What must lawyers do when a client builds a litigation web page, without their knowledge, that names them and solicits other victims to come forward?

Plain-English summary

Two attorneys represented plaintiffs in high-profile litigation over a teacher's sexual abuse of students and a school's alleged failure to disclose the teacher's propensity. Without the attorneys' knowledge or direction, one client created a web page devoted to the litigation that named all counsel, asked other witnesses or potential parties to come forward, and told victims not to hesitate to call or write, assuring "safe and anonymous" contact. No fee information appeared and the page did not suggest retaining the attorneys. The attorneys asked whether the client's page required analysis under the advertising rules (Rules 7.2 and 7.3).

The committee treated the page as serving two functions. As a tool to seek witnesses and potential parties, it was a "means" of pursuing the client's objectives, on which Rule 1.2(a) requires the lawyer to consult the client; ideally consultation would have come first, but the attorneys should still review the page and counsel the client on its advantages (cheaper than an investigator) and disadvantages (tainting the jury pool, negative community reaction). Because the page was a means rather than an objective, the attorneys had authority to decide whether to use it, and if the client refused to follow that decision, they would be authorized to withdraw under Rule 1.16(b)(3).

As a vehicle to advertise for potential plaintiffs, the page raised a separate point: whether to use public media to advertise for clients is the lawyers' decision, not the client's, so the client's page was an unauthorized attempt to advertise for the attorneys. If the attorneys disapproved, they should demand changes, such as a disclaimer that the client prepared the page without the attorneys' authorization, or removal of references to seeking potential parties. The committee further questioned whether the page complied with Rules 7.1 and 7.2, noting that Rule 7.1(a) bars false or misleading communications and doubting the accuracy of the "safe and anonymous" assurance (a contacting third person might become a witness). If the page did not comply and the client refused to bring it into compliance, the lawyers should give serious consideration to withdrawal to avoid any impression they had authorized or adopted the client's continued use of the page.

Currency note

This opinion was issued in 1999, before the South Carolina Bar's adoption of the 2005 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Whose decision is it whether to use the client's litigation web page?

A: The committee concluded that, because using the page is a "means" of the litigation, the decision is the lawyers' to make after consulting the client under Rule 1.2(a); if the client refuses to abide by that decision, the lawyers may withdraw under Rule 1.16(b)(3).

Q: Can a client advertise for the lawyers' services on his own?

A: The committee concluded no: whether to use public media to advertise for clients is the lawyers' decision, not the client's, so the page was an unauthorized attempt to advertise for the attorneys.

Q: Did the "safe and anonymous" assurance comply with the advertising rules?

A: The committee questioned it under Rule 7.1(a), which bars false or misleading communications, because a third person who contacts the attorneys might well become a witness in the matter.

Background and rules framework

The opinion interpreted South Carolina RPC 1.2(a) (allocation of authority; means versus objectives), 1.16(b)(3) (permissive withdrawal when a client persists in conduct the lawyer disagrees with), and 7.1(a) and 7.2 (advertising of legal services; no false or misleading communications), corresponding to the like-numbered Model Rules.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.2(a) / Model Rule 1.2: allocation of authority between client and lawyer; means versus objectives.
• South Carolina RPC 1.16(b)(3) / Model Rule 1.16: permissive withdrawal.
• South Carolina RPC 7.1(a), 7.2 / Model Rules 7.1, 7.2: advertising; no false or misleading communications.

See also

• SC Bar Ethics Op. 01-03: Paying for Internet Leads
• SC Bar Ethics Op. 18-02: Chiropractor-Funded Ads
• SC Bar Ethics Op. 02-06: Lawyer-Owned Mortgage Broker

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-99-09/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 99-09

Facts
Two attorneys have been retained on behalf of plaintiffs to represent their interests related to childhood sexual abuse of students by a teacher. The allegations include that one of the teacher's employers, a school, knew of the teacher's propensity to sexually abuse students and did not disclose that knowledge when it undertook to prepare for teacher recommendations to other schools. Students allegedly abused by the teacher have brought suit.
The case has aroused a high level of public interest. The attorneys have learned that one of their clients has taken it upon himself to create a web page devoted to the litigation. The web page contains a request to contact either attorney if any other witnesses or potential parties wish to come forward to identify themselves. After identifying all counsel involved in the case for both plaintiff and defendants, the site states in pertinent part: "If you are a victim, please do not hesitate to call/write . . . ." It identifies the attorneys and assures the contact will be safe and anonymous.

