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THE VIEWS EXPRESSED HEREIN ARE SOLELY FOR THE PURPOSE OF DIALOGUE. THE POSITIONS HAVE NOT BEEN APPROVED OR ENDORSED BY THE COMMISSION ON ADVERTISING, THE HOUSE OF DELEGATES, THE BOARD OF GOVERNORS NOR ANY OTHER ENTITY OF THE AMERICAN BAR ASSOCIATION. ACCORDINGLY, THE MATERIAL CONTAINED IN THIS PAPER ARE NOT THE POLICIES OF THE AMERICAN BAR ASSOCIATION.
The Model Rules of Professional Conduct were promulgated by the American Bar Association in 1983. 1 The rules comprehensively address client development endeavors undertaken by lawyers, however, they were drafted more than a decade before the widespread use of the Internet as a tool for marketing legal services. 2 State ethics opinions reflect the initial analysis of the policies governing client development through technologies such as the World Wide Web and e-mail, concluding that the state iterations of the rules are applicable to these endeavors. However, the policy-makers have not yet thoroughly considered the unique aspects and capacities of emerging technologies as they are applied to client development. Nor have they considered whether the limitations which the application of current rules place on the use of new technologies are constitutional. Therefore, the guidance given to practicing lawyers is derived from rules that were developed for and intended to apply to other media, which may be both inapplicable to the new technologies and constitutionally infirm.
Given the widespread use of the Internet to market legal services, lawyers need direction on the ethical propriety of these activities. The application of current ethics rules to new technologies often results in an imperfect fit and leaves many questions about the nature of specific communication tools. 3 Therefore, policy-makers need to analyze the application of the rules. This analysis should include the following: an examination of the purposes and justifications for the current rules; the unique quantitative and qualitative features of client development through emerging technologies; and the constitutional limits of the application of current or proposed alternative rules as they are applied to the communications of legal services through new technologies.
To properly consider an analysis of the specific provisions of the ABA Model Rules and their applications to client development issues through emerging technologies, information relating to the underlying rules themselves must be explored. It is important to understand the history and current status of these rules, the justifications for rules of ethics, the case law determining the constitutionality of restrictions on lawyer advertising and solicitation and the structure of the Internet and its components. With an understanding of these fundamentals, policy-makers can better assess the scope of the ethics provisions and their application, along with the ways in which the rules should be reconsidered and reformulated to respond to client development through recent technology.
In 1983, at a time when several states were still in the process of formulating rules to govern lawyer advertising, the ABA completely revamped its rules of ethics. The Model Rules of Professional Conduct replaced the Model Code as the national standards which states were urged to adopt. The Model Rules departed from the Code in format and substance. Instead of the Code's two-tiered ethical considerations (EC's) and disciplinary rules (DR's), the Model Rules had one set of standards. The Rules are similar to the DR's in that they set the floor of minimally acceptable conduct. Any action falling below the standards set in the Rules subjects the lawyer to discipline.
As a matter of process, the timing of the Model Rules led to substantial diversity among the states for those standards governing lawyer advertising. States were first called upon to change their rules after the Bates decision in 1977 to bring them into compliance with that case. Then, in 1983, the ABA urged the states to completely revise their ethics rules and switch over to the Model Rules of Professional Conduct. Since 1983, forty-one states have adopted the Model Rules.
However, most states have provisions within their rules applying to lawyer advertising which are distinct from the provisions of the Model Rules. Two factors further contributed to this result. First, the Model Rules that govern various aspects of lawyer advertising and solicitation have been found to be unconstitutional several times since the Bates decision. Of the 19 changes to the Model Rules from their adoption in 1983, six of them have been changes to the section which governs advertising and solicitation. 14 As a result, some states have altered their rules and some have not. 15 More significantly, however, several states have been dissatisfied with some or all provisions of the Model Rules that address communicating the availability of legal services. In 1990, Florida adopted a completely revised set of rules, which places greater limitations on both advertising and solicitation. 16 Several states followed the process of reviewing their rules, resulting in changes of the rules in ways that are tailored to the specific concerns of the various state jurisdictions. 17 Consequently, all states have some features of the provisions in the Model Rules that govern lawyer advertising and solicitation, but few states have the complete provisions verbatim.
This is the context in which lawyers have, in recent years, begun to advertise and solicit clients through the Internet.
There are two strangely interwoven justifications for the ethics rules of the legal profession: trade protection and consumer protection. A few rules are overt signs of trade protectionism, such as Model Rule 1.6(b)(2), which allows a lawyer to breach client confidentiality in order to collect fees. 18 However, the justification of the rules to serve trade protection relates to the fact that the legal profession is a monopoly to practice law. 19 In most states, it is illegal for those who are not lawyers to provide legal services. The issues of unauthorized practice are clouded by the inability to clearly define the practice of law. Consequently, real estate agents prepare contracts, bankers perform trust work and accountants do tax preparation. 20 Nevertheless, there are many functions that are exclusively the domain of licenced lawyers and the ethics rules perpetuate that exclusivity.
The rules that govern client development challenge the paradigm that gives credence to the monopoly of lawyers. The rules support the notion that the practice of law is a professional endeavor and not a business endeavor. Deeming itself to be a profession has served to separate the legal profession from all other businesses throughout the Twentieth Century and maintains the monopoly. 26 However, regulating the business-getting activities of lawyers in a way that recognizes the practice of law as a business argues against the legal profession as a public service that is distinct from the services offered by any other business. This philosophy fueled the ban on lawyer advertising for nearly seventy years. Consequently, the preservation of the paradigm of law as a profession, and the continuation of the legitimacy for the monopoly, tends to sustain a disdain for business practices within the law office and supports the tendency to use the ethics rules to restrict the endeavors inherent in marketing legal services.
