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Committee on Professional Ethics
Opinion 915 (3/27/12)
Topic: Links to and from a
Law Firm’s Website
Digest: Assuming relevant advertising
rules are adhered to, a law firm’s website may link to the website
of a nonlegal entity, and vice versa.
Rules: 1.0(a), 1.0 (c),
7.1
FACTS
1. The inquirer is a member of a law firm
that has formed a separate consulting entity that performs nonlegal
services. He inquires whether the websites of the law firm and the
separate consulting entity can link to each other.
QUESTIONS
2. May a law firm’s website contain
links to a website of a nonlegal consulting entity formed by the law
firm? May the nonlegal consulting entity’s website contain links
to the law firm’s website?
OPINION
3. As a general matter, it is ethically
permissible for a lawyer to link the lawyer's website to a third party's
website, and vice versa. It should be noted, however, that
the New York Rules of Professional Conduct broadly define
"advertisement" to include “any public or private communication
made by or on behalf of a lawyer or law firm about that lawyer or law
firm’s services, the primary purpose of which is for the retention
of the lawyer or law firm.” See Rule 1.0(a). Furthermore, a
subcategory of "communications," called a "computer-accessed
communication," specifically includes weblinks. See Rule 1.0(c).
Therefore, if the primary purpose of a particular link is to facilitate
the retention of the services of a lawyer or law firm, the link and the
related text are “advertisements” under the
Rules.
4. An attorney is prohibited from
participating in the use or dissemination of any advertisement that
(1) contains statements or claims that are false, deceptive, or
misleading, or (2) violates any Rule, including, but not limited to, the
rules on lawyer advertising. See Rule 7.1. The relevant rules
include, for example, a provision requiring that advertisements be
pre-approved by the attorney and retained by the attorney for a
specified period. Rule 7.1(k). In addition, assuming both links are
advertisements, the home pages of the websites of the law firm and the
nonlegal consulting entity must be labeled "Attorney Advertising." Rule
7.1(f); see also Rule 8.4(a) (a lawyer shall not violate the
Rules "through the acts of another").
5. If a link’s primary purpose is not
to facilitate the retention of a lawyer or law firm, it would not be an
“advertisement” under the Rules. See Rule
1.0(a), supra. This could be the case where, for example, the
link on the nonlegal consulting entity’s website is created
primarily to provide biographical information concerning the
entity’s constituents, or to provide access to a document
contained on the law firm’s website.
6. It must be noted, however, that Rule 5.7
contains various rules relating to nonlegal services provided by
lawyers. Rule 5.7(a)(1) and (2) apply if an attorney is providing
both legal and nonlegal services to clients. Under Rule 5.7(a)(1), if
the nonlegal services are “not distinct” from the legal
services provided by the lawyer to the client, then the New York Rules
of Professional Conduct (“Rules”) apply to the provision of
both legal and the nonlegal services. Under Rule 5.7(a)(2),
if the nonlegal services and the legal services provided by the lawyer
to the client are “distinct” from each other, then the Rules
apply to the provision of legal and nonlegal services only “if the
person receiving the services could reasonably believe that the nonlegal
services are the subject of an attorney-client
relationship.” In this case however, because the lawyer owns
or controls the non-legal entity the test is not distinctness. Rule
5.7(a)(3), which applies when “a lawyer or law firm …is
an owner, controlling party or agent of, or … is otherwise
affiliated with, an entity that the lawyer or law firm knows to be
providing nonlegal services to a person,” states that the lawyer
or law firm is subject to the Rules with respect to the nonlegal
services “if the person receiving the services could reasonably
believe that the nonlegal services are the subject of a client-lawyer
relationship.” Since Rule 5.7(a)(4) creates the presumption that a
person receiving nonlegal services “believes the services to be
the subject of a lawyer-client relationship”, here the advertising
rules will apply, as an effective notice to a person receiving the
services as contemplated by Rule 5.7(a)(4) cannot be given in the
advertising context where the person is unknown.
7. If any of the above subdivisions to Rule
5.7 pertain to the provision of services by a nonlegal consulting
entity, the Rules, including those pertaining to advertising, would
apply to the website of the nonlegal consulting entity. See N.Y.
State 832 (2009).
CONCLUSION
8. A
law firm’s website may contain links to a website of a nonlegal
consulting entity formed by the law firm. Furthermore, the nonlegal
consulting entity’s website may contain links to the law
firm’s website. If the particular link and the related text are
“advertisements” under the Rules, the relevant advertising
rules must be adhered to. Furthermore, if the provisions in Rule
5.7(a)(1), (2), or (3) pertain to the provision of nonlegal services,
the Rules, including those pertaining to advertising, would apply to the
website of the nonlegal consulting entity.
(37-11)
Related Files
Ethics Opinion 915 (Adobe PDF File)
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