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I read an interesting post this morning by Kevin O'Keefe in which he questions the ethics involved in allowing a third party marketing or SEO firm to post a spam comment on a blog. This situation arose when someone (hopefully a third party and not a lawyer) posted a comment on Kevin's blog post that merely served as a way to generate links back to a personal injury firm in Idaho. The comment was never published because Kevin moderates comments and declined to publish the comment. Nonetheless, the question arises on whether or not this was a violation of ethics by the responsible law firm.
In his blog post, Kevin makes the following argument:
"Rule 7.1 of the Idaho Rules of Professional Conduct, like provisions in other states, proscribes false or misleading communications in advertising your services. “A communication is false or misleading if it: (a) contains a material misrepresentation of fact or law…”
"Surely they or someone acting on their behalf are not looking for a personal injury lawyer. In truth they are looking for links to their website for SEO purposes."
"Rule 7.2 of the Idaho Rules of Professional Conduct, governing lawyer advertising, provides in part:
"Any communication made pursuant to this rule shall include the name and office address of at least one lawyer or law firm responsible for its content."
"I didn’t think “Booker DeWitt” was a lawyer in the two lawyer firm, but I looked to make sure. He wasn’t."
Kevin did not report the lawyers to the Idaho Bar. However, he could have. I have a feeling that the infringing law firm had no idea that this comment even existed and that it was posted by a 3rd party marketing or SEO firm. However, could the Idaho Bar could potentially find the firm in violation of ethics law? My guess is it probably could. The law firm has to share some if not all of the responsibility for hiring a firm that either didn't know the law or didn't care.
That is why I always tell my friends and clients who are lawyers to be careful when they outsource their marketing to an agency or company that does not understand the laws of advertising as they pertain to attorneys. Make sure that if you decide to outsource your SEO or social media, you do so to a company that understands the business of law and the laws of lawyer advertising and conduct. Otherwise you are better off handling it yourself.
What do you think about this issue? Do you think the law firm could be found liable for an ethics violation? Does your firm use outsources marketing or SEO vendors? How do you check their qualifications? Please share your thoughts and comments