This orientation creates the odd circumstance where the legal profession professes its dedication to public service, yet employs ethics rules that limit an individual's accessibility to legal services. This is done in order to distinguish the profession from those businesses that may provide overlapping services. While efforts to sustain the profession's monopoly may not be sufficient to justify the government's restrictions on First Amendment rights, as discussed below, the justification is far more likely to be constitutionally valid if the ethics restrictions are considered to be consumer protection.
As noted above, the 1977 U.S. Supreme Court decision Bates v. State Bar of Arizona was the landmark case lifting the state-by-state bans on lawyer advertising. Throughout the following 20 years, there have been seven U.S. Supreme Court cases that specifically address lawyer advertising and solicitation. In 1978, the Court decided two cases on in-person solicitation, which continued to be prohibited in the ethics provisions following Bates. In Ohralik v. Ohio State Bar Association, 29 the Court held that lawyers, who are trained in the art of persuasion, pose a risk of overreaching when they are allowed to solicit distressed or emotionally vulnerable potential clients in-person. The Court further held that the state has the right to ban lawyers from doing so when the solicitation is for pecuniary gain. In the companion case of In re Primus, 30 the Court held that in-person solicitation for public interest matters which did not involve pecuniary gain for the lawyers could not be banned.
In 1982, the Court decided, in In re R.M.J., 31 that a lawyer could send announcements which contained information beyond that listed by the state as permissible information. The state argued that the result could lead to consumer confusion and fear. The Court suggested an alternative requirement of labeling the envelope with the warning "This is an Advertisement." 32 As discussed below, this labeling requirement is found in the current edition of ABA Model Rule 7.3.
Three years later, the Court overruled a state provision that limited the use of illustrations to only a display of the scales of justice. In Zauderer v. Office of Disciplinary Counsel, 33the lawyer published a drawing of an IUD in a newspaper ad seeking clients who had been harmed by the Dalkon Shield. The Court stated that "the mere possibility that some members of the population might find advertising embarrassing or offensive cannot justify suppressing it. The same must hold true for advertising that some members of the bar might find beneath their dignity." 34 In the same case, the Court held that states could sanction lawyers who omitted information that rendered a statement as a whole to be false or misleading. 35 For example, if a lawyer advertises "No recovery -- No fee", yet charges costs of the case to the client regardless of recovery and fails to disclose that in the ad, that omission would make the statement as a whole misleading. This provision is now reflected in Model Rule 7.1(a).
The most recent Supreme Court case addressing client development is The Florida Bar v. Went For It, Inc. 42 A conservative block of the Court, lead by Justice O'Connor and joined by then newly appointed Justice Breyer, upheld a Florida restriction that requires lawyers to wait at least 30 days before writing potential clients to solicit personal injury or wrongful death representation. This decision narrows the holding in Shapero and suggests that direct mail to those who may be suffering trauma is more like in-person solicitation than print advertising.
In 1989, in Board of Trustees of State University of New York v. Fox, the Court concluded that there could almost always be a less restrictive means to advance a state interest and adjusted this last prong to that of a "reasonable fit." Thus, the regulation must be a reasonable fit that is "narrowly tailored to achieve the desired objective." 45 Known as the Central Hudson test, this criteria is the standard by which the constitutionality of restrictions on lawyer advertising are assessed.
The use of the Internet by lawyers has given rise to ethics opinions and case law that are illogical and not consistent with its nature and operations. 46 This is sometimes the result of misunderstanding its construction and unique aspects. To avoid policies and rules that are inconsistent with the nature of the Internet, policy-makers should be aware of its nature, in addition to having a sound understanding of the history, nature and constitutionality of ethics governing client development.
Second level domain names are those portions of the domain names to the left of the gTLD's. These second level domain names are selected by the Internet user and registered with InteNIC, through a contract with Network Solutions, Inc., which is authorized to carry out the registration function by an agreement with the National Science Foundation. The registrations are subject to limitations established by Network Solutions, including prohibitions on trademark infringements and previously assigned names. For the most part, however, the second level domain names are selected by the registrants.
These top level and second level domains are often combined with "www" for World Wide Web and "http" for hypertext transfer protocol, separated by colons, slashes and dots, to form a Uniform Resource Location or "URL." Thus a web site address, or URL, for the American Bar Association, for example, is http://www.abanet.org.
E-mail addresses are comprised of a selected reference, such as a version of the addressee's name separated by the "@" character, followed by the second level and top level domain names. Thus, an example of an e-mail address is whornsby@staff.abanet.org.
One of the important differences between e-mail and the World Wide Web is the method of accessing them. E-mail can be directed to a recipient without a request for the information. This uninvited so-called junk e-mail is known as spam. The Web on the other hand provides information which can only be accessed through a search of some type. Individuals can find web sites by going directly to the URL, if it is known. Alternatively, the sites can be accessed through search engines, using key words, or be accessed through hypertext links from other sites. Note, however, that e-mail and web sites are interactive with one another. Web sites permit threaded discussions that are carried out through e-mail, for example.
Web sites typically have home pages, or that part of the site that gives directions to the web site as a whole. It is important to note that the home page is one of the parts of a web and not a portal through which an Internet user must pass. Each segment of the web site has its own entrance and can be accessed through a URL, a key word or a link. There is no first page of a World Wide Web site.
Another dimension of a web site is its ability to include advertising within it, commonly known as banner ads. Banner ads can be merely messages or, more likely, links to sites of related businesses. Clicking on the banner usually links the Internet user to the site of the advertiser.
Use of the Internet as a tool for legal services marketing is a recent development that has seen considerable growth over the past three years. In November 1994, it was estimated that five law firms had web sites. Six months later, that figure was estimated to be 500 firms. 60 A 1997 ABA survey revealed that 98 percent of large law firms (those with 75 or more lawyers) offered Internet access to at least some members of the firm and 61 percent of the survey respondents indicated the firms used the Internet to market their practices. 61 Many lawyers with Internet access market their services without either a web site or banner ad of their own. For example, almost every lawyer is at least listed on-line through a directory service such as Martindale-Hubbell, which claims to post the names of 900,000 lawyers at its Internet site. 62 Lawyers also commonly market their services through participation in various forms of discussion groups.
the expanding and dynamic developments of new technologies and the interface of those technologies with existing technologies and other media and forms of client development.
