Feb. 16, 2022 – Is it OK to host a link for an outside business on my website in exchange for hosting that business's link on my website?

Question

I am an estate planning lawyer, and have a good relationship with a financial planning firm. I think the financial planning firm does good work, and I refer clients to them when I think appropriate and they do likewise.

Recently, they asked if I would be willing to post a small banner ad and hyperlink for them on my website and they would be willing to do the same.

Would it violate the advertising rules to host an ad for the financial planners on my law firm’s website?

Answer

This situation was considered in New York State Ethics Op. 888 (2011), which concluded;

A law firm website can include informational links to other websites, including those of banks and real estate companies. Neither the linked material nor the linkage itself may involve misrepresentation or create confusion. Reciprocal links are not inherently unethical. A simple reciprocal link (without revenue generated for the law firm and without any financial relationship between the entities) is permitted under similar conditions as an informational link.

Wisconsin's disciplinary rules do not directly address this question, but SCR 20:7.1 states, in relevant part:

A lawyer shall not make a false or misleading communication about the lawyer or the lawyers' services. A communication is false or misleading if it:

(a) contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.

As lawyers websites clearly are communications about services, they are governed by SCR 20:7.1. So no part of a lawyer website, including information about other businesses may itself be misleading or presented in a misleading fashion.

Lawyers also have an obligation to take steps to ensure that communications about their services on other websites are not false or misleading. NY State Op. 888 elaborates:

A law firm website may include informational links to third party websites. Such links are not ethically barred if the lawyer ensures that neither the inclusion of the link nor the material to which the link is made will create confusion or misrepresentation. For example, a link to an official government website that created the impression that the law firm had some government connection would be impermissible where the implied connection does not exist. NY Rule of Professional Conduct 8.4(c). The same is true for links to private websites if the link is likely to create confusion or misrepresentation. In some circumstances, an appropriate disclaimer would be necessary.

New York State Ethics Op. 888 (2011) also discusses reciprocal links:

No categorical ethical bar prohibits lawyers and third parties from agreeing to link to each other’s websites, but greater care must be exercised with reciprocal links. A reciprocal link (without revenue generated for the law firm and without any financial relationship between the entities) is permitted under similar conditions as an informational link.

The caution against any financial relationship is based upon New York’s equivalent of SCR 20:7.2(b), which states in relevant part:

(b) A lawyer shall not give anything of value to a person for recommending the lawyer's services, except that a lawyer may:

(1) pay the reasonable cost of advertisements or communications permitted by this rule;

This ban on giving “anything of value” in return for recommendations prohibits a lawyer from paying another to feature a link on another website.¹ Further, another type of financial relationship, such as an ownership stake by the law firm in the third-party service provider, may require disclosure to avoid misleading communications.²

On the facts as given in the scenario, an agreement to post information and links on each other’s websites does not violate any disciplinary rules as long as the communications are not false or misleading.

Endnotes

¹ Lawyers are permitted to pay the reasonable costs of advertising, so a lawyer may pay a bona fide cost associated with posting the link (likely to be negligible) but a payment from a lawyer to feature a link is likely to be found to be an impermissible payment for a recommendation.

² See also SCR 20:5.8. Lawyers are also permitted to enter into non-binding reciprocal referral agreements with other professionals pursuant to SCR 20:7.2(b)(4), and an agreement to post links may be in addition to such an agreement. If a referral is made pursuant to such an agreement, it must be disclosed and the informed consent of the client obtained.