The Florida Bar News - January 1, 2010

Bar seeks moratorium on Web site rules enforcement
Guidelines for social networking sites are also forthcoming
The Board of Governors has voted for a six-month enforcement moratorium — if the Supreme Court has no objection — on new advertising regulations affecting lawyer Web sites.

At the same time, the board has given guidance to Bar staff answering inquiries about the Web sites, and the Standing Committee on Advertising has approved guidelines to help lawyers meet the new rules. The advertising panel also voted that lawyers’ use of online social networking sites is subject to the same rules as lawyer Web sites.

The board acted at its December 11 meeting in Amelia Island, and the Standing Committee on Advertising approved its guidelines at a December 8 meeting.

The activity follows a ruling by the Supreme Court in November that all Bar advertising rules, except the requirement they be submitted to the Bar for review, apply to lawyer Web sites.

That means several common attributes of attorney Web sites — including testimonials, statements that characterize the quality of work, or information about past results — are not allowed under the revised Web site rule. The practical effect is most lawyer Web sites are out of compliance with the new rules, effective as of January 1.

Bar Ethics and Advertising Counsel Elizabeth Tarbert updated the Board of Governors on how the Bar was reacting to the court’s ruling.

One step was a recommendation from the Board Review Committee on Professional Ethics that the Bar not review attorney Web sites, even if they are voluntarily submitted by lawyers seeking to comply with the rule.

Tarbert said Web sites can run to hundreds of pages if printed out and can be changed several times a day. The Bar doesn’t have the staff to handle that review workload, she said. But the BRCPE did recommend that Bar advertising staff can respond to specific questions from lawyers and law firms about the Web site rules.

The board approved that recommendation unanimously

Next, Tarbert requested an enforcement moratorium to give the Standing Committee on Advertising time to adopt its guidelines and for lawyers to comply with the revised rule.

“It would be extremely difficult for them to get their Web sites in compliance by January 1,” Tarbert said. “What we have done in the past is ask the board to institute a moratorium for a specific period of time.”

Bar President Jesse Diner said the Supreme Court would be informed of the moratorium to ensure justices have no objection.

Finally, Tarbert told the board that the Standing Committee on Advertising is working on adopting guidelines to help lawyers bring their Web sites into compliance with the rule. She added that the guidelines are intended to provide general advice and not dictate one specific way to comply with the new rules, and could be posted on the Bar’s Web site by January 1.

At its December 8 meeting, the committee voted 4-0 to allow lawyers to use disclaimers to designate parts of their Web site as “information upon request” zones, which would mean that those sections would not be subject to the lawyer advertising rules.

But first, committee Chair Adam Schwartz said, the Web site visitor would have to view a disclaimer page that clearly indicates what information will be viewed. That page could include whether all results or client testimonials are provided, that the results or testimonials are not necessarily representative of results obtained by the lawyer or all clients’ experience with the lawyer, and that a prospective client’s individual facts and circumstances may differ from the matter(s) in which the results or testimonial are provided. It would also provide that the information behind the disclaimer is not regulated by Bar advertising rules, although it would be covered by other rules that prohibit the information from being false or misleading.

The final version, when approved by the committee, will be posted on the Bar’s Web site.

The committee also said on the disclaimer page, the viewer would have to accept or acknowledge receipt of the information before being given access to pages that follow.

The committee acted at the request of Ft. Lauderdale lawyer Peter T. Boyd, who owns PaperStreet Web Design, a company that designs Web sites for other lawyers. Boyd asked the committee whether parts of lawyers’ Web sites could be made “information upon request” through the use of a disclaimer page.

The committee said lawyers could set up the section of their Web sites dealing with information on request as a disclaimer page, a pop-up, or any other technological mechanism. Which option would be up to each individual law firms as long as the guidelines were followed and no information could be found without viewing the disclaimer page and making an affirmative acknowledgement of receipt of the information.

Schwartz said the information would be considered “upon request” only if the lawyer sets the Web site up to block the area containing past results and testimonials from viewers who have not submitted acknowledgement of viewing the disclaimer page, and the testimonials and/or past results would only be shown upon submission of the agreement after viewing the disclaimer page.

Social Networking
In other action, the committee voted 4-0 to treat social networking sites such as Facebook, LinkedIn, YouTube, and Twitter similarly to restrictions the Supreme Court recently put on lawyers’ Web sites. That means they would be subject to Rule 4-7.2 but not required to be filed for review.

The sites must comply with all Bar advertising regulations, including that lawyers may not make statements that characterize the quality of legal services being offered; provide information regarding past results; or include testimonials.

The committee directed Bar staff to draft guidelines to that effect and post those guidelines on the Bar’s Web site before January 1, the date the court’s new rules on computer assisted communications goes into effect.

Schwartz said the guidelines should indicate that lawyers would not be responsible for other party’s postings that appear on the lawyer’s page unless the lawyer prompts the posting or uses the other party to circumvent the lawyer advertising rules.

The committee also directed that invitations to a third party to view or link to the lawyer’s social networking page on an unsolicited basis would be considered in-person solicitation in violation of Rule 4-7.4(a), unless the third party is the lawyer’s current client, former client, relative, or another lawyer.

The committee also directed staff to draft guidelines to the effect that the content of YouTube postings must comply with Rule 4-7.2, except the requirement they be submitted to the Bar for review.

Senior Editor Gary Blankenship and Managing Editor Mark Killian contributed to this report.