ABA Model Rule 7.1 broadly addresses "communications about the lawyer or the lawyer's services." The comment to this rule, which bans false or misleading communications, begins "This Rule governs all communications about a lawyer's services, including advertising permitted by Rule 7.2." 64 While the rule is seemingly broad, it is probably not all encompassing.
There have been no opinions indicating the rules are inapplicable, so it may be assumed that a lawyer's use of the Internet invokes a requirement to comply with all ethics rules governing advertising and solicitation. However, two aspects of the state ethics opinions are worth noting. First, they are not binding authority, but merely the interpretations of various committees on ethics. Second, although most opinions are well-reasoned and persuasive, they are responsive to specific questions submitted by lawyers. Therefore, the answer to the question, "May I advertise on the Internet," can easily lead to the conclusion that a lawyer must comply with the rules if he or she does advertise on the Internet. But that is different from the broad question of when the rules do or do not apply to the lawyer's use of the Internet as a client development tool.
Since the First Amendment protections given to lawyer advertising and solicitation stem from the constitutional doctrine of commercial free speech, the regulations that impose limitations on commercial speech are limited to speech of that type. Therefore, if a lawyer pursues client development endeavors in ways that do not amount to commercial speech, those endeavors are not subject to the ethics rules which otherwise apply to lawyer advertising and solicitation.
The distinction between commercial and noncommercial speech also gives rise to the informational home page. An example of a noncommercial lawyer's web site is found at http://home.att.net/~j.mccauley/, entitled James McCauley's Home Page: A Lawyer's Web site. McCauley is Ethics Counsel for the Virginia State Bar. The site includes information about his family, his hobbies and legal ethics, with links to articles, rules and opinions.
If Internet-based client development is clearly commercial, the rules apply. If it is clearly non- commercial, they do not. Although it is sometime difficult to determine whether speech is commercial or not and the standard for reaching that decision is not clear, the determination is even more complex if commercial speech is intertwined with non-commercial speech.
Applying the issue of intertwined speech to a lawyer's web site, portions of the site may "propose a commercial transaction," with phrases indicating the firm's availability and biographies of the firm members. Other parts of the site, conversely, may be purely informational and noncommercial, such as newsletters or articles written by lawyers in the firm. Those aspects that are not commercial are unlikely to elevate those which are to full First Amendment protection as long as the information can be segmented. The nature of a web site suggests that segmentation is possible (i.e. the speech is not inextricably intertwined) and, therefore, the rules are most likely to apply to the content of the site as a whole.
The Model Rules could be modified to reduce confusion about the application of the rules to commercial or noncommercial speech. As noted above, Rule 7.1 addresses "information about the lawyer and the lawyer's services." The scope of this language suggests that it includes that which is solely informational and therefore arguably includes speech which is noncommercial. If Rule 7.1 merely deleted the reference to information about the lawyer and retained the provision regarding information about the lawyer's services, it would provide some degree of clarity to this situation. Lawyers would have additional clarity and direction if the comment to the rule explicitly addressed the dichotomy between commercial and noncommercial speech, defined commercial speech and applied a standard for intertwined speech, indicating that if it is inextricably intertwined, it will enjoy full First Amendment protection, but if it is merely intertwined, the entire communication will be regulated as commercial speech.
Finally, the revision to narrow the scope of application of section seven is consistent with the need for the profession to maintain its monopoly. If lawyers understand that they can participate in client development in ways that establish their expertise and distinguish their services, they will meet a dual objective of getting business with less hucksterism and, at the same time, differentiate their services from those of other nonlawyer service providers.
Virtually every state includes these provisions in their ethics rules, although some states have additional provisions deemed to be false or misleading, which are, therefore, banned. 80 Many lawyers take for granted that they should not, and do not, advertise in ways that are false or misleading. 81 However, an examination of Rule 7.1 shows that it is far more restrictive than other provisions governing consumer protection such as those statutes applicable to the transactions of goods and other services. 82 The state consumer protection statutes typically center on and are limited to prohibitions of advertising that contain material misrepresentations and omissions that do not avoid the creation of misrepresentations, in other words, provisions comparable to the first two standards of Model Rule 7.1. However, the puffery, which is often a whimsical feature of that product advertising which relies on exaggeration, is strictly eliminated from the parameters of legal services marketing.
The philosophy reflected in the strict definitions of false or misleading currently applied to the legal profession is that which allows the conveyance of information, but limits promotion. The underlying concept rejects the notion of routine legal services and concludes that each case, each client and each set of facts are unique, as are the services which the lawyer provides. This concept allows the profession to differentiate itself from competing professions and, therefore, sustains the monopoly.
As noted above, the Supreme Court has held that speech which is false or misleading is not entitled to First Amendment protection. Furthermore, states have the right to ban such communications. In the constitutional analysis of lawyer advertising, a question that remains to be answered is whether, or to what extent, a state may deem something to be false or misleading. For example, some states prohibit the use of testimonials in lawyer advertising, declaring them to be false or misleading. 83 The comment to Model Rule 7.1 indicates that "client endorsements" are "ordinarily" a violation of 7.1(b), which prohibits a lawyer from creating unjustified expectations. But are prohibitions against testimonials or endorsements constitutional merely because the state defines them to be false or misleading?
Questions about the constitutional validity of the bans on certain statements, such as unjustified expectations and unsubstantiated comparisons as false or misleading, are accentuated by the use of cyberspace as a medium for client development. Some aspects of Internet use are analogous to marketing through print or broadcast media, while other aspects are unique to cyberspace.
