Lawyers Cannot Misrepresent Their Amount of Experience, Kinds of Expertise, Availability of Locations and the Like in Their Websites, Even if the Website is Up Only for a Short Time
On May 9, 2011, the South Carolina Supreme Court issued a decision in which it publicly reprimanded a lawyer, imposing a fine of $1,000, and the completion of the Ethics School and the Advertising School of the Legal Ethics and Practice Program (plus the payment of the costs of disciplinary proceeding). The lawyer had exaggerated his credentials in his website. In another industry, someone might call it “commercial puffery” but we are speaking of a lawyer; the Court considered that misleading advertising. The website stated that (i) Mr. Wells had “worked in the legal environment for over twenty years” (when actually he had been practicing for seven years); (ii) the law firm had “numerous trained and experienced attorneys” (when the two associates had only been admitted for less than one year); (iii) “attorneys handle all types of legal matters in state and federal court in South Carolina” (when it was not the case); (iv) the firm represents clients “in every level of the South Carolina state court system” (when again it was not true); (v) every attorney of the firm focused only in one area of the law (when the site listed 27 areas and the firm only had 3 attorneys); (vi) the firm had served clients in constitutional law, civil rights, ethics and professional responsibility, and toxic torts (when no lawyer in the firm had actually done that) . . . the list of the misrepresentations on Mr. Well’s site could go on. The principle however is already clear: the site reported information that was not accurate. The site was on for three or four months only, until Mr. Wells received the ethics complaint. But it was enough for the Supreme Court to uphold the sanction for misleading advertisements. The lawyer acknowledged his wrongdoing and expressed remorse and willingness to take remedial actions. He did not have any previous disciplinary sanction. That is the reason why the Court was generous in the sanction.
The decision of the Supreme Court is correct; it would be pointless for us to comment on that. Instead of commenting on the decision, we would like to remind – just as a short hand website checklist – some basic points coming from the rules: (i) Mr. Wells’ defense was that he relied on a local public relation firm to create the advertisement. Public relation firms are a useful tool but lawyers should be careful. What is good to optimize the Google search (so called “SEO terms“) does not necessarily comply with the ethic rules; (ii) as Mr. Anthony Davis, Esq., has recently pointed out in a speech held on June 7, 2011, for the New York State Bar Association: if you put something in the Internet, it is universally accessible and forever. It does not matter how long the advertisement is effectively in the Internet, it can haunt you also once you think you have removed it; (iii) if you are a lawyer, you have a special standard to respect. Your Constitutional right of Free Speech is not absolute. You have to exercise it in the respect of the rules of Professional Conduct. In particular, lawyers should remember that website content is a communication to the public and that all communications about a lawyer’s services, regardless of form, must not be false or misleading. They should remember that Rule 7.1 prohibits “deceptive” and “unfair” communications. They should have a look at Comment 2 to Rule 7.2 that provides a nonexclusive list of acceptable advertising content, including name or firm name, address and telephone number, as well as areas of practice. And they should be mindful to comply with Rule 7.4, which sharply limits a lawyer’s ability to assert expertise or specialization in an area of practice. Moreover, even if we can doubt the constitutionality of the rule, lawyer should remember that Rule 7.2(f) prohibits lawyers from making statements in advertisements that are “merely self-laudatory or which describe or characterize the quality of the lawyer’s services.”
The full text of is available at http://www.judicial.state.sc.us…