Attorneys have not requested or directed their client to create the web page and were not aware they would be identified in the web page. There is no fee information given nor a suggestion that either attorney be retained.

Question
Does the creation of a web page by a client dealing with current litigation and seeking potential witnesses, as well as prospective clients, which is unknown to the attorneys, require an analysis under Rules 7.2 and 7.3 of the Rules of Professional Conduct?

Summary
The attorneys have a duty to review the web page and to counsel their client about the advantages and disadvantages of the use of the page. S.C. Rule Prof. Cond. 1.2(a). If the client refuses to follow the attorneys' advice on the use of the web page, the attorneys would be authorized in seeking to withdraw under Rule 1.16(b)(3). The web page is also being used in part to advertise for potential plaintiffs in the litigation. Whether to use the public media to advertise for clients is a decision that lawyers are entitled to make, not their clients. If the client refuses to make appropriate changes in the page, the attorneys would be justified in moving to withdraw under Rule 1.16(b)(3). The attorneys may conclude that they do not object to the web page being used to seek potential plaintiffs. If the web page does not comply with the rules on advertising, the attorneys should counsel the client about any changes that need to be made in the page to bring it into compliance with those rules. If the client refuses to make the suggested changes, the attorneys should give serious consideration to withdrawal from representation to avoid any implication that they have authorized or adopted the client's continued use of the web page.

Opinion
The web page is being used to seek witnesses and potential parties to the litigation. Lawyers have a duty to "consult with the client as to the means" by which a client's objectives are pursued. S.C. Rule Prof. Cond. 1.2(a). Ideally, the attorneys should have had the opportunity to consult with their client about the desirability of using the web page before the page was created, but the client's unilateral action deprived the lawyers of this possibility. Nonetheless, the attorneys should still review the web page and consult with their client about the advantages and disadvantages of continued use of the page. The page has the possible advantage of obtaining potential witnesses at a cost that would be less than the expense of hiring an investigator, but there are disadvantages that should be discussed with the client. The public nature of the web page may taint the jury pool. Further, the existence of the page might be viewed by some members of the community as inappropriate; negative community attitude would be harmful to the client's case. The attorneys should counsel the client about these matters. Since the use of the page involves a "means" rather than an "objective" of litigation, the attorneys have the authority to decide whether to use the page after consultation with their client. Rule 1.2(a). If the client refuses to follow the attorneys' decision on this matter, the attorneys would be authorized in withdrawing under Rule 1.16(b)(3).

The web page is being used in part to advertise for potential plaintiffs in the litigation. Whether to use the public media to advertise for clients is a decision that lawyers are entitled to make, not their clients. The client's web page is an unauthorized attempt to advertise for business for the attorneys. If the attorneys do not approve of this method of advertising, they should promptly inform the client of this and demand that the web page be changed. One way to change the page would be to include a disclaimer, stating that the page has been prepared by the client and has not been authorized or approved by the attorneys. Another possibility is to eliminate references in the page to seeking potential parties. The attorneys could insist on both of these changes. If the client refuses to take either or both of these steps, the attorneys would be justified in seeking to withdraw from the case under Rule 1.16(b)(3).

The attorneys may conclude that they do not object to the web page being used to seek potential plaintiffs. If the web page complies with the S.C. Rules on advertising of professional services, Rules 7.1 and 7.2, the attorneys may continue the representation without any further action. It appears to the Committee that the web page may, however, not comply with those rules. Rule 7.1(a) prohibits false or misleading communications. The web page states that any contact with the attorneys by a third person will be "safe and anonymous." The Committee questions the accuracy of this statement. For example, a third person who contacts the attorneys may well become a witness in the matter. If the web page does not comply with the rules on advertising, the attorneys should counsel the client about any omissions and advise the client about how the web page could be changed to comply with those rules. If the client refuses to bring the page into compliance, the lawyer should give serious consideration to withdrawal from representation to avoid any impression that the lawyer has authorized or adopted the client's continued use of the web page.