For instance, as with the development of a firm brochure, yellow pages ad or television commercial, a lawyer seeking business through the Internet risks violating the state counterparts to Model Rule 7.1 through the misuse of words and phrases. Inappropriate terms are typically those that tend to be promotional. However, violations of Rule 7.1 occur regardless of intent. Therefore, a lawyer who inadvertently includes the wrong words violates the rule just as much as the lawyer who intentionally promotes a practice with a deceptive campaign. The distinction is then left to discretionary enforcement by those responsible for prosecuting disciplinary actions.
Terms that violate Model Rules 7.1(b), by creating unjustified expectations, and (c), by providing unsubstantiated comparisons, are common in all types of client development literature. In fact, they are extremely common in Web sites for large law firms focused on attracting corporate clients. 84 This may be due to a number of factors, such as a sense that the firm is dignified and professional and therefore ethical. Alternatively, firms may believe that they do not "advertise" and therefore, the "advertising rules" do not apply to them. Nevertheless, the members of the firms are in technical violation of the rules and, consequently, subject to disciplinary action.
For those circumstances where client development in cyberspace is like other media, lawyers have some direction and guidance based on cases and opinions that have been generated by past activities in those other media. However, there are many ways in which client development through the Internet is unique and untested. The ability to assess future applications of the rules and guide lawyers through compliance is more difficult in these situations and leads to a greater need for policy-makers to consider the application or alternation of the rules.
Client development for legal services through the Internet differs from other media in ways that are both quantitative and qualitative. The quantitative dimensions of the Internet create certain unique features that should be considered in reference to false or misleading communications. Compared to other media, the cost and expense of client development through the Internet is extremely reasonable. The cost of developing a lavish web site is frequently less than the annual cost of a full-page ad in an urban telephone directory or an attractive firm brochure. In some cases, web sites are little more than the expense of an expanded listing in Martindale-Hubbell. Some lawyers even develop their own web sites with the help and direction of over-the-counter software, short workshops or on-line resources.
One of the risks of the limited expense of developing web sites is the ease with which a firm may appear to be something more than it is. The physical aspects of a law office allow a potential client to judge the scope of the firm. Is the office comprised of a small suite, the floor of an office building or the entire building? Are there several branches? Are there many lawyers listed on the letterhead? An ambitious web site, however, may deceive the potential client into a belief the firm has greater resources and a broader capacity for services than it actually does.
The Internet is unlike other forms of advertising in that the space used for the promotion is not incrementally more expensive as it expands. While more space in print ads and longer time in radio and television commercials increase the costs of the advertising, tending to cap the amount of information that is conveyed, the amount of text available on a web site is far more extensive. While this should reduce the likelihood that a deception will result from an omission, lawyers who market their services through the Internet are challenged by the need to review far more material for compliance.
The Internet also quantitatively differs from client development through other media in the ease by which the information can be changed. Once a yellow pages ad is printed, it will circulate in that form for at least a year. Printed material is inalterable and can only be replaced. Similarly, broadcast material must be edited to be changed. However, changing web sites is fast and relatively inexpensive. For practitioners, this creates obligations and opportunities. Information on a web site may become out-of-date. Material that was accurate when first posted may become deceptive as a result of further developments. For example, a firm may post information about a case which is then overturned on appeal. Retaining the information about the lower court decision, and the firm's credit for the results, could become misleading in violation of Rule 7.1. Similarly, a firm could be subject to criticism if it posts information about services which it no longer offers, office hours that have changed, or fee arrangements which are no longer honored. There should be an expectation that web site material will be altered quickly in ways that accurately reflect the changes.
While URL's and domain names are like street addresses or telephone numbers that serve the primary function of locating the individual or web site material, they are unique in that they are selected by the user and are not constrained by a set limit of characters. This allows a lawyer to select a name that conveys a message. This is analogous to a law firm using a telephone number that identifies the firm's practice area, such as 1-800-DIVORCE. However, because of the varying number of characters that are involved, names allow far greater latitude in the selection of a message. Lawyers could have an email address such as darn-good-lawyer@smithlaw.com, never_lost_a_case@abc.com or big_money_4_U@weh.com. Similar constructions could be used for URL addresses directing people to home pages. Of course, each of these examples would violate provisions of Model Rule 7.1.
While the propriety of selected URL's and domain names can be judged on their face, other unique features of client development on the Internet cannot. For example, web site designers can take measures to create a priority placement on search engines 91 through the use of repetitive phrases, meta tags and invisible ink. When a consumer attempts to locate a lawyer through the Internet and does not know a firm's URL, he or she will most likely go to one of several search engines that are designed to perform key word searches of all those pages of the Internet that are registered with that search engine. Although a search may result in tens of thousands or even hundreds of thousands of sources which match to the key words, the screen will typically only show ten or so at a time. The consumer can go forward to additional screens, but will generally proceed from the beginning of the listing, much like consumers do when faced with a list of lawyers in the yellow pages. As with yellow pages, a lawyer with a home page that appears at the beginning of the list from a search engine's search has a competitive advantage.
Search engines identify sites mechanically by the words that appear in the html language used to code the contents of the site. Consequently, if a lawyer's home page has repetitive words or phrases that correspond to those words or phrases used by the consumer to do a search, that web site will appear at or near the top of the resulting search. Potential clients may search common phrases such as "drunk driving" or "car accident" as well as simple, legal terms such as "divorce" or "bankruptcy." Words or phrases such as these can be embedded into the html language in one of three ways. The words can be within the site itself, interspersed as part of the text or, sometimes, listed as a block at the end of the page. This latter technique is confusing to viewers, looks out of place and is seldom used in sites promoting legal services.
