Best Practices

Folly Beach Short-Term Rental Cap Overturned, Highlighting Legal Limits on Local Regulation

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This blog has discussed the limits of fractional ownership before. Short-term rentals continue to be a subject of controversy in South Carolina, particularly in the communities surrounding Charleston. Recently, this blog discussed the Court of Appeals decision overturning a Sullivans Island zoning determination that fractional ownership structures violated the Town’s limitation on vacation rentals.  Now, a Circuit Court judge in Charleston County has invalidated Folly Beach’s referendum enacted short-term rental cap.  

The ordinance at issue originated in an unusual way. In 2022, Folly Beach City Council rejected a proposal that would have capped the number of short-term rentals within the city. Supporters of the proposal turned to South Carolina’s initiative and referendum process and eventually submitted a petition seeking adoption of substantially the same restrictions. After City Council declined to adopt the ordinance a second time, the matter was placed before the town’s voters and narrowly passed by referendum.

The ordinance placed a hard cap on the number of short-term rental licenses the town could issue to properties that were not the primary residence of the owners. Because property owners with existing licenses in good standing were grandfathered in under the ordinance, the effect of the ordinance was that no new licenses could be issued until the number of licenses dipped below the hard cap of 800. 

The challenger to the statute was an owner with an existing license that the City determined was not in good standing to be renewed. The owner challenged the ordinance on the ground that the ordinance was unconstitutionally enacted through the referendum process.

Although the stated goal of the ordinance was to regulate the number of short-term rentals, the Circuit Judge found that the effect of the ordinance was to limit the City’s authority to issue short-term rental business licenses. Because a business license fee is treated under South Carolina law as a tax, the court concluded that the ordinance was not lawfully enacted, because South Carolina’s expressly prohibits initiatives that appropriate money or authorize the levy of taxes.

The court found that the ordinance defined when the City could issue business licenses and collect the corresponding business license taxes. Reasoning that giving voters the option to restrict the City’s ability to levy taxes and fees by referendum would undermine the ability of elected bodies to maintain control over municipal revenues. The Court therefore ruled that the short-term rental cap provisions are void.

The Town will appeal the Court’s ruling and separately has voted to place a six-month moratorium on the issuance of new short-term rental licenses while it studies the issue further and considers repealing and replacing the short-term rental ordinance with something new.

 This case is another reminder of the difficulties faced by towns where there is a substantial tourism industry where it comes to short-term rentals. In most places, there is significant support behind both sides of the issue and while there seems to be a great deal of energy behind those citizens who would seek to limit the impact of short-term rentals on their communities, motivated investors and owners of vacation homes seem equally motivated to defend their property rights.

The controversy is a good reminder that restrictions on the use of property must be implemented through legally authorized governmental processes and that there is a perhaps equal number of motivated investor owners who will ask the courts to be the ultimate referee.

The 2026 ALTA Survey Standards Are Here

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What South Carolina Real Estate Attorneys Need to Know

As of February 23, 2026, the 2026 ALTA/NSPS Minimum Standard Detail Requirements for Land Title Surveys officially replaced the 2021 standards. These updates may appear technical at first glance, but for South Carolina real estate attorneys—particularly those handling commercial transactions, development work, and lender representation—the changes carry meaningful legal and practical consequences.

The 2026 Standards reflect evolving technology, shifting risk allocation, and mounting expectations from title insurers and lenders. Attorneys who understand these changes will be better positioned to manage risk, avoid closing delays, and advise clients with confidence.

In South Carolina, ALTA/NSPS Land Title Surveys are a cornerstone of development due diligence, commercial financing and title insurance underwriting. While surveyors perform the fieldwork, attorneys are often the gatekeepers—reviewing surveys for compliance, identifying red flags, and reconciling survey matters with title commitments.

Any change to the ALTA Standards therefore ripples directly into:

  • Title objection and resolution strategies
  • Closing timelines
  • Survey exceptions and endorsements
  • Risk allocation among buyers, lenders, and insurers

The 2026 Standards were jointly adopted by ALTA and the National Society of Professional Surveyors (NSPS) in October 2025 after several years of committee work, with the stated goal of improving clarity, consistency, and adaptability.

A Clear Effective Date—with Transitional Traps

The effective date for the new standards is February 23, 2026. Any ALTA/NSPS Land Title Survey contracted for on or after that date must comply with the 2026 Standards unless the parties agree otherwise in writing. Surveys contracted before the effective date may still be governed by the 2021 Standards, even if completed later—but only if that is clearly addressed in the engagement agreement.

