Advising Law Firms on (1) Attorney Advertising, (2) Retainer Agreements, (3) Professional Websites/Social Media, (4) Trademarks, and (5) Trust Account Banking Requirements

Attorneys often need legal representation respecting the legal aspects of running their law firms. However, all too often, that is a situation in which the shoemaker’s daughter has no shoes.

The ethical and legal restrictions inherent in being a licensed member of the bar are largely unforgiving because they understandably focus mostly on protecting the client, not their lawyer. This means that an attorney running a law firm must not just protect the interests of their clients, but also their law firm. In the parlance of tort law, the attorney must avoid deviating from the relevant ethical and legal requirements applicable to the standards of practice in the legal community.

In short, running a law firm is more than simply building a successful personal services business. While managing attorneys are entrepreneurs in their own right, their main focus must still be on the practice of law consistent with the Rules of Professional Conduct. Fortunately, the Nissenbaum Law Group’s joint focus on both commercial law and attorney ethics compliance and defense renders it uniquely suited to assist in these matters.

The following is a list of five specific areas on which all managing attorneys should be focused.

I. Attorney Advertising

The ABA version of RPC 7.1 states that “[a] lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.” Accordingly, an attorney may well be responsible for the false perceptions and impressions that the advertisement creates in the minds of those who view it.

This can apply to the full range of marketing modalities: from posting reviews, publishing results obtained for other clients, and purchasing advertising space in digital or hard copy media. It should be noted that there are also certain states that have filing requirements for specimens of attorney advertising. Indeed, many states also have separate bar committees that investigate potential violations of that state’s attorney advertising rules. They generally have the authority to take action if there is a finding that the advertising requirements have been violated. Indeed, the American Bar Association itself has a Committee on Advertising and Marketing Law.

Clearly, law firms should consider retaining counsel to review their advertising to assess whether they comply with the relevant requirements before a compliance action is initiated by a local state bar committee or otherwise.

II. Form of Retainer Agreements

Retainer agreements are contracts between an attorney and their client for which there is generally no attorney representing that client’s interests. Perhaps this is an unavoidable circumstance, but it is the basis for the requirement in many states that attorney retainer agreements comply with very specific rules and guidelines relating to formatting and language.

The situation is rendered even more complicated by the fact that there are obviously different forms of retainer agreements when the representation involves contingency, billable, flat fee matters and of course, blended contingency arrangements (the latter of which may involve more than one of those modalities).

It is essential that law firms be aware of the relevant rules and laws that concern the required language to be included in their retainer agreements. This is yet another reason that hiring counsel to review the law firm’s retainer agreements for compliance with prevailing legal and ethical standards can be particularly helpful.

III. Legal Requirements for Websites and Social Media Platforms Used by Law Firms                           

There is little doubt that information on social media and websites maintained by a law firm can be construed as being governed by RPC 7.1 and other attorney advertising requirements. Unfortunately, these websites and social media platforms may also be subject to the requirements of terms and conditions and privacy policies that need to be clicked through to utilize those platforms that do not completely dovetail with the Rules of Professional Conduct. One such area of concern is the potential for the digital platform to absolve itself of liability for posting an erroneous rendition of the specific verbiage an attorney used in answering a legal question in a public forum. Shortening or otherwise editing that answer can create a misimpression as to what the attorney actually posted; the fact that the platform’s terms and conditions disclaim liability for the resulting damage to a user of the platform only adds to the problem. Likewise, there may be completely informal posts made by legal professionals associated with law firms that could be construed as representations for which the law firm is responsible. Another common area that is quite troublesome is when attorneys respond to negative online reviews. One of the typical questions that arise in that regard is whether by posting erroneous factual assertions about the attorney, the client has effectively waived confidentiality.

Attorneys should consider hiring outside counsel to review the law firm’s social media posts and those of their attorneys and staff when done in the professional context. It may make sense to create an appropriate policy respecting the same.

IV. Trademarks and Copyrights for Law Firms

Like any other commercial entity, a law firm is known by the name it uses in commerce. That raises the possibility that the firm would be well-served by filing a trademark for its name—and possibly its logo—with the United States Patent and Trademark Office.

In addition, it may be advisable to copyright the text and graphics contained on the firm’s website and social media platforms with the United States Copyright Office.

V. Training for Staff that Handle Bookkeeping and Banking for the Law Firm                  

Generally, the three-way reconciliation that an attorney must perform when they manage their law firm’s trust account is a non-delegable duty. However, that does not typically forestall the attorneys that manage those accounts from having the assistance of their non-attorney staff.

While the responsibility remains with the attorney, such staff can be instrumental in making things run smoothly. Therefore, the attorney should consider obtaining appropriate training for the staff who assist them.

Accordingly, it can be helpful to have the law firm’s bookkeeping staff trained by an outside law firm in the requirements of banking and billing involved in its practice. They can be incorporated in an overall discussion of law firm succession planning.

The Nissenbaum Law Group has a robust attorney ethics defense and law firm succession practice representing attorneys and law firms in New York, New Jersey and Pennsylvania. The firm welcomes inquiries from attorneys who are in need of such representation.