One main concern of a solo practitioner or lawyer in a small firm is attracting clients. In the past, an attorney striking out on their own could simply hang their shingle and place a listing in the phone book as a way to advertise that the practice is open and ready to accept clients. However, the advent of the Internet age, consumers’ increased sophistication and reliance on electronic media necessitates that lawyers keep up with the times. In today’s market, not having an online presence can make or break a new or small law practice. In some practices, Web sites are the first point of contract and the first impression people get of your practice. Facebook pages, professional blogs and listings in other social networking sites, such as LinkedIn or Twitter, are also quickly becoming de rigueur and if used properly, they are a cost-effective way of maintaining contact with current and prospective clients. Before embarking on an electronic media blitz, an attorney must first be aware of the Texas Disciplinary Rules of Professional Conduct (TDRPC) and if the type of communication contemplated is governed by the Rules.

Commercial Speech: TDRPC and Advertising

TDRPC 7.02 - Communications Concerning a Lawyer’s Services
Prior to disseminating advertisements, an attorney must review TDRPC 7.02, which states that, “a lawyer shall not make or sponsor a false or misleading communication about the qualifications or services of any lawyer or firm.” Comment 1 of TDRPC 7.02 goes on to state, “the Rules within Part VII are intended to regulate communications made for the purpose of obtaining professional employment.” Any communication which is, “related solely to the economic interests of the speaker and its audience,”[1] is considered commercial speech governed by Part VII of the TDRPC. Comment 2 of TDRPC 7.02 further states that, “this Rule governs all communications about a lawyer’s services, including advertisements regulated by Rule 7.04 [advertisements in the Public Media] and solicitation communication regulated by Rules 7.03 [Prohibited Solicitations & Payments] and 7.05 [Prohibited Written, Electronic, Or Digital Solicitations].” Since the Rules explicitly include electronic media, public communications by attorneys in Web sites, online advertisements and other electronic social media should be examined prior to posting or publishing online to determine if they qualify as advertisements or solicitations under Part VII of the TDRPC. The answer to this question will determine if the communication is in fact an advertisement, or “commercial speech,” and therefore subject to the advertisement and solicitation rules.

TDRPC 7.07 – Filing Requirements and Exemptions
If a lawyer determines the communication is subject to the advertisement and solicitation rules, a lawyer shall file with the Advertising Review Committee of the State Bar of Texas (ARC), a copy of the written, audio, audio-visual, digital or other electronic advertisement, a completed application form and a check for the review fee.[2] Rule 7.07 (c) further specifies the requirements for Web sites:

“Except as provided in paragraph (e) of this rule, a lawyer shall file with the Advertising Review Committee of the State Bar of Texas no later than its first posting on the Internet... information concerning the lawyer’s or lawyer’s firm’s Web site... The Filing shall include: (1) the intended initial access page of a Web site; (2) a completed lawyer advertising and solicitation communication application form and; (3) a check or money order Payable to the State Bar of Texas...”

However, the rules exempt certain commercial speech from the filing requirements. Paragraph (e) of TDRPC 7.07, sets out the types of communications that are exempted from the filing requirements provided that they comply with the other rules governing attorney advertisements. For example, Rule 7.07(e) states a Web site that contains only certain information such as the names of the firm and its lawyers, office address, electronic address, telephone and fax numbers, office hours, and the particular areas of the law in which the firm specializes is exempt, and the attorney does not have to submit the Web site to the Advertising Review Committee.

Likewise, speech which is solely for educational, political and informational purposes is not considered commercial speech and is specifically exempted by TDRPC 7.07(e), thus, does not have to be reviewed by the ARC. A law blog, electronic newsletter or other electronic communication which is disseminated to current and/or prospective clients discussing topics, “not motivated by or concerned with a particular past occurrence or event... and also is not motivated by or concerned with the prospective client’s specific existing legal problem of which the lawyer is aware,” is not one which must be reviewed by the ARC.[3]

TDRPC 7.04 - The Pitfalls of Online Communication
Unless they fall under the exemptions listed in 7.07(e), Web sites and other online communications are considered public media and as a result, must follow the regulations under the TDRPC, namely 7.04 – Advertisements in the Public Media. Rule 7.04 is replete with guidelines of what an advertisement can and cannot contain, so, it is advisable that every attorney review it in its entirety. Generally speaking, Rule 7.04(a) covers attorneys advertising as specialists when they are licensed in a particular practice area (patents, trademarks and intellectual property); listings for certain lawyer referral programs; and announcements in legal directories. Rule 7.04(b)(1) requires that at least one attorney list themselves on the ad as the person responsible for the content of the communication. Rule 7.04(b)(2) states the conditions for which a lawyer can state they are a specialist in an area. Other requirements set forth in 7.04 say that the attorney or firm must review the advertisement and have a lawyer approve it in writing; must keep a copy of it for four years after its dissemination; and requires lawyers to portray themselves in advertisements unless clearly specified that the actors are paid.