For attorneys, this means:

  • Engagement letters and contracts should specify which ALTA standard applies
  • “Survey updates” or revised plats may trigger new standard requirements
  • Ambiguity can expose clients—and counsel—to disputes with lenders or insurers

Technology Is Now Explicitly Embraced

One of the most forward‑looking changes is the shift from requiring information obtained strictly “on the ground” to allowing “practices generally recognized as acceptable” in both fieldwork and mapping. This expressly accommodates modern tools such as drones, LiDAR (Light Detection and Ranging), and other remote‑sensing technologies, without tying the standards to any specific method.  

For attorneys, this reinforces the need to:

  • Review surveys for completeness, not methodology
  • Understand that aerial or remote data may now support certain depictions
  • Counsel clients that innovation alone is not grounds for objection

Expanded Documentation of Possession and Occupation

Perhaps the most practically significant change is the requirement that evidence of possession or occupation be noted along the entire perimeter of the property, regardless of proximity to boundary lines. This exceeds prior standards, which often focused only on near‑boundary features.

This change:

  • Increases the likelihood that surveys will reveal fence lines, uses, or improvements suggesting potential boundary or prescriptive issues
  • Elevates the importance of attorney review and follow‑up
  • May increase survey‑related title objections and negotiation

Parol Statements Must Be Noted

Closely tied to evidence of possession and occupation, under the 2026 Standards, surveyors must note any verbal (“parol”) statements made by landowners or occupants relating to title or boundary issues.

For attorneys, this is a double‑edged sword:

  • It may surface issues earlier in the transaction
  • It also introduces non‑record information that may complicate underwriting, disclosures, and risk tolerance

These notations do not constitute legal opinions, but they should never be ignored during diligence.

Title Evidence and Research Responsibilities Are Clarified

The 2026 Standards expand guidance on how surveyors source title evidence when a current title commitment is unavailable, and they more clearly acknowledge shared responsibility between surveyors and title professionals for obtaining certain documents.

South Carolina attorneys should:

  • Provide current title commitments early whenever possible
  • Clearly communicate expectations regarding easement depiction
  • Coordinate closely with surveyors on complex tracts or non‑fee interests

Table A Gets a Notable Update

The optional Table A items remain a critical tool for tailoring survey scope. In 2026:

  • Item 15 was clarified to allow certain depictions via aerial or satellite imagery if agreed to in writing
  • A new Item 20 requires a summary table of conditions and potential encroachments on the face of the survey—intended as a factual summary, not a legal conclusion
  • The former “catch‑all” or blank item has been renumbered as Item 21

Attorneys should carefully align Table A selections with lender and client expectations.

Practice Takeaways for South Carolina Real Estate Attorneys

The 2026 Standards raise the bar—not by radical change, but by greater disclosure and clearer expectations. Attorneys should update internal checklists, educate clients, and adjust survey review practices accordingly.

FNF challenges FinCEN Rule and ALTA concurs

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In our previous blog entry, Jennifer Stone did a great job of summarizing FinCEN’s new Anti-Money Laundering Rule that is scheduled to go into effect as of December 1, 2025. In short, the Rule will generally require South Carolina real estate attorneys to make reports to FinCEN concerning every residential (1-4 Family property) transaction where 1) the grantee is an entity or trust and 2) there is no financing provided by a lender that is subject to federal anti-money laundering reporting obligations. 

The closing attorney will be on the hook (under threat of civil and criminal liability) to collect extensive information from the parties to the transaction, including the names and addresses of every person or entity who has a beneficial interest in or control over the grantee entity. Generally speaking, the collection of information is well outside the scope of the usual real estate closing and places the burden on attorneys and title companies to collect information from third parties who may not be willing to share that information.

However, there is still the possibility that the Rule will not go into effect as scheduled in December. This past May, Fidelity National Financial, Inc. (“FNF”), the parent corporation of Chicago Title, filed suit in federal court challenging the Rule and thereby taking the lead role in speaking up on behalf of attorneys and title agents in advocating for more measured, less burdensome requirements and reporting.

In the lawsuit, FNF has requested an injunction suspending FinCEN’s enforcement of the Rule. A hearing is currently scheduled to be heard on September 30, 2025.

FNF also filed a Motion for Summary Judgment to which the American Land Title Association (ALTA) recently expressed its support by filing an amicus brief. ALTA, of course, is the most prominent trade association of title insurance companies and title agents in the United States.

