by Suzanne Raggio Westerheim
Rules 7.01 through 7.07 of the Texas Disciplinary Rules of Professional Conduct (the Advertising Rules” govern the provision of information about legal services. Lawyers often mistakenly think that they do not need to worry about these rules, because they do not advertise. But if your firm has a website, these rules apply to you. The Advertising Rules have applied to websites for as long as there have been websites. Amendments to the Advertising Rules in 2005 explicitly made these rules applicable to websites. The Advertising Rules require that all but the most basic of websites be submitted to the Advertising Review Committee of the State Bar of Texas (ARC) for review. Yet I see websites all the time that do not comply with the Advertising Rules and have obviously never been submitted for review.
The ARC actively enforces the filing requirement. Recently I have had lawyers in everything from solo firms to international law firms contact me after receiving a letter from the ARC for failure to submit the firm’s website for review. It does not matter how big your law firm is or how many other states or countries in which it operates. If the firm has an office in Texas, the website must be submitted to the ARC for review, and the entire website must comply with the Texas Advertising Rules.
What can happen if you fail to submit your website to the ARC? The Advertising Rules are, of course, disciplinary rules, and failure to comply with the rules can result the ARC filing a grievance against you. The good news is that is not usually the first step they will take if they learn that you have failed to submit your website for review. They will first send you a letter requiring you to submit the website for review. In addition to the regular $100 filing fee, you will also be required to pay a $250 late fee. Once the website is submitted for review, they will either approve the site or notify you of rule violations that are contained in the site and require that changes be made in a specified period of time. Failing to make the required changes can result in a grievance being initiated by the ARC.
Failing to submit your website to the ARC can also result in a waste of time and money. For example, a firm could spend thousands of dollars on videos that later must be scrapped because they do not comply with the rules. Or a large firm can spend hundreds of thousands of dollars marketing the firm under what is later determined to be a prohibited trade name.
What should you do if your website has never been submitted to the ARC or if you have received a letter from the ARC for failure to submit your website? The first thing you should do is review your website for compliance with the applicable rules. It is best to eliminate problems with your website before the ARC calls them to your attention. In addition to Advertising Rules, the ARC also publishes Interpretive Comments to the rules, which can be found on the State Bar website along with other information about the advertising review process. The Interpretive Comments contain additional requirements that are not found in the disciplinary rules, themselves.
In Texas, lawyers are prohibited from practicing under a trade name. One thing that is not obvious from the rules is how broad that prohibition is. Anything other than the legal name of the firm is considered to be a trade name. So, if the name of the firm is Smith, Jones, Wilson & Park, P.C., using the name “Smith Jones” to refer to the firm can be considered a trade name. A shortened name of the firm can be used, but it must be used consistently on the website and the legal name of the firm must also appear on the home page.
Once you have done your best to insure that the website complies with the applicable rules, you should submit your website for review by filling out the application and submitting the required fee. Review can take from 25 to 40 days depending on whether the site is submitted for preapproval or filed concurrently with its first dissemination. After that period of time, you can expect either an approval letter or a letter with additional changes to be made. Once you have made all the required changes, you should receive a letter approving your website. Be sure to keep this letter for your records.
Suzanne Raggio Westerheim has a solo legal ethics practice. She can be reached at email@example.com.