Disciplinary Authority and Choice of Law in Online Advertising: Disclaimers or Double Deontology
The Professional Lawyer, Vol. 21, No. 1, pp. 8-15, 2011
20 Pages Posted: 26 Oct 2012
Date Written: 2011
Firm websites and social media pages are bright, sometimes brilliant, ways to reach countless potential clients and referral sources at relatively affordable prices. Websites are also awash in ambiguity with respect to disciplinary authority and choice of law issues. The 'a-jurisdictional' nature of the Internet transcends traditional notions of intrastate lawyer regulation, and as a consequence, the jurisdictional aspects of online advertising have long been a source of confusion for attorneys and their regulators. Answering seemingly simple questions - such as whether California or New York disciplinary rules, or both, apply to a particular website or page - can quickly become frustrating. This Essay is designed to provide (some) answers to questions of advertising ethics, disciplinary authority, and choice of law in the context of lawyer websites and social media pages. It first discusses the two most directly relevant ethical violations, misleading advertising and unauthorized practice of law (Part I). The Essay then analyzes the disciplinary authority and choice of disciplinary law that will likely apply to the alleged violations (Part II). It finally provides advice for attorneys who wish to avoid these disciplinary problems (Part III). Thankfully, attorneys can limit, if not eliminate, these problems through the use of disclaimers; or less thankfully - but even more effectively - attorneys can eliminate these problems by following 'double deontology' (i.e., acting consistently with the ethical rules of the two, or more, arguably applicable states’ ethical rules). In short, then, attorneys should adopt a 'disclaimer' model or a double-deontological model, if not both, to lead an ethically prudent virtual life.
Keywords: lawyer advertising, choice of law, disciplinary authority, social media, law firm websites, disclaimers
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