While FinCEN asserts that the cost to the title industry (including closing attorneys) of meeting the reporting requirements could reach as high as $600 million annually, ALTA’s brief argues that FinCEN has significantly underestimated the training and collection time necessary to comply and that the true cost to the industry will be significantly higher. ALTA argues that the this significant burden cannot possibly be outweighed by the corresponding benefit to law enforcement. ALTA points out that FinCEN drastically reduced the scope of the reporting of Beneficial Ownership Information (BOI) under the Corporate Transparency Act (which we wrote about here) in part because the new administration believed that reporting on American formed entities was of limited value to law enforcement.

ALTA further argues that the reporting burden under the Rule will disproportionately fall on small businesses that are “ill equipped” to absorb the additional costs and regulatory burden of reporting in an industry with already thin margins. I think many South Carolina residential real attorneys with already thinly stretched teams would agree wholeheartedly with ALTA in that statement. 

Certainly, there are quite a few miles to go with this lawsuit before a final verdict is rendered concerning the new Rule. We will continue to keep an eye on the progress of this case, but for now South Carolina attorneys must continue to develop procedures for complying with this Rule when it goes lives on December 1. 

How do mail away closings work in light of In re Lester*?

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A reader posed this question to me

A recent blog about a South Carolina Supreme Court amendment to a comment following our UPL rule contained the following paragraph:

“Remember that our Supreme Court adamantly told us in In re Lester* that a lawyer must be physically present for a closing. Prior to Lester, a closing attorney might be on vacation and available by telephone to answer closing questions. Lester called a halt to that practice.”

A reader responded, “Claire, can you clarify the effects of In Re Lester on ‘mail away’ closings?” This is such a great question, and I responded that I would answer with a new blog. This is that blog!

In the South Carolina Bar’s publication, Handbook for South Carolina Dirt Lawyers, I included the following discussion of mail-away closings.

“Attorneys in resort areas have done “mail away” closings routinely for years. Titles are examined, closing packages are prepared and mailed to a remote location for signatures. Recent South Carolina Supreme Court disciplinary cases requiring attorneys to be present at closings have caused some attorneys to question whether mail away closings can be done ethically by South Carolina attorneys.

The Supreme Court has not addressed this issue specifically, so no one knows the answer to this question. However, in a seminar in 2005, a lawyer from the Office of Disciplinary Counsel was asked whether an attorney can ethically handle a closing by mail.

He responded that it was his opinion that the attorney should:

           •     Schedule a closing date, time and place;

           •     Advise the clients that they should attend the closing;

           •     Advise the clients that the attorney will be able to provide better representation if the clients attend the closing; and

           •     Require the clients to sign a document indicating they received the foregoing advice but chose not to attend the closing.

Another speaker at the seminar suggested that he would only handle mail away closings if the clients agreed to meet with a lawyer in the clients’ location to execute the documents.

On September 16, 2005, we received a more formal opinion in the form of Ethics Advisory Opinion 05-16. This opinion states that an attorney may ethically conduct a real estate closing by mail as long as it is done in a way that:  (1) ensures that the attorney is providing competent representation to the client; (2) all aspects of the closing remain under the supervision of an attorney;  and (3) the attorney complies with the duty to communicate with the client, so as to maintain the attorney-client relationship and be in a position to explain and answer any questions about the documents sent to the client for signature. To meet this test, according to the opinion, clients must have reasonable means to be in contact with the attorney, by telephone, facsimile, or electronic transmission.

The Opinion states that there is no legal requirement that a client attend the closing, but it must be the client’s decision not to attend the closing. The Opinion acknowledges today’s climate by this statement: “Given today’s technological advances in communications and funds transfer, to require a client living in one part of the country to attend a closing against the client’s own wishes is both unnecessary and punitive.” The Opinion makes the point that the duties of the attorney do not change when the closing is accomplished by mail in this statement: “The prudent attorney will conduct closings by mail in such a fashion that the client is fully informed and properly advised, that the client has a reasonable means to consult with the attorney, and that all personnel assisting the attorney are properly supervised.”

South Carolina closing attorneys are relieved to have this authority and appreciative of the efforts of the South Carolina Bar Ethics Advisory Committee.”

Of course, technology has drastically changed since these words were written, but the legal issues have not. A dirt lawyer can certainly handle mail away closings ethically. But dirt lawyers must still practice law in connection with those closings.

Please feel free to make comments and ask questions about these blogs!