Secondly, the words and phrases can be embedded as meta tags. Meta tags are the words and phrases that are inserted into the coded html language in a way that does not make them appear on the home page itself. While not visually appearing on the home page, meta tags key search engines to include the page for searches having those words. Meta tags can be seen by calling up the html language. A viewer can click on "view" and then click on "source." An example of meta tags is found at the home page of the highly regarded law firm Kutak Rock. 92 Go to http://www.kutakrock.com. Go to "view" and then "source." The html language appears, showing meta tags for words including "law," "legal," "intellectual," "property," "blue," "sky," "litigation," and "tax."
Since meta tags are not readily seen, they are reminiscent of subliminal messages that may induce someone to do something they would not otherwise do. Because of this, there may be a temptation to condemn them. However, even though meta tags are hidden, they do nothing more than compete for search engine placement. As a result, their propriety should be determined on their content and consequence. For example, if a potential clients does not know a firm's URL and might search for it by the firm's name, there is no reason to ban that firm from using its own name in meta tags that will help give it priority when the potential client seeks it out through a search engine. Neither the content of using your own name nor the consequence of having your firm emerge at the top of a search would be improper. Similarly, if a law firm is dedicated to providing services in only a specific area of law, such as intellectual property or workers compensation, is there cause to limit it from using words associated with the field of law as meta tags?
On the other hand, if a law firm were to create meta tags with the name of another law firm that may be used as key words in a search or lists practice areas in which it is not competent in its meta tags, those communications would probably be deemed false or misleading. It is not, however, the hidden nature of meta tags that create a misleading representation, it is the content of those words and phrases within the context of the law practice.
Invisible ink is more problematic than either listing key words and phrases visibly on the site or using meta tags, which are revealed through its source code. Invisible ink is the placement of words on a background with the same color as the background so that they are not visible. The effect of creating priorities from key word searches on search engines is the same as having visible words or meta tags. However, the words can only be viewed by an examination of the html coded language. These codes are more difficult to find within that language than meta tags, although they can be seen. Note that the various search engines may be designed to avoid the use of meta tags or repetitious words intended to create a priority placement. However, lawyers who wish to seek such priority placements can research the search methods of the search engines and structure their web sites in ways that will benefit their positions. This obviously challenges the ability to enforce violations of misleading representations and may call for a different regulatory need.
A third way in which client development of legal services is unique on the Internet is through the use of links. Links are an integral feature of the web component of the World Wide Web. While a web site can be accessed directly through its URL, or indirectly through the key word search of a search engine, it can also be accessed through a link from any other linking site. Likewise, a law firm's site can provide links to other sites, such as the home pages of representative clients or legal resources. Links are done with a click of the mouse and usually access is no more difficult than going to another page of the same web site. A primary question about the use of links is the extent to which a lawyer is responsible for the content of the linked information. Consider, for example, a link to a client's page which includes information extolling the quality of the firm's services in a way that the firm could not do directly. Suppose the client material states something like the following "we've worked with lots of law firms, but none have demonstrated the quality of Smith & Doe." This type of endorsement is within the client's constitutional rights of free speech, just as it would be if the client made the statement in any other type of media. However, if the law firm then uses the endorsement in its own promotional materials, it would result in the comparison of the firm's services to those of others without factual substantiation in violation of Model Rule 7.1(c). Additionally, a communication to this effect could also create an unjustified expectation in violation of Model Rule 7.1(b). The question is whether the link brings the content within the commercial speech of the law firm and subjects it to the rules, resulting, in this example, in a violation. If a lawyer is responsible for the content of the links, the burden of review becomes enormous, which in turn limits the lawyer's ability to link to other sites.
If a lawyer is not responsible for the content of links, lawyers would be able to provide their potential clients with information, through the links, that would be impermissible for them to do directly. The procedure to access such information is no more difficult than if the information were provided directly by the firm. In short, firms would have a convenient loophole by which they could avoid the rules. If this avoidance technique is coupled with an endorsement about the services, such as that illustrated above, could a lawyer also link to a client who states the firm is the least expensive in the area, even though the lawyer knows the firm is not?
Domain names, meta tags and links create some of the most obvious dilemmas that are unique to the regulation of the Internet as a tool for client development for legal services. However, there are a host of more technologically complex issues which need to be briefly noted here. First, a domain name can be hijacked. Those who send junk e-mail promotions, known as spam, sometimes use someone else's domain name so that they do not have to address hostile responses, known as being flamed. Consequently, messages that appear to be from a law firm may not be. Conversely, e-mail can be sent anonymously through the use of anonymous remailers. Therefore, a lawyer could send messages that were out of compliance, but not be traceable for the purpose of accountability. Additionally, banner ads can be tailored to the demographics of an individual who is accessing a web site, so that someone from a library may get a different banner ad on the same web site than someone from a corporate office.
The unique quantitative and qualitative aspects of client development for legal services on the Internet create a series of options for policy-makers. Not surprisingly, none of the choices may be satisfactory for all those effected by the decision-making. The first option is to assume the application of Rule 7.1 is suitable to the current and foreseeable uses of the Internet as a client development tool and make no changes. Indeed, the ethics opinions that have addressed various uses thus far have uniformly concluded that the current rules apply to the marketing endeavors and have expressed little difficulty with their applications. 93 By creating a standard which is stricter than that found in consumer protection legislation, the legal profession has distinguished itself from other businesses. This rule, consequently, works to maintain the professional monopoly in providing the practice of law.
However, when considering the unique aspects introduced by cyberspace, the current rule becomes deficient. As discussed above, it is constitutionally vulnerable if it is assumed that states can declare aspects of speech to be false or misleading. In particular, the standards in paragraphs b and c in Rule 7.1, prohibiting the creation of unjustified expectations and the factually unsubstantiated comparison of services, could be found to be overly broad.
