Shari Klevens (left) and Alanna Clair, Dentons. (Courtesy photo)

Nearly every practicing attorney has some sort of online presence, whether through a social media professional networking site like LinkedIn or through the attorney's law firm. Indeed, most law firms publish bios for each of their attorneys, noting their education, areas of practice and prior experience. Attorneys and clients alike use web bios to identify potential attorneys and to learn more about members of the bar.

Although web bios are commonplace, there are risks to an attorney's management of their online bio.

Be Aware of Confidentiality

Attorneys often use their online bios as a way to highlight their successes. However, attorneys need to balance that interest with their obligation of confidentiality under Rule 1.6 of the ABA Model Rules of Professional Conduct. Rule 1.6(a) provides: “A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).”  Part (b) then identifies those situations in which an attorney may reveal confidential information, including to prevent “reasonably certain death or substantial bodily harm,” to prevent a client from committing a fraud that would substantially injure the financial interests of another, to defend against allegations of malpractice, among other situations.

While most attorneys know not to include privileged information in a public publication, such as an online bio, many attorneys are additionally scrubbing their bios of any confidential information unless the client has specifically consented, particularly in light of a 2018 opinion from the ABA Standing Committee on Ethics and Professional Responsibility.  In Formal Opinion 480, the ABA noted that “[l]awyers who blog or engage in other public commentary may not reveal information relating to a representation, including information contained in a public record, unless authorized by a provision of the Model Rules.”

Some attorneys may assume that they are free to write about client representations where the representations are a matter of public record. However, relying on Formal Opinion 480, more attorneys and law firms are not including case details or client names on their bios without express client consent. Indeed, may critics have opined that Formal Opinion 480 is not revolutionary but simply confirms the language of Rule 1.6.

Rule 1.9(c)(2) of the Model Rules additionally addresses confidential information relating to prior representations. Similar to Rule 1.6, Rule 1.9(c)(2) states that a lawyer who has formerly represented a client in a matter shall not thereafter “reveal information relating to the representation except as these Rules would permit or require with respect to a client.”

Many attorneys handle this in one of two ways—by obtaining client consent to disclose client relationships or matters (even if the representation is disclosed through public filings or other materials) or by describing relationships and matters in a way that does not reveal the confidential information.

Rules on Advertising May Govern

Attorney web bios are likely subject to the ethical rules regarding advertising and what an attorney may or may not say to a potential client.

Rule 7.1 of the Model Rules of Professional Conduct prohibits an attorney from making “a false or misleading communication about the lawyer or the lawyer's services.” The rule defines a communication as “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.” Although attorneys are permitted to describe their past successes (subject to the limitations on confidentiality described above), according to comment [3] to Model Rule 7.1, attorneys should take care to avoid leading “a reasonable person to form an unjustified expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client's case.” In such a situation, a “truthful” statement about a past representation could still be viewed as “misleading” to potential clients.

Thus, obviously, most attorneys will avoid including anything in their bios that is misleading. If their bios focus on developing clients who may have matters similar to those previously worked on by the attorneys, the attorneys may consider using a disclaimer or other clarification to note that the outcome of any single representation will depend on the facts and circumstances. Many will also strive not to include bombastic or bragging statements in their bio that could run afoul of the rules on advertising (and, from a marketing perspective, may make the attorney less likely to be hired).

Bios as a Marketing Tool

Online bios are useful tools for lawyers in private practice to raise awareness of their services and attract clients. Thus, it is critical that attorneys ensure that their bios accurately reflect the type of work they do. From a marketing perspective, attorneys may try to find ways to stand out, to summarize their relevant experience, and to highlight their skills.

There are a few parameters of which attorneys can be aware. First, although attorneys may be able to describe the types of cases they handle or the types of clients they serve, most attorneys will avoid stating that they have a “specialty” in a certain area. This is because many bar rules restrict an attorney from calling themselves an expert in a type of law absent any particularized certification. For example, Rule 7.2(c) of the Model Rules provides that a lawyer shall not state or imply that they are certified as a specialist in a particular field of law unless the lawyer has been certified as such by an appropriate organization. Thus, an implication in a bio that suggests that an attorney is specially certified for a particular area of law may create ethical complications for the attorney.

Second, many attorneys strive to update their bios on a regular basis, to reflect recent developments, speaking engagements, and other opportunities. Indeed, an out of date bio is unlikely to present an attorney's skills in the best light. Many attorneys will ask another colleague—or, depending on the size of the firm, even a member of the firm's marketing department—to review the bio for typos, errors, and other issues that might limit the attorney's ability to present themselves.

Shari L. Klevens is a partner at Dentons US in Atlanta and Washington, D.C., and serves on the firm's U.S. board of directors. She represents and advises lawyers and insurers on complex claims and is co-chair of Dentons' global insurance sector team.

Alanna Clair, also a partner at Dentons US in Washington, focuses on professional liability and insurance defense. Klevens and Clair are co-authors of “The Lawyer's Handbook: Ethics Compliance and Claim Avoidance” and the upcoming 2020 edition of “Georgia Legal Malpractice Law.”