*353 S.C. 246, 578 S.E. 2d 7 (2003).

Cybersecurity Breach affects SC county offices

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Chicago Title’s South Carolina state office sent out a memorandum on December 29 announcing that Cott Systems, Inc. has suffered a cybersecurity breach. I wanted to make sure the readers of this blog have access to this important information.

Cott Systems provides many services to county offices, including electronic recording, record storage, online searching, and court case management. Chicago Title has been told that Cott Systems provides services to at least the following counties: Darlington, Florence, Marlboro, Oconee, and Union. Other counties may be involved.

Apparently, this company took its services offline upon discovery of the breach. As of December 29, the company was unable to estimate when service may be restored but reported that it is working diligently to address the problem. As of mid-day on January 4, we were told that at least two counties were back online. I hope all of them are up and running at this point.  

If title abstracting and recording services are ever unavailable in the counties where you do business, please contact your title insurance company for assistance. Your friendly underwriters should be able to talk with you to resolve your issues, depending on the dates of your prior title work, dates of closings, etc.  Please be careful out there!

Happy New Year!

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Let’s make 2023 a great year!

2022 has been a difficult year for lots of dirt lawyers and their staff members. Everyone has been way too busy! 2023 promises to be a little slower. I remember my first slow-down in private practice many years ago. I was panicking a little, and my senior partner advised me to take a breath, clean up my desk and old files, and by the time I was through, the economy would have improved. He was right! And I have given that same advice to many people, including my now adult children, many times through the years.

Abraham Lincoln said, “Most folks are as happy as they make up their minds to be.”  My guess is that he used the qualifier “most” because he recognized that outside forces might lead to unhappiness for some people, but I couldn’t agree more with our 16th president that happiness is usually a matter of choice.

Here in the Bible belt of the South, some may believe that faith leads to happiness, but experience suggests that people of faith don’t always choose happiness. Experience also suggests that affluence does not create happiness. In fact, it seems that the opposite may be true in many instances.

I write this blog* for South Carolina real estate lawyers and their staff members, and my goal is to keep us all up to date on real estate issues that may affect our practices.

Early in my career, I decided to focus on real estate law because I chose happiness. I found real estate law to be a happier choice than litigation, especially the domestic litigation I tried for about five minutes. If the economy is good, then everyone should be satisfied at the end of the closing process. The seller should walk away with funds. The buyer should have a new piece of real estate to inhabit, rent or develop. The lender should have a nice income stream. And the players in the marketplace should be paid fairly for their services in connection with the closing.

Those of us who weathered the recent real estate peak are well aware that practicing real estate law does not lead to similar happiness when things are moving too quickly and fraud is so prevalent that it is hard to catch our collective breath. Kudos to all who have survived this challenging season.

Another realization I made early in my career is that to make money, lawyers must work very hard, often at a speed and pressure that do not benefit their health and happiness. And if lawyers have to work under those circumstances, then their staff members do as well.

So how do we choose happiness in a pressure-filled real estate practice that is dependent on the economy?

I offer Jon Gordon’s “20 Tips for a Positive New Year” as a suggestion. Jon Gordon is a motivational business speaker I enjoy following. Many of his tips for a positive 2023 focus on choosing to be happy. (But I particularly like his tip #8, “Get More Sleep”) You can download this excellent advice in poster format to keep at your desk or post in your workroom.

I am going to try to follow Abraham Lincoln’s and Jon Gordon’s advice in 2023. And I invite you to join me!

* Thanks to the readers of this blog! I began writing weekly very late in 2014. Readership has increased from just under 2,000 in 2014 to just over 40,000 in 2022. I’d like to take the opportunity of a new year to thank Martha McConnell and Jennifer Rubin, excellent lawyers, who help me with ideas, redirect my thinking, keep me out of trouble and proofread my work. And I’d like to thank Cris Hudson, IT guru extraordinaire, who handles technical issues. It is a team effort, and I am blessed with a great team!

What should you do when faced with a letter from the ODC?

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This disciplinary opinion clearly sets out what not to do!

I’ve blogged before about Mike Goodwin, the “Bow Tie Comedian” based here in Columbia, who entertained us during lunch at Chicago Title’s seminar several years ago. I highly recommend Mike if you need a comedian suitable for a family audience. A joke that bubbled up through his very funny presentation was a line his mother used to keep him on the straight and narrow during his childhood, “what you NOT gonna do is…..” 

