Committee on
Professional Ethics
Opinion 908
(2/28/2012)
Topic: Advertising in internet
directory
Digest: (a) It is permissible
for an attorney to be listed on a local bar association website
directory, if the attorney is a member of the association, and the
information about the attorney contained in the listing complies with
the requirements of Rule 7.1.
(b)
It is permissible for an attorney to appear as a “featured
attorney” on the home page of the website of a local bar
association of which the attorney is a member, only if there is an
appropriate disclaimer on the home page that the featured attorney is
selected at random and is neither being endorsed nor recommended by the
association over any other attorney.
Rules: 1.0(a); 7.1;
7.2; 7.3
FACTS
1. A local bar association proposes to
provide on its internet website a directory listing of its dues paying
members, listing each attorney’s name, address, phone number,
e-mail, website link (if any), years of practice, areas of practice,
picture and Google maps link. This listing will be accessible
by members of the public. Before accessing these
“profiles” a person will be required to accept a posted
disclaimer noting that legal advice is not being given, that the list of
attorneys may not be a complete list of all attorneys in the area, that
the listing is not an endorsement of the searched attorney over another,
that the listing is part of the membership fee of each attorney listed
in alphabetical order, and does not mean that the attorney listed has
had any special training.
2. The local bar association also proposes
to provide a “Featured Attorney” spotlight, noting the
picture of the attorney, years of practice, fields of practice with a
link to the attorney’s profile in the directory referred to
above. The spotlight attorney will be selected at random and
change each week so that over an extended period, each attorney member
of the association will be featured in the spotlight. There will be an
asterisk after the Featured Attorney referring to a disclaimer noting
that legal advice is not being given, and that the association does not
endorse the Featured Attorney over another. Each visitor to the
website, before being able to access the directory of information on the
Featured Attorney, will have to acknowledge understanding of the
disclaimer by clicking on a Notice and OK acceptance box that will pop
up before the visitor can proceed further.
QUESTION
3. (a) May an attorney member of the local
bar association grant permission to be listed in the profiles portion of
the association’s website?
4. (b) May an attorney member of the local
bar association grant permission to be featured in the “Featured
Attorney” spotlight portion of that association’s
website?
OPINION
5. Rule 1.0(a) defines
“advertisement” as “any public or private
communication made by or on behalf of a lawyer or law firm about the
lawyer or law firm’s services, the primary purpose of which is for
the retention of the lawyer or law firm. It does not include
communications to existing clients or other lawyers.”
6. The listing by a lawyer in a directory
or listing available to the public indicates that it is a communication
the primary purpose of which is the retention of the lawyer by members
of the public. We therefore view the listing as an
“advertisement” since it is a public communication made by
or on behalf of a lawyer the primary purpose of which is the retention
of the lawyer.
7. While the Rules do not specifically
authorize advertising in a directory, Rule 7.1(f) does exclude
advertising in a directory from the requirement that it be labeled
“Attorney Advertising”. We conclude,
therefore, that advertising in a directory (here a bar association list
of attorneys) is permissible advertising as long as it complies with the
relevant provisions of Rule 7.1. The profile listing on the
website directory therefore is advertising that must otherwise comply
with the requirements of Rule 7.1 but need not be labeled
“Attorney Advertising”.
8. Because the advertising is not directed
to, or targeted at, a specific recipient or group of recipients, it is
not a solicitation under Rule 7.3, and because the local bar association
does not direct any specific member of the public to a specific attorney
the listing of dues paying members is not a referral for payment subject
to the provisions of Rule 7.2.
9. The featured attorney spotlight is
different from the profile listing of all members. Since it
does not appear in a directory, it has to be labeled “Attorney
Advertising” as provided by Rule 7.1(f) in addition to complying
with the other applicable requirements of Rule
7.1. The disclaimer with respect to non-endorsement of the
Featured attorney should also state that the association is not
recommending the Featured Attorney over any other attorney and that the
selection by lot is a means of merely permitting each member to be
displayed on the website home page. The appropriate disclaimer by the
association on the page with the featured attorney spotlight, stating
that the association was not endorsing or recommending the featured
attorney over any other attorney and that the featured attorney is drawn
by lot and changes every week as a means of merely permitting each
member to be displayed on the association’s website homepage,
would remove Rule 7.2 considerations.
CONCLUSION
10. (a) It is permissible for an attorney to
be listed on a local bar association website directory if the attorney
is a member of the association and the information about the attorney
contained in the listing complies with the requirements of Rule
7.1.
(b) It is permissible for a member attorney to
appear as a “featured attorney” on the home page of the
website of the local bar association only if there is an appropriate
disclaimer on the home page stating that the featured attorney is
neither being endorsed nor recommended by the association over any other
attorney and that the featured attorney is drawn by lot and changes
every week so that every member of the association has a chance to
appear as a featured attorney.
(41-11)
Related Files
Ethics Opinion 908 (Adobe PDF File)
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