Additionally, Rule 7.1 is limited in the direction given to practitioners about permissible and impermissible material. A simple review of current law firm web sites indicates that firms do not understand the limits of 7.1 as they apply to legal services advertising in general. 94 If the unique aspects of domain names, meta tags and links are included in the current framework of Rule 7.1, confusion and subsequent inconsistent compliance will result in unlevel playing fields between competing law firms. Worse yet, blatant disregard for all ethics rules will ensue. To the extent the rule is not a satisfactory guidepost for practitioners, it will not be followed. And to the extent the rule is not followed, potential clients may well be disserved.
A second option is to modify Rule 7.1 in ways that are directly responsive to the issues deriving from client development in cyberspace. This would require the development of rules that limit domain names, meta tags, links and tracking, as well as condemn purposeful acts such as domain hijacking. A detailed set of rules responsive to the emerging technology may advance the professional monopoly, but it too would have constitutional vulnerabilities. While the rules would give practitioners direction, they would require constant vigilance and updating at the same pace as that of technology. Given the history of state adoption of model rules, particularly in the commercial speech arena, the promulgation of detailed and responsive model rules is certain to result in greater inconsistencies between the states. This will defeat the purpose of the direction to practitioners and also fail to meet the needs of consumers.
To best address the practical changes that are resulting as a consequence of client development in cyberspace, Rule 7.1 should be changed to a standard that broadly reflects consumer protection. That change needs to focus on the prohibition of that commercial speech which is "a material misrepresentation of fact or law" or an omission "necessary to make a statement considered as a whole not materially misleading." In other words, Rule 7.1 should be limited to the substance of current paragraph (a).
If a lawyer's commercial speech was likely to create an unjustified expectation, the violation would be actionable under this modified rule. Likewise, if commercial speech compared the lawyer's services to that of other lawyers without factual substantiation to the extent that it created a material misrepresentation, a violation would also occur. However, these standards would not be viewed as absolutes. Firms using the Internet to communicate with corporate- centered potential clients could refer to themselves as national firms providing full corporate services without fear of being in violation of overly broad provisions which are not aimed at the sophisticated institutional client.
In the communication of commercial speech, a lawyer shall not knowingly or with disregard, permit a false or misleading communication about the lawyer's services to be made. The communication of commercial speech is false or misleading if it contains a material misrepresentation of fact or law or omits information necessary to make the statement considered as a whole not materially false or misleading.
A set of hortatory considerations could then give specific direction to practitioners. These would stress the following: a) that the selection of a lawyer should be based on the client's informed decision and not on promotions that appeal to emotional responses. The communication of commercial speech should then be primarily informational; b) that no two cases are alike and the communication of commercial speech should inform the potential client that the results obtained in one case for one client should not lead to the belief that those results would be obtained in any other case; c) that the lawyer is responsible for all commercial speech about the lawyer's services unless the lawyer has no control over the communications. Consequently, a lawyer may not quote from material or create a hypertext link to material which would violate this rule if the lawyer communicated the material directly. Likewise, the lawyer is not responsible for communications about the lawyer's services which the lawyer had no ability to control; d) that a lawyer has the responsibility to maintain the currency of information the lawyer uses in commercial speech and violates this rule if material becomes a misrepresentation and the lawyer fails to take reasonable steps to modify or cease dissemination of the information; e) that a material misrepresentation may arise when a lawyer communicates in ways that cannot be readily visible, such as through meta tags, if the substance or effect of that communication amounts to a material misrepresentation if it is visible.
Each of these provisions could then be further explained as they apply to commercial speech on the Internet, as well as other media, in more detailed comments. So, for example, the comments would point out the nature and use of meta tags as it discusses paragraph e.
One shortfall of the third option is that it does not tend to support the professional monopoly. By relying on the language of consumer protection statutes, this alternative tends to make the legal profession more like other businesses, instead of distinguishing it, as more restrictive rules are likely to do. This result needs to be balanced against the interest consumers have in acquiring information pursuant to their selection of counsel, as well as the direction practitioners need when presenting information about legal services to those consumers.
Regardless of which of the above options is pursued, a requirement within Rule 7.1 that lawyers may not communicate their services in ways that are unlawful should be imposed. A provision of this nature may be of concern to policy-makers because it would appear to lead to a violation of the doctrine of separation of powers. However, the requirement would actually strengthen the doctrine. To illustrate, if a lawyer communicated in a way that violated a statute, the separation of powers doctrine could serve as a defense. However, if the violation were also a breach of the ethics rules, a lawyer could be sanctioned without encroaching upon the doctrine. This is similar to the use of the Model Rules in a way that allows for the sanction of a lawyer who commits a criminal offense. 96 Model Rule 8.4 involves conduct and not speech. However, in articulating the Central Hudson test, the Supreme Court clearly indicated that states may ban commercial speech which is unlawful, in addition to that which is false or misleading.
The issue of banning unlawful commercial speech is pertinent to uninvited solicitations for legal services through faxes and email (which is known at spamming). Both federal and state legislation limit or ban the commercial use of unsolicited faxes. Furthermore, various legislative proposals are likely to strictly regulate commercial communications that are spammed in the near future. The issues involving spam are discussed in more detail below.
Model Rule 7.2 specifically addresses lawyer advertising. It includes four pertinent provisions.
Model Rule 7.2(a), stating that lawyers may advertise through the public media, is little more than a reflection of the current status of the law. In that respect, it is more of a prefatory comment and has little significance compared to other rules. It does not advance the professional monopoly, nor does it render protection to consumers. Nevertheless, it informs lawyers about one of their constitutional rights. Furthermore, the state counterparts to Rule 7.2(a) have been uniformly cited in state ethics opinions responding to questions about the use of the Internet as a client development tool for legal services. 101 To the extent these features have value, the Rule 7.2(a) should be retained. However, the purposes of direction to practitioners and state uniformity would be enhanced if the rule were amended to include the Internet as part of the listed permissible media which lawyers may use as advertising vehicles. The comments may note the acceptable use of web sites, banner ads, e-mail, List Serves and usenet groups as parts of the Internet.
