Whose Rules to Follow?

The ubiquity of the internet means lawyer websites may be subject to numerous rules – including those in other states.

By AMY DEVAN

SUMMER 2014

In the current economy, attorneys are hoping to maximize their advertising dollars while seeking broad exposure to potential clients. One sure-fire way to achieve this is through the use of websites, which often have little-to-no cost to maintain and can result in big returns. But lawyers must be mindful of the Colorado Rules of Professional Conduct when using websites, especially for advertising purposes.

In 2010 the American Bar Association issued Formal Opinion 10-457 regarding lawyer websites. Among the key points:

·        Website information must comply with ABA Model Rule 7.1 regarding communications about a lawyer’s services and cannot contain false or misleading statements covered in 8.4(c) or 4.1 (which are similar to Colorado’s Rules).

·        Information should be updated regularly to ensure that it remains accurate and is not false or misleading. This means a lawyer who lists precedent decisions or controlling case law relevant to the practice area should regularly monitor and update that information as new developments occur.

·        Lawyers must use care to not form an attorney client relationship via “web inquiries” submitted via their websites. Cautionary statements are strongly encouraged (like “Submission of an inquiry does not result in the formation of an attorney-client relationship”); however they must be carefully worded and adhered to by the lawyer. Under Rule 1.18, a lawyer’s response to the inquiry may form an attorney-client relationship, in spite of the disclaimer.

Lawyers also need to be aware that website content may implicate the advertising rules —CRCP 7.1, 7.2, 7.4 and 7.5. The nature of the internet means websites can potentially be viewed by people anywhere. The lawyer can ensure compliance by clearly indicating the state in which he or she is licensed and/or practices and by reviewing and following the rules.

There may be some concern in a situation where, for example, the lawyer is licensed and practicing in Colorado but drawing a significant client base from Wyoming. Again, due to the fluid nature of the internet and its constant accessibility from anywhere, lawyers are hard pressed to comply with every rule in every jurisdiction. In this instance a common sense approach is helpful. If the lawyer is licensed in two states, he or she would be prudent to be aware of and compliant with the rules in both states. This prudence may result in limiting website content to a degree not required in one state to accommodate the requirements in the other. If a lawyer primarily practices in a state where he or she is not licensed (through federal-only or multijurisdictional practice rules) compliance with the rules of both the licensing state and the practice state is probably the best idea.

Due to the dynamic nature and wide reach of the internet, lawyers may experience some confusion when deciding on the content of their website. However, awareness of the rules, with reference to the ABA Model Rules, and a common sense approach will likely resolve any questions that arise. No matter where he or she is licensed, a lawyer may never be dishonest when posting information on the website.

Amy DeVan is Assistant Regulation Counsel in the office’s intake division.