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Some Comments on Certain Aspects of the ABA Commission on Advertising White Paper

Subject: In Search of an Ethical Compass for Advertising in an Online World

Date: October 9, 1998

From: LaVern Pritchard

To: William Hornsby (American Bar Association)

I received the current issue of Law Practice Management yesterday and read your article last night.

Just a few questions and comments on what I thought was a very good article, from the perspective of a practicing attorney/practicing web architect/developer:

You make the point that large law firms are particularly using the web to market their practices. While the percentage of large firms with web sites towers above the percentage of smaller firms and solo practitioners who have web sites, on an absolute basis, smaller and solo firms vastly outweigh larger firms in cyberspace. There just aren't that many large law firms. If all 500 of the largest 500 law firms had web sites, that would still be less than 10% of the total number of law firm web sites. Some solos have shown they can out-build and out-market larger firms in this new arena. For some recent statistics, including comprehensive Minnesota statistics, see http://www.priweb.com/mnlawtechtitles.cfm (the table of contents page for a presentation I made recently at the Minnesota Law & Technology Show on why law firms should be on the Internet not as consumers but as publishers and full participants in the web community).

One issue that I think tends to get understated is that law firms are not just "advertising". Some portions of a typical web site are advertising. Other portions, say the republication of print articles, do not transmute themselves into "advertising" merely by being published in another medium. The advertising rule, at least in Minnesota, pertains to advertising the lawyer's "services." A lawyer's views, for example, are constitutionally protected speech. The Web started out as a publishing medium. Some of us are still scholars in addition to hawkers of services, and the Web is the best way ever for people to reach out to other people of common interests. Some lawyers' sites have not been very successful because they are too pedantic. They read as though they are for other lawyers rather than for clients. In truth, some of them are. Is every communication with another lawyer advertising? I think putting content on a web site is no different than putting it into a listserver. People want and need to communicate for all sorts of reasons. Some of it is advertising but it surely is not automatically all advertising, in my view.

A public service announcement, for example, does not advertise services. Links to other sites are not advertising of a lawyer's services in any traditional sense of the word. (Your example of an intentionally fostered promotional message on a client site may, though, represent an egregious case where the lawyer causes the content to appear elsewhere with an intent to evade his/her own obligations.)

My point is that applying a single label to an entire web site may tend to chill lawyers' creativity unnecessarily. Instead, the content should be screened, on a granular level, for whether it falls within the regulated scope of lawyer advertising.

Sites are just aggregations of all sorts of content, like public libraries are. A legal web site is a sponsored public library of all sorts of information and communications, some of which clearly are advertising.

One sentence I did find surprising was this one:

"However, many prospective meta tags create gray areas; use of the words "law," "legal" or "litigation," for example."

What's gray about those words? They are proper, indeed essential in the case of "law" and "legal", indexing words to assist search engines to do their jobs. If writing a meta tag containing the word "law" is potentially misleading or inappropriate, it is no less misleading or inappropriate to use those words in the visible text of the page. Am I missing something of what you meant? As for litigation, the only way it could be inappropriate is if the firm does not conduct litigation. These are basic descriptive words that accurately focus on the nature of the site. The occasional metatag case has been an unfair competition case.

My view is that lawyers are badly needed in cyberspace, and if the profession, relatively speaking, sits on the sidelines or does not aggressively take advantage of the medium and the technology, we are going to be diminished in myriad ways.

After writing the above, based on your article, I reviewed the White Paper of the ABA Commission on Advertising and found it addresses many of these above points quite effectively, where additional space was available to discuss and consider these issues at greater length.

I do have just a couple of caveats, though, to my general admiration for that generally outstanding analysis.

The first is based on the following sentence from the white paper:

"An ambitious web site, however, may deceive the potential client into a belief the firm has greater resources and a broader capacity for services than it actually does."

I find no tangible evidence to support such a notion, which may insult the intelligence of the average web user as well as denigrate the sometimes astounding efforts of individual attorney web site builders. Mass is no longer a prerequisite to effectiveness. Someone who has built a content-rich site has reinforced professional knowledge to a level most attorneys never achieve. And what's the solution? Limit solos and small firms to small, ineffectual sites? Require a disclaimer? It would look pretty foolish: --WARNING: We may look and sound good on this site, but we do not actually have hordes of lawyers under one roof.--

Virtually every site identifies the number of attorneys in a law firm and their professional backgrounds. Whether a particular attorney or firm can handle a particular matter is not dependent on the ambitiousness of their web site.

This illogical sentence, I would hope, will be repudiated as the process proceeds.

Perhaps if a web site were surreptitiously ghost written one might identify some issues? (But then, what about large firms' marketing literature -- which may tend to make the firms look more "attractive" to potential clients and recruits than they "really are" as a result of being artificially polished by highly paid marketing folks and spinmeisters!!!)

The second is again based only on a single sentence.

That portion of the report suggesting of change in the structure and presentation of ethics includes this sentence:

"Firms using the Internet to communicate with corporate- centered potential clients could refer to themselves as national firms providing full corporate services without fear of being in violation of overly broad provisions which are not aimed at the sophisticated institutional client."

Sophistication is not an either/or thing. Case law providing a separate set of rules for "sophisticated" parties is often unsatisfying intellectually. It fosters a simplistic yes/no scheme of classification for a continuum of reality.

And what test do you apply to standards of truth and deception? If puffery is acceptable, then it is acceptable. If it's not, it's not. There is no reason to carve out a two-tier standard of ethics based on the dubious principle that corporate counsel will just ignore attempted deceptions and exaggerations and all others are, by their very nature, unable to ascertain the truth.

The exposure of vast amounts of information about law firms and lawyers via the public Internet is one positive way in which all those with an Internet connection can examine information in context to reach judgments as a whole. Web sites do say a lot about those who publish them. Large and small firms should play by the same rules under the same circumstances.

Particularly when juxtaposed against the "fear" that solo practitioners and small firms could mislead people by their genuine demonstration of prowess, via their web sites, this idea of freedom to puff but only to people who won't believe you anyway does not strike me as an advancement in our concepts of legal ethics. There are not, for example, Ten Commandments for most people but only Eight Commandments if you represent the Fortune 500.

Your article asserts that large firms often violate their ethical responsibilities now by overselling their abilities and expertise on their web sites. Large law firms are now, and will continue to be, in the best position to regulate their own communications and conform to profession-wide standards.

I do want to reinforce the point I made initially -- that I much appreciated your article, find it very helpful, and I know many others will likewise do so as well.

LaVern A. Pritchard
Pritchard Law Webs

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