As discussed in the examination of false and misleading representations, the Internet provides quantitative and qualitative distinctions from other media. These differences can be problematic in the application of Rule 7.2(b), which requires the two year retention of a copy or recording of an "advertisement or communication," as well as a record of when and where it was used. The comments make clear that this requirement is for the purpose of facilitating enforcement. In other words, if disciplinary counsel receives a complaint about an advertisement, the rule allows for an expedient method of obtaining a copy of the subject of the complaint.
The scope of the retention requirement as it applies to the Internet is far from clear, however. The Internet creates a question of what a "copy" is. Is it printed or can it be electronic? Is a lawyer required to retain the entire web site or only the home page? 102 Does a lawyer need to retain all changes to a web site no matter how insignificant? Must a lawyer retain the links the firm makes to other sites? Must the lawyer retain the html code language if there is a challenge based on meta tags? Since different browsers create differing views of web sites, is there a standard or can the lawyer make a selection of the browser, even though viewers may see the material differently? 103 What is sufficient to establish where and when the communication was used? Is a lawyer required to obtain and maintain logs showing the source of hits to the web site, or is it sufficient to identify the URL? Is a lawyer required to know the other members of a list server if he or she sends e-mail that may amount to commercial speech, or is it acceptable only to record the e-mail address of the list server?
Since the rule is one to facilitate enforcement, one way to address these issues is to define the scope of the rule in relationship to the provisions of Rule 7.1. The best way to give practitioners direction, insure wide-spread compliance and assist in consumer protection is to modify the rule in a way that relates it to the provisions that are detailed in Rule 7.1. Specifically, it would be useful to identify that which is a material misrepresentation or omission. So, for example, retention would be required of all commercial communications that contain promotional content for the lawyer's services, or suggest that a result obtained in one situation will be replicated in another. Likewise, retention would be required of commercial communications that link to other information which makes similar representations.
In addition, the rule may be narrowed by providing an expressed opt-out, excusing the lawyer from the requirement to retain those types of commercial communications which are highly unlikely to result in a material misrepresentation. Known as "safe harbor" provisions, opt-outs have been used in various state ethics rules and were employed in the Model Code. As they would apply to this rule, opt-out provisions might include on-line or published unembellished directory listings, on-line or published firm announcements or unembellished notices of program sponsorships, such as that which some firms do for public radio or television. The comments should note, however, that an opt-out only means a lawyer is excused from the requirement to retain the material, but is not excused from the rule barring false or misleading communications.
One overriding aspect of client development on the Internet when compared to other media, is its speed and fleeting nature. As noted, web sites are relatively easy to change and lawyers should be encouraged to keep the contents of their sites current. Some law firms change their sites every few days. Similarly, those who receive e-mail typically delete the messages soon after they are read, unless they are archived for future reference. These dynamics suggest that there is a need to require lawyers to retain their Internet-based commercial activities. At the same time, the value of requiring retention for an extended period is highly questionable, as is the constitutional validity of such a requirement. The final prong of the Central Hudson test requires the regulation be no broader than necessary to achieve the state's regulatory purpose. 104 The purpose of facilitating enforcement may be sufficiently met with a requirement to retain material disseminated through the Internet for 60 or 90 days after it is last disseminated, rather than the two years called for in the Model Rule. 105 It should be noted that at least one private service archives web sites at a reasonable cost. 106 However, the requirement to archive multiple versions over an extended time could amount to a substantial cost, consequently discouraging the lawyer from making frequent updates, resulting in a reduction of the service and benefits provided to potential clients.
Model Rule 7.2(c) is relevant to client development on the Internet because it prohibits a lawyer from giving anything of value to a person for recommending the lawyer's services, except for the reasonable costs of advertisements or other communications permitted by the rules. The rule also permits a lawyer to "pay the usual charges of a not-for-profit lawyer referral service or legal service organization." The obvious question when applying this rule to aspects of emerging technologies is how to determine the "reasonable costs of advertisements" in a medium that has no historical basis. As discussed above, the costs of developing and maintaining a web site may vary considerably. At one end, the cost is no more than the modest expense of the software and time of those who do it themselves. At the other extreme, large law firms typically spend tens of thousands of dollars in the development of their sites, including considerable expenses for staff or consultant time to maintain them.
However, the purpose of Rule 7.2(c) is not to cap the legitimate expenses a lawyer may spend on a high quality marketing product, but rather to prohibit arrangements involving referral fees for, as the comment states, "channeling professional work." 107 As a result, a lawyer can not advertise with the costs gaged to the result of the ads or commercials.
Rule 7.2(c) applies to the use of the Internet as a client development tool in several other ways, most of which are not likely to be problematic, but are nevertheless worth noting. First, as discussed, domain names may be used as advertising tools. While most law firms register names that are tied to the name of the firm, lawyers may select names that promote their services much like telephone numbers which identify practice areas (e.g. 1-800-DIVORCE). If a domain name is not registered, a lawyer may do so at a cost of $100 per year. However, an industry has emerged which licenses or sells registered domain names. Although the value of the domain names may be questionable, the costs of some are considerable. 108 Some sites of domain name vendors are http://www.domainmart.com, http://www.domains.com, http://www.igoldrush.com/sell4.htm, and http://www.bestdomains.com. This raises a question of whether it is reasonable for a lawyer to pay thousands of dollars for a domain name, when another name could be obtained for the $100 registration cost? This situation is analogous to advertising in other media. If a lawyer were to buy a television commercial in prime time, the cost would be far higher than for one airing late at night. Nevertheless, so long as the rate is set in the marketplace, applies to anyone and does not involve channeling work to the lawyer, the differences in the costs should not be an issue.
Banner ads for legal services also involve the application of Rule 7.2(c). The technology enables banner ads to be targeted and to be cost out according to hits which link viewers to the law firm's site. While neither of these unique features violates the current reading of this rule, they may merit some future scrutiny.