For example, she would say, what you NOT gonna do is to stand there and hold that refrigerator door open while you try to decide what you want to eat. During one lull in the laughter, Mike said to us, “what you NOT gonna do is sit there and not laugh at my jokes.” (So we laughed.)

Mike’s tag line came to mind when I read a recent disciplinary case* involving a real estate lawyer. This lawyer did exactly what he should not have done when the ODC contacted him.

This lawyer had been previously disciplined for financial misconduct in 2011. In that case**, he was given a public reprimand. He did not learn from his mistake.

In 2016, a client gave the check in the amount of $8,969. Just prior to the deposit of this client’s check, the balance in the lawyer’s trust account was $0.15. The lawyer negotiated nine checks to himself totaling $365. Then he issued a check to the client’s seller in the amount of $8,969. This check was returned as unpaid for insufficient funds, and the bank notified the ODC. The client also filed a complaint with the ODC.

Later, he misappropriated trust funds by writing checks to himself in amounts totaling just over $8,000.

What did the lawyer do in response to the ODC? Nothing!

  • He failed to respond to notices of investigation, despite being served with reminder letters.
  • He failed to respond to the court-appointed receiver after he was placed on interim suspension.
  • He failed to cooperate with the receiver and failed to produce client files and trust account files after being ordered to do so.
  • He failed to file an answer to formal charges.
  • (The Court didn’t say this, but his worst mistake may have been failing to hire a lawyer experienced in disciplinary matters.)
  • He failed to appear at his hearing.
  • He failed to file a brief taking exception to the report issued subsequent to the hearing, thus accepting the findings of fact, conclusions of law, and recommendations.

The Court, siting the central purpose of the disciplinary process is to protect the public from unscrupulous and indifferent lawyers, disbarred the lawyer. Learn well from this lawyer’s lack of action!

*In the Matter of Griffin, South Carolina Supreme Court Opinion 28124 (December 14, 2022).

**In the Matter of Griffin, 393 S.C. 142, 711 S.E.2d 890 (2011).

Some (relatively) new scam tips

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If I told you how many articles I’ve written about fraud and scams, you’d think I’m much older than I am, so we won’t go there. But I am old enough to be retired. My husband and I both worked for large corporations who kept us current on scams of all kinds. In retirement, we must read numerous sources to make sure we keep ourselves safe online and otherwise.

The Washington Post, one of my favorite newspapers, published an article on September 6 entitled “Yes, it’s a scam; Simple tips to help you spot online fraud.” You can read it here.  

The first tip makes so much sense: “Have “the talk” with family members.” This is so important! Tell your aging parents, your teenagers who spend a considerable portion of their lives online, and everyone in between the tricks you learn from your practice and your title insurance company about safety online. As painful as it may be to assist your elderly family members with their computer issues, keeping them safe from scams will save you from having to unwind the problems. Tell your family members to come to you to “gut-check”, as the article advises, suspicious messages and phone calls.

The second tip involves social media. The article advises that privacy settings can make it significantly harder for cybercriminals to successfully target you and your family members. Read the article for the details.

The third tip is my mantra: stay current! Using current events for unjust enrichment is a prime strategy of scammers. The article reports that within 24 hours of President Biden’s announcement of the student loan forgiveness program, The Federal Trade Commission released a warning about student loan scams. Updates for all of us are available at Fraud.org, a project of the National Consumers League. Make one of your employees responsible for reviewing and reporting on the great information from that site. And make sure your family members know about it.

I love this one: “Assume that people or companies aren’t who they say they are.” As lawyers, we’re naturally and by education skeptical. Make sure those around you approach the internet and telephone as skeptically as you do.

This one is great: “Verify everything using a different channel.” Title insurance companies have been telling their agents for years (decades!) to verify wiring instructions by making a telephone call using a known and trusted telephone number. This advice can be used in other areas of online life. Use official customer service numbers and websites. Call your bank! Call or text a friend who asks for money via social media. The article advises the use of AARP’s free telephone service to ask about possible scams: 877-908-3360.

The article advises all of us to memorize the signs that something is a scam:

  • You didn’t initiate the conversation.
  • You won something.
  • You are panicked:  scammers want to create a sense of urgency.
  • It involves fast payment methods: peer to peer payment apps, for example.
  • There are payment complications. For example, the scammer will offer to pay over an app like Zelle, say there’s a problem, then ask for your email address so they can send a fake email to get your information.
  • They want information.
  • Something doesn’t feel right.

Stay current, keep your office current, and keep your family members current!

