Five Online Lawyer Marketing Red Flags  That Can Leave Law Firms Red-Faced

Most lawyers can methodically recite the ethics rules that govern marketing.

❎ No guaranteed results.  

❎ Required labeling as “attorney advertising.”

❎ No unverifiable superlatives. 

❎ No misleading copy suggesting that your firm is larger or more experienced than it is.

But that’s just the tip of the iceberg.

Most lawyers forget that when we market online, we’re not just acting as lawyers with ethics obligations to clients.  

We’re also operating as ordinary small businesses that are subject to a panoply of laws governing online marketing practices.  These rules continue to evolve in breadth and complexity, to address the emergence of new technology tools.  Here’s a quick refresher on eight online marketing red flags ⛳that can leave your law firm red-faced 🥵 if you’re not careful.

No Privacy Policies or Web Terms of Service: Lawyers who collect information from clients, whether it’s for scheduling appointments or gathering details about a case, need a robust web privacy policy and terms of service. A web privacy policy outlines how the collected information will be used, stored, and protected, ensuring transparency and building trust with clients.  Both the European Union, through GDPR and at least nine states (California, Virginia, Connecticut, Colorado, Utah, Iowa, Indiana, Tennessee, and Montana) have laws that require sites to disclose how they use personal information and allow for opt-out.  Even if your firm isn’t physically located  in one of these jurisdictions, the rules may still apply since your website might be viewed by a resident. 

Terms of Service govern use of the lawyer’s website, describing how content may be used, what rights attach through use of the site and any relevant disclosures.

The Legal ClauseIt includes law firm specific terms of service and privacy policies – but you can also crib from a biglaw website (since you know they’ve invested effort in developing terms), ask ChatGPT to take a stab at it or check out one of the many free TOS and Privacy Policy generators online (e.g. Termly, FreePrivacyPolicy.com)

Improperly Obtained Testimonials and Reviews  The FTC has always used its enforcement authority to target any kind of deceptive consumer reviews on a case by case basis, but in June 2023, the FTC proposed a new rule that establishes clear guidelines. Specifically, the rule prohibits suppression of reviews through use of threats, using reviews procured for one purpose for another, seeking reviews from employees or fake individuals and incentivizing positive or negative reviews (incentivized reviews without regard to favorability may be considered deceptive if payment is not disclosed depending on the facts, but are not flatly prohibited).  Lawyers who engage in any of these practices (such as giving large discounts for client reviews or threatening a client who posts something negative) open themselves to FTC enforcement actions.

CAN SPAM Act Violations:  Online email marketing initiatives must comply with the CAN SPAM Act which governs transmission of commercial email messages.  Among other things, a commercial email must identify that the content is an ad, include a valid physical address and give recipients an easy way to opt out.  A law firm’s failure to comply can trigger substantial penalties and be downright embarrassing.  (fun fact: two immigration lawyers are credited with originating first email spam campaign back in 1994)Virtually all reputable commercial email marketing tools (e.g., Mailchimp, Aweber, etc…) bake CAN SPAM Act compliance into their platforms so if you use one of those tools, you should be safe.  If not, check the FTC website for rules on CAN SPAM Act compliance.

No ADA Compliance:  Many lawyers don’t realize that the Americans With Disabilities Act (ADA) applies to lawyer websites.  That’s because the Department of Justice takes the position that websites are “places of public accommodation” and must be ADA compliant.  Some basics for ADA compliance include using high contrast text and background, alternative text for images, transcripts for audio and video content and making sure the site is both mouse and keyboard accessible.

Unfortunately, many web designers – even those who specifically serve lawyers – don’t always develop or warrant an ADA-compliant site.  Free manual DIY audit tools may suffice, or if your site is large enough, you might invest in a tool like  Acccessibe. 

Copyright Violations:  Recently, I learned of several attorneys hit with cease and desist letters for images that their web designers had used at their site. In at least one case, it turned out that the designer didn’t have copyright rights to the image, resulting in the lawyer having to do a takedown and make a payment to make the case go away. And by the way, the flip side is true too: you may learn that a competitor was able to use an identical AI-generated image posted at your site because AI-generated images can’t be copyrighted.  

Bottom line: As owner of the website, you need to ensure you have the IP rights to use images or logos at your site. This means asking designers to provide you with the source for images they use, and understanding site TOS closely for images and logos designed with platforms like Canva (which is notorious for many restrictions on using its templates in commercial logos).  

Over Reliance on AI:   For lawyer websites, the widespread adoption for generative AI is both a blessing in that it reduces the cost of content creation but also a curse in that if used to produce large quantities of low quality content, it can depress your SEO rankings on Google.   So if you’re outsourcing content for your site, you need to understand how it’s been produced – and for the sake of transparency, you may even want to consider disclosing the use of Chat GPT in content creation.  You could also check site copy through a site like ZeroGPT which purports to detect AI-generated content (these sites are still hit or miss).

We lawyers have come a long way from the day where compliance with legal ethics rules for marketing sufficed to keep us out of hot water.  But ethics compliance doesn’t exempt us from following the same rules that apply to any other small company doing business online.  

*Note:  Photo of Red Faced Racoon Lawyer created with Dall-E