by Jeanne M. Huey
With the rise of attorney listing and referral services on the internet comes the risk that what starts out as a simple listing—something as basic as the Yellow Pages—can turn into something that violates the Texas Disciplinary Rules of Professional Conduct (the Rules).
Most online lawyer listing services start with a simple request to “claim” your profile and confirm that your information is correct. So far so good. But then you may get emails and calls from the service asking if you want to pay for an ‘enhanced’ listing or to have clients referred to you, or to give advice online. At that point you must be cautious because these additional services may run afoul of the limitations on attorney advertising and fee splitting in the Rules.
The easiest way to avoid a violation of the Rules is to confirm that whatever listing you sign up for includes only those materials specifically exempt from the submission and approval process by the Advertising Review Committee (ARC). That list appears in Rule 7.07(e). The permitted information—traditionally called “Tombstone” advertising—can be freely used to populate your profiles on every listing service and social media site. It includes things like your name, address, phone number, dates of admission to the bar, federal courts, foreign language ability, and other publicly available information. If true, all of this information is regarded as unlikely to mislead the general public and therefore exempt from the requirement of advertising pre-approval by the ARC.
If you are unsure about something you want to put on a listing service you can apply this three-pronged filter, suggested by Gene Major, the State Bar Staff liaison to the ARC:
1. Exclude personally identifiable and client-related information; that is, do not reveal client confidences;
- Populate your profiles only with identifying information exempt from review under 7.07(e) and
- Know, set, and monitor the privacy settings for every social media outlet, listing, or referral site you use in order to limit access to and use of personally identifiable information about your followers, because they are likely to be clients.
You can be confident about participating in attorney directories and listings if you stick to the basics. If you have a more aggressive marketing approach in mind, whether it is on a listing service or through your own web site then you need to be familiar with and follow all the Rules, including those concerning lawyer advertising (Rule 7) which sets out the pre-approval requirements.
You must also use care when responding to online reviews or negative comments about your practice on the internet. It is always tempting when attacked to give a substantive response to defend yourself, but any such response is very likely to reveal information about the client and the matter you were hired for. The confidentiality provisions in Rule 1.05 do not contain any exception for disclosing client confidences when responding to negative reviews on the internet, and the definition of confidential information is extremely broad. Think carefully before you publish any response about whether the information you are using came from the client or was obtained while representing the client for such information, no matter where else it might appear, likely constitutes a client confidence that you cannot reveal. Check out the Texas Committee on Professional Ethics Opinion 662 on this issue for a suggested response that a Texas attorney can make to a negative review without violating the Rules.
Finally, be cautious dealing with services that refer clients or offer to pay for advice. Recent ethics’ opinions from other states with similar rules of professional conduct find that the legal services programs offered by some online attorney directory services constitutes an impermissible fee-sharing and/or referral service. There is no Texas opinion on this issue, but given the similarity of our Rules to those of the states that have considered the question prudence suggests caution about any arrangement that involves a fee for referrals or participation in an online marketing program. (See Rules 5.04 and 7.03). You should carefully analyze each program and keep up with the latest ethics opinions before making a decision that might run afoul of the Rules.