You’ve probably heard of the infamous and nefarious “webs”—dark, deep, invisible, or hidden—but might not be familiar with the “gray web”—the place where many lawyers and law firms find themselves marketing on the internet.
Now the “gray web” may or may not be something I’ve made up for this article, but trust me, it is very real. As a member of the ABA Law Practice Division’s Ethics & Professionalism Committee, and associate editor of this publication’s Editorial Board, this is a subject often discussed. How can lawyers effectively market themselves on the internet, where murky waters can inhibit efforts to do it right? How can lawyers be successful, yet not break the rules?
Recently, I had the privilege of participating in a Professionalism Day panel at the federal court in Camden, New Jersey. U.S. District Judge Noel Hillman chose the topic of “Civility in the Digital Age,” and asked me to discuss related ethics issues as it pertained to lawyer marketing and advertising on the internet. In opening remarks, U.S. Magistrate Judge Ann Donio noted that a “loss of patience” in our digital world had impacted the conduct of attorneys in the courtroom. Judge Donio referenced same-day deliveries, ride-sharing, movie, and television streaming and the need for good internet speeds as examples of the day-to-day expectations that translate to an attorney’s inability to not look at a cellphone or Apple Watch in her courtroom.
Deputy U.S. Attorney Matthew Skahill relayed examples of improper blogging, social media, and online commenting by prosecutors and other attorneys—noting some improper use of these sites as an investigative tool in litigation, and adding that “the rules don’t contemplate a lot of these issues that arise.”
Judge Hillman discussed a well-publicized case that came before him (and subsequently settled) regarding a lawyer’s use of keyword advertising that became the heart of New Jersey Advisory Committee on Professional Ethics Opinion 735, issued in June 2019. I sense that his experience with that dispute—where one law firm’s purchased Google ad listed one law firm name but actually linked to a competitor instead—was the impetus for the panel topic. That use of Google advertising was, in my opinion, deceptive and misleading. Judge Hillman also reminded the audience of the perils of having vendors in the marketing space handle aggressive advertising without understanding the existence of such things as Rules of Professional Conduct for attorneys. In the end, compliance is on the lawyer, not the marketer.
Of course, I’m often in that gray space myself as an attorney first, and marketer second. Sometimes that is reversed. I suggested to the Professionalism Day attendees that perhaps the loss of some “civility” in the digital age was the result of the increased competition that exists today. The pressure of competing for the next client is probably tougher than ever. Even as I googled an attorney on another panel, I saw that the first search result was a paid ad for a competitor. I’ll add that the competitor had a website and the panelist did not.
Over the years, state bars have struggled with the rapidly changing pace of the web—where siphoning of internet traffic from another law firm is possible through means that may indeed be legal, and even ethical—but just seems wrong. From metatags and coding to other components of search engine optimization, organic search and paid search, use of cookies and social media posts, video, URLs… the methods of effective (if sometimes questionable) marketing go on and on and on. Policing is spotty at best, if (depending on the state) anyone tries at all. So sometimes, you have to get off a high horse and trek the gray web for visibility and clients.
Just one recent example of a “web war” was the lawsuit filed by an Illinois law firm claiming that a rival increased its profits by $2 million over a two-year period by duplicating website content and confusing search engines. That is a singular example of widespread concern.
Another gray space is the world of “accolades,” which I’ve written about numerous times here in LPT and in my marketing column for Law Practice magazine. When you knowingly participate in a rating or ranking award program that clearly is not “bona fide” (as the rules, comments and ethics opinions often reference—a totally subjective definition), or that is “deceptive and misleading,” compares one law firm to another, utilizes improper terminology (such as offshoots of “expert” or “specialist”), are you not violating RPC 8.4—committing professional misconduct? One potential rebuttal is the grade school playground defense of “everybody else is doing it.” And that gray defense is probably sound.
Beside the accolade lists themselves is the use of such “honors” in traditional advertising. Just this week, I used an example of a billboard for a workers’ comp firm and a full-page ad in the Wall Street Journal for a large litigation law firm in a CLE program. Both used ratings as the central message in an old fashioned, non-digital advertisement. I found both to be rather gray, if not a violation of the RPC in a number of states. But I’d suggest the messaging and use have become widely accepted.
At the same time, I recently saw a law firm in an unnamed state receive a “cease and desist” from the local neighborhood ethics sheriff demanding that a particular accolade “badge” be removed from the firm website, along with changing (or correcting) the description of another in regard to methodology and use of terminology. I’ll just say that I wholly disagreed with the sheriff on the first change, but the law firm simply chose to comply rather than risk the wrath of the bar and possible bad publicity from fighting back. I will add that unless that state “sheriff’s department” sent out similar letters to hundreds, if not thousands of law firms, then I’d question the fairness of the request. In this case, the gray may be in the oversight itself.
It would take a full-blown law review article to hit all the possible topics where the gray web comes into play, but I’ll end with one deserving of its own feature in the future—the ethical complications behind online lawyer reviews. Does your law firm have an “online review management platform?” Forget Google analytics or Client Relationship Management software, this new technology line item for many law firms is all the rage. The use and power of online reviews is that they are both a way to sell your legal services and to boost search engine visibility. Google Reviews might be the first thing a prospective client sees, or if they are not good—the last.
In an effort to maximize the value and impact of online reviews, some law firms have taken to somewhat “gray” means to ensure that the negative review is jettisoned into outer space while the glowing five-star is the only thing you see. While I’ve seen minimal litigation over the years in regard to traditional lawyer marketing and advertising, the online review lawsuits are piling up quickly. In Pittsburgh, Pennsylvania alone, a consumer sued a firm suggesting fraudulent online reviews (they settled), and another Steel City attorney sued a former client for libel, claiming that the ex-client’s review was destroying a previously lucrative online presence.
Plenty of others across the country are alleging use of the online review by disgruntled former employees, unhappy clients, mean-spirited competitors and other shady commenters that can have a huge impact on your digital footprint. Not to mention your wallet. Many attorneys have been disciplined for improperly responding to some of these reviews by breaking RPC 1.6 (in revealing confidential client information), and a myriad of other rules and regulations that govern us. The power of the online review can’t be ignored, and in most cases, you can’t choose to “opt-out” either. So you are sometimes left to the devices of the gray web.
When advising law firms and companies that provide marketing to law firms—sometimes as a marketer, and other times as a lawyer—I’m often wary of being too rigid, and taking a letter-of-the-law approach in reading a rule and making recommendations regarding compliance in the world of digital (and old-time) marketing ethics. Because the web is not black and white, it is gray—when a law firm uses it to develop business, and when the regulators try to maintain order.
About the Author
Micah Buchdahl is an attorney who works with law firms on marketing and business development and is a past chair of the ABA Law Practice Division. Micah is the Associate Editor of Law Practice Today’s Board of Editors. He can be reached at micah@htmlawyers.com or 856.234.4334, and on Twitter at @mbuchdahl.