In a digital world, legal ethics are no longer the center of the universe.
Today, lawyers who advertise or engage in business online are subject to four distinct pillars of governance.
First, there’s the law of the online world. That includes the Federal Trade Commission Act enforced by the FTC to prevent deceptive trade practices and protect consumer privacy , the myriad of federal and state privacy statutes governing protection of personal information and data breaches and the CANSPAM Act relating to electronic contacts with potential customers. Complying with ethics requirements won’t insulate lawyers from these statutes.
After real law comes legal ethics codes. Though the ABA and state ethics code differ in the details broadly, they both protect against deceptive advertising and breach of client confidentiality.
Third, each website’s terms of service impose their own unique rules that apply to advertising, contests and other communication on the platform. Violations can get you banned.
Finally, the fourth pillar of governance is netiquette- in other words, public opinion. Even though a certain type of conduct may be perfectly permissible under the other three pillars, it may be so annoying that you’re publicly shamed on a list serve or social media platform.
As you might expect, the four pillars of governance don’t always play nicely. And not surprisingly, the legal ethics pillar is often the outlier. To demonstrate, let’s consider two common questions that many lawyers have about online advertising practices.
First question: Can I give a client discount or a gift card in exchange for incentivizing reviews?
The answer: It depends.
The FTC Guidelines provide that failure to disclose payment or gifts in exchange for reviews is problematic, though the guidance suggests that the FTC wouldn’t be likely to go small businesses that reward customers with gifts or discounts. That said, the FTC did file a complaint against a trucking company that employed a discount as incentive for online reviews without full disclosure.
The state bar rules differ. Although I’ve encountered lawyers who use this practice and insist that their rules permit it, the only ethics decision that I found allowing lawyers to offer incentives for reviews is NYSBA Op. 1052.
Some site terms of service offer guidance on whether reviews may be incentivized. Yelp clearly forbids incentivized reviews, while Google’s guidelines were unclear to me. Before offering rewards to clients for reviews, consult a site’s terms of service platform.
As for netiquette, lawyers should always err on the side of transparency. Consumers may not care one way or another if a review was paid for but regardless, it’s information that consumers would want to know.
For other examples of how these four pillars interact in practice, take a look at my recent presentation to the Monroe County Bar Association Solo and Small Firm Conference.