Most lawyers have websites. Most lawyers create those websites to solicit business for their firms. In my opinion, not having a website is a grave mistake for almost every lawyer. Even when clients are referred to you, I would bet that nine out of ten check your website before calling. If you are not on the web, you might as well be invisible.
Solicitation has a negative connotation, but simply put it is just an advertisement that targets a specific audience for pecuniary gain (RPC 7.3(b)). What are prohibited are “in-person solicitations” which included face-to-face, telephone or “real-time or interactive computer-accessed communication.” The solicitation limitations do not apply to close friends, relatives, or former or existing clients (RPC 7.3(a)(1)).
The prohibition on the above solicitation methods as explained in Comment 9 to the Rules of Professional Conduct “…in-person solicitation poses the risk that a lawyer, who is trained in the arts of advocacy and persuasion, may pressure a potential client to hire the lawyer without adequate consideration. These same risks are present in telephone contact or by real-time or interactive computer-accessed communication and are regulated in the same manner.”
What many lawyers fail to recognize is that when they create their own website or have it created by a layperson, they may be making it interactive to the point that it becomes a real-time communication. For example, you should not create and monitor a chat room where you interact with potential clients or use a pop-up chat window to begin a dialogue with potential clients who are visiting your site. Any such device that allows you to communicate in real-time with potential clients, and thus directly exert your training and experience in persuasion, is an unethical solicitation. The key is to avoid any interaction whereby you initiate a real-time conversation with a potential client. If the potential client initiates the conversation, either directly or by inviting you to contact them, the conversation is appropriate.
Moreover, any real-time communication also creates the basis for disqualification, conflicts of interest, and an unintended attorney-client relationship.
Technology creates gimmicks and devices faster than I can keep track. However, I can provide this general advice:
Make sure your website is in accord with RPC 7.2 and 7.4.
Remember that permissible advertising and solicitation methods for lawyers are not the same as those that may be used by other businesses. If your website is created by a third party vendor, make sure they are experienced in creating websites for law firms and understand our ethical strictures.
Limit your interaction with visitors and potential clients. Invite them to contact you, and/or create a device where they invite you to contact them directly. Once the potential client has initiated the conversation or interaction, you may call them, email them or otherwise solicit their legal business.
McDonough & McDonough LLP
Foley Griffin LLP.,
666 Old Country Road, Suite 305
Garden City, N.Y. 11530
(516) 741-9171 (fax)