NY Daily Record Since 1908
John E. Bernacki
It used to be, back in the days when yellow pages reigned supreme, that law firm websites were a novelty. That was before 24/7 connectedness became the norm and smart phones, tablets and Wi-Fi became ubiquitous.
Nowadays, in the always-connected 21st century, the majority of law firms have a website. In fact, websites are rapidly becoming old news, as an increasing number of lawyers move toward interacting on social media sites.
Even so, questions sometimes still arise as to what types of information lawyers may permissibly include on their firm’s website. In fact, the New York State Bar Association’s Committee on Professional Ethics considered this very issue just a two months ago in Opinion 877 (9/12/11).
In that case, the inquiring attorney requested the committee’s opinion on two separate issues. First, in his firm’s website biography, could he ethically list his partnership positions previously held with other law firms? The second inquiry was whether it was permissible for him to include on his website favorable comments regarding his work taken from a publication that rates lawyers and law firms.
In regard to the first question, the committee explained that Rule 7.1(b)(1), which addresses the types of information that attorneys may include in advertisements, did not specifically address the issue of whether past experience is a proper subject for inclusion in attorney advertising. However, the committee noted that the rule expressly allows attorneys to include information as to “public offices and teaching positions held” and that Rule 7.5(a)(2) permits lawyers to include biographical data on professional announcement cards.
The committee then likened the “past experience” that the attorney sought to include on his firm’s website to the biographical data permitted for inclusion on announcement cards and held that that a “lawyer may accurately list, in his website biography, his former partnership positions in other firms.”
The committee then turned to the second question: whether favorable comments from a lawyer rating publication could be included on a firm’s website. The committee focused its attention on Rule 7.1(b)(1), which permits an ethically compliant attorney advertisement to include bona fide professional ratings. The committee explained that the rating was bona fide as long as it was nondeceptive and “unbiased, nondiscriminatory and based on some defensible method.”
The committee then concluded that as long as the rating met those requirements, it could be included on the firm’s website, subject to the client’s informed consent, if needed: “His website may also accurately quote bona fide professional ratings, or comments from any ratings publication, if the comments were capable of factual support when published, the required disclaimer about prior results is included, and the lawyer obtains and confirms in writing the client’s informed consent to any testimonial or endorsement with respect to a matter still pending.”
In both cases, the committee analogized online content to the offline equivalent, since an attorney advertisement is just that — advertising — regardless of where it appears. It’s simply common sense: the rules that apply to print advertising apply equally to Web-based advertising. In other words, if the proposed content is permissible offline, then it’s likely permissible online. Just because the medium changes, doesn’t mean the rules do.
The Hon. John E. Bernacki is a Pittsford Town Court Justice. His law firm, John E. Bernacki Jr. PC, is located in Pittsford, N.Y. He can be reached at www.johnbernackilaw.com.
