Panel offers guidance to bring lawyers’ Web sites into compliance
Panel offers guidance to bring lawyers’ Web sites into compliance
Mark D. Killian
The Bar’s Standing Committee on Advertising on December 29 approved guidelines to help lawyers meet the Supreme Court’s new rules regulating the content of lawyers’ Web sites.
Chair Adam Schwartz said the guidelines allow lawyers to use disclaimers to designate parts of their Web sites as “information upon request” zones, which would mean that those sections would not be subject to the lawyer advertising rules.
Schwartz said the guidelines were carefully drafted to balance lawyers’ First Amendment rights to advertise their services with the committee’s duty to protect the public.
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.
The court’s ruling 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.
In December, the Board of Governors voted for a six-month enforcement moratorium on new advertising regulations affecting lawyer Web sites, since the timing of the ruling makes it extremely difficult for lawyers to get their Web sites in compliance by the January 1 implementation date.
In reaction to the court’s ruling, the board decided that the Bar will not review attorney Web sites, even if they are voluntarily submitted by lawyers seeking to comply with the rules, since the Web sites can run to hundreds of pages if printed out and can be changed several times a day. The Bar’s ethics and advertising staff will, however, provide guidance to lawyers asking specific compliance questions.
Schwartz said the guidelines 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, 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.
The page would also state 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 information would be considered “upon request” only if the lawyer sets up the Web site 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.
The guidelines read:
“Lawyer and law firm websites must comply with the general lawyer advertising requirements set forth in Rule 4-7.2, Rules Regulating The Florida Bar. Although websites must comply with these requirements, they are not required to be filed with The Florida Bar for review. Rule 4-7.8(f), Rules Regulating The Florida Bar. The Florida Bar Board of Governors has adopted a policy that The Florida Bar will not accept voluntary filings of the entire contents of a lawyer or law firm website, although staff of the Ethics and Advertising Department will respond to specific questions involving a specific phrase or image to be included on a website. To make such an inquiry, please call the Ethics and Advertising Department at (800) 235-8619.
“Many law firm websites may contain information that is prohibited by the lawyer advertising rules, such as testimonials or endorsements from clients and others, past results of the law firm, and statements characterizing the quality of legal services (for example, the firm offers high quality legal services, or excellent legal services).
“The Standing Committee on Advertising has determined that a lawyer or law firm can create a portion of the website which contains information that can be provided only at the request of a prospective client, and is, therefore, not subject to the lawyer advertising rules under Rule 4-7.1(f). Testimonials and endorsements, past results, and statements characterizing the quality of legal services may be included in such a section if the information provided is truthful and not misleading, either by itself or in the context in which it is given. If testimonials or past results are provided, sufficient information about the matter also must be provided to allow the consumer to evaluate the testimonials or results. Testimonials and past results may be included only with the informed consent of the client to which the matter relates (see Rule 4-1.6(a), Rules Regulating The Florida Bar). In order to be considered information that is given at the request of a prospective client, the information must be accessible only after viewing a disclaimer page and making an affirmative acceptance that the viewer has received the disclaimers provided below.
“The disclaimer page must clearly and prominently indicate the following:
• the type of information that will be viewed;
• that the information is not reviewed or approved by The Florida Bar.
“If past results are provided, the disclaimer page must indicate:
• that a prospective client’s facts and circumstances may differ from the matter in which results have been given;
• whether all results are provided;
• that the results are not necessarily representative of results obtained by the lawyer; and
• that every case is different, and each client’s case must be evaluated and handled on its own merits.
“If testimonials are provided, the discliamer page must indicate:
• that a prospective client’s individual facts and circumstances may differ from the matter(s) in which the testimonials are provided;
• whether testimonials of all clients are provided; and
• that the testimonials are not necessarily representative of all clients’ experience with the lawyer.
“On the disclaimer page, the viewer must acknowledge receipt of the information before being given access to pages with information including past results, testimonials, or statements characterizing the quality of legal services. The lawyer should not require that viewers provide information about themselves in order to access the information.
“Lawyers may use a disclaimer page, a pop-up, or any other technological mechanism as long as the above guidelines are followed, and the above information cannot be accessed without viewing the disclaimer page and making an affirmative acknowledgement of receipt of the disclaimer. For example, the website must be set up in such a way that the above information cannot be viewed as a result of a general search engine or site search without displaying the disclaimer page each time.
“Alternatively, lawyers may provide a section of the website in which a viewer, at the viewer’s option, may provide contact information and make a specific acknowledgement that the viewer would like to receive specific information about the lawyer or law firm. After receipt of the contact information and acknowledgment, the lawyer or law firm may send the viewer information by either e-mail or regular U.S. Mail, as long as the information is truthful and not misleading, either by itself or in the context in which it is given. The lawyer or law firm must provide the same disclaimers to the recipient and follow the same guidelines noted above.”
Sample Disclaimer Page
If you are interested in viewing information about the lawyer/firm’s past results and testimonials about the lawyer/firm, please read and acknowledge the information below. The information in this section contains information about the lawyer/firm’s past results, testimonials about the lawyer/firm, and statements regarding the lawyer/firm’s quality [ Note to Lawyers: you must also list the category of any other information provided that is not otherwise in compliance with Rule 4-7.2 here]. The information has not been reviewed or approved by The Florida Bar.
You should know that:
The facts and circumstances of your case may differ from the matters in which results and testimonials have been provided.
All results of cases handled by the lawyer/firm are not provided and not all clients have given testimonials.
The results and testimonials provided are not necessarily representative of results obtained by the lawyer/firm or of the experience of all clients or others with the lawyer/firm. Every case is different, and each client’s case must be evaluated and handled on its own merits.
I acknowledge that I have read and understand the above information and would like to view the information. [Hypertext link to the additional information.]
I do not want to view the information. [Hypertext link to home page of website.]
[Note to Lawyers: the viewer must check each box in order to reach the additional information on the website.]