NY Daily Record Since 1908
John E. Bernacki
A few months ago, a colleague who reads this column asked me if there were any ethical issues presented when a law firm’s website includes links to outside websites. At the time, I was unaware of any ethics decisions on point, but in November, I was pleasantly surprised to discover that the New York State Bar Association Committee on Professional Ethics addressed that very issue in Opinion 888.
The specific task faced by the committee was to determine whether it was ethical for a law firm’s website to link to websites of other businesses. The inquiring attorney was interested in learning whether his firm’s website could link to real estate companies and banks, but the committee did not limit its inquiry to that factual scenario.
The short answer is that reciprocal links are permissible, under certain circumstances. Thus, the committee concluded that: “A law firm website can include informational links to other websites, including those of banks and real estate companies. Neither the linked material nor the linkage itself may involve misrepresentation or create confusion. Reciprocal links are not inherently unethical. A simple reciprocal link (without revenue generated for the law firm and without any financial relationship between the entities) is permitted under similar conditions as an informational link.”
In reaching its decision, the committee first explained that ascertaining whether an outside link is ethically permissible requires an examination of “the purpose of the link, the nature of the site to which a link is made, and the nature of the relationship between the attorney and the owner of the website to which the link is made.” Importantly, the committee noted that the consent of the owner of the website linked to is not required and that the owner need not even be notified that the link exists.
The committee stressed that the most important ethical consideration when linking to an outside website is to avoid creating any confusion or misrepresentation. So, as long as the link and the material to which it leads does confuse or mislead the viewer, then a disclaimer is not required.
By way of example, the committee cited a link to a governmental website and explained that as long as the link did not create the impression that the law firm was somehow affiliated with the governmental agency, then a disclaimer would be unnecessary.
The committee also considered situations where a firm might benefit financially as a result of a link to an outside website. According to the committee, non-revenue generating reciprocal links between a law firm and another business are permissible. However, where reciprocal links are part of an arrangement that might generate income or otherwise financially benefit the firm, greater care must be taken to avoid misrepresentation or confusion.
Thus, lawyers should tread more carefully in cases where the reciprocal link generates revenue for the firm or if there is a financial relationship between the law firm and the company to which the firm’s website links.
Similarly, where a link serves as advertising, it must comply with the requirements of Rule 7.1 in order to avoid deception or confusion and disclaimers must appear on the home pages of the websites that include reciprocal links to the law firm.
Finally, if the link involves part of a “cooperative business arrangement” between a lawyer and non-legal professional then Rule 5.8(a) is triggered and must be complied with, including the ban that forbids the sharing of legal fees with non-lawyers.
Thus, as tends to be the case with most ethics issues, when it comes to the ethics of linking to outside websites, the answer is rarely simple. However, in this case, common sense supports the committee’s conclusion that links to outside sources are generally permissible, as long as doing so doesn’t create confusion or otherwise mislead the legal consumer.
The Hon. John E. Bernacki is a Pittsford Town Court Justice. His law firm, John E. Bernacki Jr. PC, is located in Pittsford. He can be reached at www.johnbernackilaw.com.
