it is not a “secret or confidence.” There is no ethical bar on the lawyer communicating this otherwise publically known information in states with the minority rule. Twitter away. Blog on. But that public information, whether it is through court filings or in the newspaper, is “information relating to the representation”—which under the majority rule, the lawyer does not have the unrestrained right to reveal, even if it publicly known. Even the fact that the firm represents the client may be considered information about the representation.
The right of confidentiality, you see, belongs to the client. And, the client has the right to decide if the lawyer can use that information for marketing purposes. The rule prohibits a lawyer from revealing information about the representation unless the client gives “informed consent.” (Note there are other exceptions to confidentiality, but they do not relate to client development.) So, a lawyer or firm merely needs to obtain the client’s permission.
Common sense tells us we want to get the client’s permission before talking about a representation, but this is sometimes overlooked when we use technology to boast of our successes. A law firm may want to be the first to tweet about a jury verdict, for example. Some overlook the need to get permission when posting successes in those online bios as well.
Occasionally, a lawyer might conclude that veiling the information in generalities dodges the obligation to get the client’s consent— “Successfully represented a multi-national corporation in one of New Jersey’s largest challenges to pollution emissions” or “ Obtained a multi-million dollar settlement in a birth-defect claim against Peoria’s largest hospital.” But the question to ask yourself is this: Is this “information about the representation?” Of course it is.
Get the client’s consent before including information in your marketing efforts.
This material should not be construed as legal advice or the policy of the ABA or any of its constituent entities.
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