We do everything in our power to make our clients happy! Our services will increase your bottom line! Big or small, we handle it all! As a professional, your personal website or company page is an essential link for those seeking or already utilizing your services. There they can find out more about you, your business, and why you’re better than your competitor. While the preceding example claims are attention-grabbing, they can also mean extra trouble if an unhappy client decides to take you to court. How? In her article “Avoiding website claims that increase malpractice risk,” CPA Deborah K. Rood outlined many of these risks as they applied to accountants. For lawyers, the American Bar Association’s Model Rules of Professional Conduct provide general guidance. Rule 7.1 prohibits a lawyer from making “a false or misleading communication about the lawyer or the lawyer’s services.” Ohio and Kentucky’s rules closely mirror the model rule. Violation of this rule could lead to a malpractice lawsuit. Listed below are the five most common claims plaintiffs’ attorneys cite in these cases. Could you be at risk?
1. Misrepresenting your education and/or honors and awards
Did a few semesters at Harvard magically turn into a degree? A passing mention in a trade magazine suddenly become a nationally-recognized award? Skewing the facts a bit never hurt, right? Wrong. Doing so puts your livelihood and reputation at serious risk. There are three types of misrepresentation professionals can be sued for: fraudulent (deceitful), negligent (careless), and innocent (thoughtless). Although clients may not necessarily double-check a professional’s credentials, plaintiffs’ attorneys in malpractice suits certainly do. Protect yourself and your career. Only post provable, accurate information.
2. Misrepresenting your experience and/or abilities
According to Michael Downey’s ABA article, “12 Tips for Reducing Online Dangers and Liabilities,” misrepresenting your experience or abilities is even more dangerous than false education or award claims. He goes on to state, “[i]ndividuals making claims against lawyers often use online boasting as exhibits in depositions and cases to suggest the lawyer was dishonest or misled a client…” This holds true for any profession, not just legal. A single experience with a particular type of client or area of practice does not an expert make. (In fact, even the use of the term “expert” can be called into question in a malpractice suit.) Stick with what you know and what you do well. Expand your knowledge base with practice and research before adding it to your professional repertoire.
3. Using absolute/overly broad terms in statements
Many busy professionals use freelancers or marketing firms to create and manage their online presence. Advertisers love to try to set their clients apart from the competition with difficult-to-prove statements known as “puffery.” While it might be overlooked when it comes to laundry detergent, professional services are held to a higher code of ethics. Carefully review any “marketing” copy created for your professional website or page. Look out for any word that immediately sets up unrealistic client expectations such as:
Also, be careful to avoid overly-broad statements or announcing competency criterions within your field. Overly broad claims run the risk of overpromising and underdelivering, the typical spark for a malpractice claim. Some situations may warrant a different approach or the usual standard may not be appropriate. As suggested by Rood, stick to phrases such as “may,” “often should,” “endeavor to,” or “generally” in your web copy instead.
4. Implying influence over a client’s success
Is your client seeing positive results since working with you? Great, just don’t take all the credit. Client success is the result of many variables, of which your services may be only one. While part of growing a business means sharing your victories, professionals must be careful when claiming their services lead to client profitability. The easiest way to avoid this is to ask for client testimonials that can be posted directly on your website or page. According to Entrepreneur magazine, 85 percent of small businesses rely on word-of-mouth referrals. Third-party accolades are a powerful display of your credibility (not to mention free advertising) while keeping expectancies realistic.
5. Not monitoring what others say on your site
Finally, just because you personally did not post a claim made on your site doesn’t mean you wouldn’t be held liable for it in a malpractice suit. Allowing fraudulent claims on your website or page is akin to you as a professional endorsing it. All businesses should perform a “content audit” of its web presence. While this is usually suggested as part of a marketing exercise, it can also act as a guard against the pitfalls listed above. Taking a bit of time to review your online content now may protect you against malpractice claims in the future.
In conclusion, as lawyers, we face many challenges. We have to attract clients, do excellent work, manage a business, stay abreast of changes in the law, etc., etc. I hope this article has provided you some useful guidance and eases your day-to-day burdens a bit. Cheers!
Todd V. McMurtry is a trial attorney licensed in Ohio and Kentucky. He focuses his practice on business litigation, real estate disputes, and professional malpractice. You can reach Todd at (859) 344-1188.