Controlling
your Internet presence
by Benjamin McCorkle, Esquire
S
o, you got yourself a website, and you are ready to start raking in the dough from all those Internet customers that will soon be banging down your door. Of course, a company’s Internet presence includes more than just the website. It also includes all social medial exposure, e.g. Facebook, Twitter, LinkedIn, Instagram, Pinterest, MySpace, Google+, and any other place in cyberspace that you advertise or do business, as well as any other commercial presence on auction sites such as eBay, or on websites of affiliated companies. Checking out your entire Internet presence for possible risks is beyond the scope of this article. Instead we will focus on the aspects of a website most likely to create problems. Ethical Communications According to Rule 7.1 of the Arkansas Rules of Professional Conduct, your communication about you or your services (i.e. your website) should not be false or misleading by: • Making a material misrepresentation or omission; 1 • Creating an unjustified expectation about the results the lawyer can achieve;2 • Making an unsubstantiated comparison to another lawyers’ services;3 or • Using a testimonial or endorsement.4 According to Rule 7.2 of the Arkansas Rules of
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Professional Conduct, your website should not be false or misleading by: • Offering anything of value for a client referral;5 • Failing to disclose the name of a responsible attorney;6 • Using actors without clearly identifying them;7 or • Using a current or former client in any way.8 According to Rule 7.4 of the Arkansas Rules of Professional Conduct, your website should not state that you are specialized, certified, or an expert in any specific area of the law unless you are certified by a recognized certifying entity such as the certifications for tax, admiralty, or patent law.9 If relying on a certifying entity, that entity must be an approved entity certified by the American Bar Association or by the Arkansas Plan of Specialization. In spite of calls by some for stricter enforcement of the ethical rules governing lawyer advertising,10 sanctions based on Rule 7 are few. The annual reports of the Office of Professional Conduct (Ann. R.) for 2002 through 2013 list only 21 Rule 7 sanctions, and 13 of those were based on Rule 7.3, direct solicitation of clients.11 Intellectual Property Issues Copyright. The content of your website (photos, graphics, and copy) will be created by you and your employees, created by the agency programming the website, or created continued on page 20
ATLA Docket • Summer 2014