EAO Opinion 22-04 gives real estate lawyers guidance on non-negotiated checks

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How we did it back in the day

Ethics Advisory Opinion 22-04 addresses a trust accounting question from a real estate practitioner.

The underlying facts are: “Due to the nature of a residential real estate practice, Lawyer frequently issues relatively small dollar amount checks from Lawyer’s trust account to both clients and third parties. A number of these checks are not timely negotiated, resulting in ongoing trust accounting maintenance costs, including labor costs, stop-payment fees and mailing fees for uncashed trust account checks that require stop payments and/or reissuance and re-mailing to the payee.”

This is an age-old concern. When I was in private practice (150 years ago or so), our law firm’s excellent bookkeeper chastised me monthly about the $5.00 check issued for mortgage satisfactions that never seemed to get cashed.

The lawyer poses the following question to the Ethics Advisory Committee: “May Lawyer charge an amount to cover administrative costs associated with stop-payment fees and trust account check reissuance and re-mailing fees for checks that remain outstanding for more than thirty (30) days after issuance?”

Thankfully, the Committee responded affirmatively.

The opinion states that a lawyer may charge a check recipient an amount to cover administrative measures undertaken to resolve the outstanding check, which includes expenses incurred such as stop payment fees and postage fees, provided the amount charged is not unreasonable.

Comment 1 to Rule 1.5 provides, “A lawyer may seek reimbursement for the cost of services performed in-house…by charging an amount that reasonably reflects the cost incurred by the lawyer.” The Committee opined that the lawyer may charge an amount against the recipient’s check to obtain reimbursement for the same, provided the amount charged is not unreasonable. To collect on the amount charged, Lawyer may deduct the amount to be charged from funds that remain in trust after adequate steps have been taken to cancel, void, or otherwise nullify the previously issued check…”

The Committee imposed one limitation by stating that the amount to be charged is limited to the total amount of funds that were paid by the outstanding check.

This opinion may provide a small amount of assistance, but the administrative nightmare remains. Small checks that fail to be negotiated will remain a monthly quagmire. But this opinion may allow law firms to at least recoup a portion of the cost.

Ethics Advisory Opinion advises lawyers: stay away from Expertise.com

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Ethics Advisory Opinion 22-02 fielded two marketing questions from a lawyer concerning a website, Expertise.com. This website finds and reviews service professionals and states that it researches businesses by using customer referrals, public records, accreditations and licenses and mystery shoppers.

Some law firms are listed on the site without the knowledge of the lawyers through the site’s unilateral research and screening. The site states that it lists businesses alphabetically, but it allows law firms to submit to be reviewed and included at no cost. The site indicates this process takes approximately one year to complete.  A law firm can also purchase a “featured placement” to take advantage of being seen first on the website page and to include links to the law firm’s social media.

The lawyer’s questions were:

  1. If an attorney or law firm pays for a featured placement on Expertise.com, does that attorney violate Rule 7.4(b) by holding the law firm and its attorneys out as experts by virtue of the website’s name?

2. Does paying for a featured placement on Expertise.com violate Rule 7.2(c)?

The Ethics Advisory Committee responded definitely: “Lawyer may not participate in any way in marketing via Expertise.com.” Actively participating in an online business listing at a website whose stock language violates the advertising rules is itself a violation of the advertising rules, according to the Committee.

The Committee referred to an earlier EAO: 09-10 which opined that a lawyer who adopts, endorses, or claims an online directory listing takes responsibility under the Rules for all content of the listing and general content of the directory itself, regardless of who created the material. While the prior opinion focused on comparative language contained in client testimonials and endorsements submitted to the website, the reasoning applies to content created by the host that violates some other rule, like 7.4(b), according to the current EAO.

Regardless of the creator of the offending content and regardless of which rule it violates, the Committee’s view is that a lawyer may not adopt, endorse, claim, or contribute to any online listing that contains language or other material that would violate the Rules if created and disseminated directly by the lawyer.

Paying for a featured placement within a business directory website is not itself a violation of Rule 7.2(c) if the payment obligation or amount is not tied to the referral of business as a quid pro quo, according to the EAO. In the Committee’s view, if a featured placement is the only benefit received in exchange, the payment would be a “reasonable cost of advertisement” under the 7.2(c)(1) exception.

However, the Committee believes a lawyer may not pay Expertise.com for a featured placement because that step would be prohibited by Rule 7.4(b).

Be careful out there, lawyers!