The 10 Commandments of Online Advertising

If you’re reading this, I suspect you are already familiar with Groupon, LivingSocial, and woot! – services that promise subscribers “deals of the day” from local businesses.  Admittedly, the discounts are tempting – often 50% off featured services or products.  And if the offer comes from a restaurant, hotel, or retailer, why not take advantage?  It’s all good stuff.  Customers save money and participating businesses can build their brand, find more clients, and “book more revenue.”   No wonder lawyers want to jump on board!  But before you sign on with a deal-of-the-day Web site, know and understand the ethics framework:

From – What hath the Web Wrought? Advertising in the Internet Age

The 10 Commandments of Online Advertising – Material Misrepresentations, Illicit Fee Sharing, Impermissible Referral Fees, Conflicts, and Confidentiality

  1. Stick to the facts:  “Lawyers are generally permitted to pay third parties to communicate information about their services on the Internet as long as the communication does not misrepresent a material fact and is not otherwise materially misleading.”
  2. Give details and do the math:  Accurately describe your proposed services in the online offer and how you calculated the claimed discount.
  3. Specify the jurisdictional limits of your practice.
  4. Explain that your ability to provide the promised services depends on whether or not a conflict of interest exists.
  5. You may not pay others for online recommendations or referrals.  (It is permissible to pay for the actual cost of online advertisements.)
  6. Give no impermissible rewards:  “Offering services on a deal-of-the-day Web site will violate Rule 7.2(a) if a lawyer is compensating the Web site as a reward for having made a recommendation resulting in employment by a client or securing the lawyer’s employment by a client.”
  7. Carefully scrutinize the payment procedure!  If the terms of service require you to pay a fee based on the work derived from the advertising or the number of retained clients, then the payment arrangement violates RPC 5.4.
  8. Paying a fixed fee for “hits” or “clicks” on an ad is permissible, provided the fee:  (a)  is not related to any particular work derived from the online advertising or (b) is not based on an actual referral or retained client.
  9. A lawyer-client relationship exists as soon as the potential client purchases a voucher for your services on the deal-of-the-day Web site.  Run a conflict check at the earliest possible opportunity and be prepared to issue a refund if you cannot undertake representation.
  10. “Even if a lawyer-client relationship is not created, a deal-of-the-day customer ‘who discusses with the lawyer the possibility of forming a client-lawyer relationship’ before or after purchasing a deal is a prospective client who is owed certain duties of confidentiality and loyalty under RPC 1.18.”

Read the full article here.

Copyright 2011 Beverly Michaelis

Oregon Adopts Social Media Jury Instruction

Last year I blogged about a new jury admonition adopted by Ohio on the use of social media.  With today’s release of the 2010 Supplement to the Uniform Civil Jury Instructions (UCJI), Oregon is the latest jurisdiction to explicitly address this issue.  Due to copyright privileges, I am not able to reproduce the new language here, but I can give you an overview.  Revised UCJI 5.01 specifically directs jurors to refrain from:

  • Searching the Internet, Web sites, or blogs
  • Using other electronic tools to get information about the case
  • Communicating by cell phone, e-mail, Blackberry, iPhone, text messaging, Twitter, blogs, Web sites, chat rooms, Facebook, My Space, LinkedIn, YouTube, or any other social networking site

The instruction goes on to make some interesting comments about why the law limits these forms of communication.  I encourage you to read it.  A 2010 supplement to the Uniform Criminal Jury Instructions (UCrJI) is still in progress, but presumably UCrJI No. 1004 will be similarly strengthened.  The current criminal instruction contains a brief admonishment against such communications.

The Uniform Civil Jury Instructions and Uniform Criminal Jury Instructions are included in BarBooks and therefore free to all Oregon lawyers.  You can access the revised civil instruction now via BarBooks.  If you prefer the traditional hard copy version, you can pre-order either or both at the Oregon State Bar Legal Publication Bookstore.  

Copyright 2011 Beverly Michaelis

Are You Addicted to the Internet?

Are you on the Internet frequently?  Do you routinely stay online longer than you intended?  Are you often preoccupied with thoughts of the Internet?  Is your smartphone always by your side, at the ready to send a text or check e-mail?  If the answer to these questions is yes, then you may have a problem.

In the May issue of the Oregon State Bar Bulletin, Sharon Nelson and John Simek write about Internet addiction and compulsive use of technology.  Here is what they suggest to maintain your sanity, your health, and your relationships:

  • Avoid giving your cell phone number to clients except in rare circumstances;
  • Specify when you will respond to e-mail in your retainer agreement.  Also explain your e-mail reply policy during extended absences;
  • Private time for you and your family is sacred.  Try to turn computers off and put smartphones away after dinner;
  • Guard vacation time.  If you must check in with the office, limit the time you spend on work to a set amount of minutes per day – the rest can wait;
  • Create similar rules at work.  When you need to focus on a project, power-off your phone and turn off e-mail notifications.

In short:  Get Unwired or Come Unglued, a very apt title for Sharon and John’s article.

Can You Spell S-C-A-M?

E-mail scams are a familiar topic on this blog:

So what new twist would provoke an unprecedented fifth post by yours truly?  An article in the May issue of the Oregon State Bar Bulletin by Deputy General Counsel Helen Hierschbiel.

What’s a Scammer To Do?

Most lawyers are familiar with the traditional debt collection scams and have learned to avoid or ignore them.  So what’s a scammer to do?  Why, pose as an out-of-state lawyer, of course!

Helen writes:

“A more recent twist … is when the request for representation comes from someone posing as an out-of-state lawyer who represents a foreign corporation. Some scams have even reclaimed law firms’ defunct websites or created websites using existing lawyers’ names.  By assuming the identity of lawyers’ out-of-state colleagues, scam artists hope to boost their credibility with their targeted victims.”

Staying Safe

Helen advises:

Follow the Internet Crime Complaint Center’s advice on how to inspect a cashier’s check:

  • Ensure the amount of the check matches in figures and words
  • Check to see that the account number is not shiny in appearance
  • Be watchful that the drawer’s signature is not traced
  • Official checks are generally perforated on at least one side
  • Inspect the check for additions, deletions, or other alterations
  • Contact the financial institution on which the check was drawn to ensure legitimacy
  • Obtain the bank’s telephone number from a reliable source, not from the check itself

Can I Report Scammers Without Breaching My Duty of Confidentiality?

Absolutely!

“If the person contacting the lawyer has no real intention of creating a lawyer-client relationship, but is only interested in victimizing the lawyer, then the person is not an actual client and the duty of confidentiality does not apply.  In the absence of such a duty, there would seem to be no reason why lawyers who are the targets of these scams could not cooperate with law enforcement authorities in sharing whatever information they have about the perpetrator of the fraudulent scheme.  Before doing so, however, lawyers should take care to ensure that they are, in fact, dealing with a scam.”  Helen Hierschbiel, How to Avoid Becoming the Next Victim: Scammers Take Aim at Lawyers.

Who Ya Gonna Call?

We’ve talked about this before, but it bears repeating.  Report fake checks or mail scams to:

Helen also recommends reporting to the Internet Crime Complaint Center, a partnership between the Federal Bureau of Investigation (FBI), the National White Collar Crime Center (NW3C), and the Bureau of Justice Assistance (BJA).

Copyright 2010 Beverly Michaelis (as to original post content) with many thanks to Helen Hierschbiel and her excellent article, How to Avoid Becoming the Next Victim: Scammers Take Aim at Lawyers.