But, unlike a print ad or television commercial that is expensive and difficult to modify after it has been produced and approved by the ARC, online communications are by nature more fluid and can be revised and edited at any time. That is part of their cost-effectiveness and allure. A Web site, for example, must be kept current to reflect the firm accurately; however, constant updating may create opportunities for the communication to fall out of compliance with the TDRPC. The attorney responsible for the content of the communication must be aware of and must approve in writing all subsequent changes to a Web site. For instance, the addition of information on a partner’s curriculum vitae or the inclusion of a recent favorable verdict to the results page of a Web site need to be reviewed and approved by the attorney prior to being published online. Some argue that these changes also require for the Web site to be resubmitted to the ARC for a renewed review.

Electronic Communications and Other Disciplinary Rules to Consider
Like any business, a law firm should have a marketing plan in place to target and attract clients, including varied forms of communication to create the contacts with prospective clients. Marketing experts say that it requires numerous contacts with a prospective client to land their business. The National Sales Executive Association recently reported that 80 percent of sales are made on the fifth to twelfth contact with a prospective client. A contact may be as simple as handing someone you meet a business card, but in the age of the Internet, it can also be as creative as maintaining a web page, a Facebook page or writing a blog on an area of the law which may be of general interest to prospective clients. With the Internet, the number of cost-effective and innovative ways to make contact with current and potential clients and referral sources has increased. Whether the firm is small or large, a well thought out marketing plan must be coupled with perseverance and commitment in order for it to be a success. Attorneys must remember that if the communication is of a public nature, it not only has to comply with the disciplinary rules concerning advertisements, but it also has to comply with all the rules the TDRPC.

TDRPC 3.07 – Trial Publicity
For instance, in a California case a juror was dismissed when he admitted having read a blog about the trial which was written by an attorney hired by a firm involved in the trial.[4] In Texas, TDRPC 3.07(a) governs this scenario and states that, “in the course of representing a client, a lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if... it will have a substantial likelihood of materially prejudicing an adjudicatory proceeding.”

TDRPC 4.04 and 8.02 – The Dangers of Status Updates
Social networking sites such as Facebook, Twitter or LinkedIn allow the user to post status updates or other information immediately, and sometimes may give attorneys an opportunity to make rash and unwise decisions to vent frustrations with their clients, opposing counsel and judges in a very public format. TDRPC 4.04(a) says that, “in representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay or burden a third person.” Also, TDRPC 8.02(a) states that, “a lawyer shall not knowingly make false statements, or with reckless disregard for their truth... about the qualifications or integrity of a judge.”[5] As tempting as it may be to release frustrations on these forums, it is also very dangerous.

TDRPC 3.06 – Online Communication is Not Confidential
It is likewise dangerous for attorneys to discuss cases in any public online forum even if the attorney changes the names and obscures the facts. Your communication may not be disguised well enough and may end up revealing too much confidential information. TDRPC 1.05(b)(1) says that, “a lawyer shall not knowingly reveal confidential information of a client or a former client to…anyone else...”

Conclusion
Online communication is quickly becoming the most common way in which clients seek information from and about prospective attorneys. Although the Internet is a powerful tool in a small firm’s marketing arsenal, it is also fraught with danger if used without first consulting the TDRPC. The best way to avoid disciplinary actions based on online communication is to gain a vast knowledge of the Rules, and to be cognizant that online communications are, for the most part, public and permanent. Remember that regardless of whether it is a professional or personal forum, online communication remains accessible for a long time. As an attorney, any online communication about your work should be maintained in a professional manner at all times, so it can result in positive gains, rather than in disciplinary actions.

Claudia Zavaleta Eubanks is a consultant for clients in the healthcare field and draws on her previous experience as a corporate risk manager and administrator. She is also of counsel in the Houston law firm of Waters • Solomon. Eubanks received her law degree in 1998 from the University of Houston Law Center.

Endnotes
1. See Texans Against Censorship, Inc. v. State Bar of Texas, 888 F. Supp. 1328, 1342 (E.D. Tex 1995).
2. Texas Disciplinary Rules of Professional Conduct 7.07(e). 3. Id. at 7.06(e)(6). 4. “Lawyers Blogging on Cases: Good or Bad?” by Dan Slater, WSJ Blogs – Law Blog, posted on May 1, 2008 at
http: blogs.wsj.com/law 2008 05 01 lawyers-blogging-on-cases-good-or-bad. 5. See also “A Legal Battle: Online Attitude vs. Rules of the Bar” by John Shwartz, The New York Times, posted on September 13, 2009 at http://www.nytimes.com/2009/09/13us13lawyers.html?pagewanted-print.