Hundreds of thousands of lawyers have a presence on the Internet through listings in directories, most notably the Martindale-Hubbell Lawyer Locator and the West Legal Directory. 109 Several smaller directories exist, typically cross listing fields of practice with states to aid potential clients in finding a lawyer. For example, such cross-listings enable a potential client to locate a real estate lawyer in Colorado or a domestic relations lawyer in Oregon. 110 Directories have been a long-standing method for consumers and lawyers alike to find lawyers, particularly when they have a need to do so in a jurisdiction outside of their own. Although participation in directories are expressly permissible in Rule 7.2(a), the rules do not define either directories or lawyer referral services. While Rule 7.2(c) permits the reasonable costs of advertising and permits the usual charges of a not-for-profit lawyer referral service, it is ambiguous about the costs of participation in a lawyer referral service that is operated for a profit. The need to clarify this issue is accentuated by the participation of so many lawyers in vehicles typically considered for-profit directories. Consequently, policy-makers may need to address the propriety of lawyers participating in for-profit lawyer referral services. To the extent participation may violate the rules, the comments should clarify the distinction between the impermissible referral services and the permissible participation in lawyer directories.
Any clarification that limits a lawyer's participation in an on-line for-profit lawyer referral service must consider the constitutionality of the limitation, in light of the Central Hudson test. Standards that permit only directories or not-for-profit referral systems may distinguish the profession from other services and contribute toward the preservation of the monopoly. However, the constitutionality of a standard that bans on-line for-profit lawyer referral services that are operated in ways that are not false or misleading, and therefore comply with the provisions of Rule 7.1, is questionable. This leads to the conclusion that the vehicles for client development should not be distinguished by their profit or non-profit modes, but rather by a dichotomy of truthfulness or deception. This is adequately addressed in the suggested proposed modification of Model Rule 7.1.
Rule 7.2(d) requires all lawyer advertising to include the name of at least one lawyer responsible for its contents. The comments make no reference to this rule, however, it is presumably another rule of administrative convenience. Like the record retention issue discussed above, this rule would be subject to the Central Hudson test as it applies to the lawyer's use of the Internet in marketing. However, unlike the record retention rule, this provision appears to be a minimal intrusion which guards against consumer fraud. Furthermore, other provisions of the ABA Model Rules impose vicarious liability, and therefore, lawyers in a firm share culpability with the lawyer named in the material. 111 In other words, being the named lawyer should not enhance the prospects of that lawyer being subjected to discipline while other lawyers in the firm are excused.
Emerging technologies focus on the need to clarify a few aspects of this rule, however. Banner ads are typically small ads within other web sites. The space allocated for banner ads does not always permit extensive disclosures and efforts to name a lawyer may be unreadable with some monitors. One question this raises is whether the rule is met by using the name of the law firm, provided at least one named partner is a living and current member of the firm. This is similar to a directory listing that may only include the firm's name, address and telephone number (and perhaps more recently the fax, e-mail address and URL). Another question is whether the rule is met if the identification of the responsible lawyer can be disclosed after clicking on the banner ad and connecting to the law firm's site. For examples of banner ads for law firms where no lawyer is listed other than the firm name, see the site for West Legal Directory at http://www.wld.com/client/Welcome.asp. It would seem that the purpose of identifying someone responsible for the content of the information would be obtained by allowing the banner ad to avoid the identification, but requiring it to be clear in the linked material. Practitioners would benefit from clarification on these issues, which could be addressed in the comments to the rule.
Whereas the advertising regulations of Rule 7.2 tend to be most applicable to a lawyer's use of the World Wide Web, the solicitation provisions of Rule 7.3 are most applicable to the forms of directed electronic communications, such as e-mail, usenet groups and chat rooms. 116 Consequently, the threshold question is whether client development techniques used by lawyers through the Internet are analogous to in-person or live telephone solicitations, or to written communications, such as direct mail.
A text-based e-mail, with an easily kept record from either the sender or recipient, which is not sent and received in real time, is akin to direct mail correspondence in these respects. The constitutional basis that justifies the ban on in-person solicitation therefore should not apply to e- mail.
Since Rule 7.3(a) explicitly forbids only in-person and live telephone contacts under the circumstances noted above, practitioners need direction regarding which forms of electronic communications are covered by this rule. If the issue is the level of persuasion that applies only to real time back and forth communications, then this may need to serve as the basis for an alteration to the rule. In this case, the introduction of electronic communications shifts the dichotomy from one of spoken versus written communication, to one of real time versus time-delayed communications.
Model Rule 7.3(b) imposes limits on all solicitations which are otherwise permissible by forbidding a lawyer from going forward with a solicitation if doing so involves coercion, duress or harassment. Solicitation is also forbidden if the perspective client has made known to the lawyer a desire not to be solicited by the lawyer.
If a lawyer's activities in a chat room are not deemed unethical by virtue of Rule 7.3(a), then the provision of 7.3(b) prohibiting coercion, duress or harassment would be a prominent aspect of governing this type of communication.
The comments to Rule 7.3 do not clearly define coercion, duress or harassment. They do indicate, however, that it may violate the rule for a lawyer who permissibly solicits and receives no response to further communicate with the perspective client. 123 This could lead to the conclusion that a perspective client's receipt of multiple spam messages, or junk e-mail, from a lawyer or firm could amount to harassment in violation of this rule.
The economics of spamming have changed the face of direct marketing. Spamming has no cost for paper, printing or mailing. Virtually the only cost to the spammer is that of acquiring an e- mail address list. Spammers such as Cyber Promotions, Inc. route uninvited e-mail messages to millions of Internet users for only hundreds of dollars. These economics require a very small return to justify the cost and can quickly lead to a profitable marketing technique.
Not only is there nothing in the Tennessee rules that were in effect at that time that specifically prohibited or limited spamming, but the ABA Model Rules do not have provisions consistent with the first three violations noted above. Although Model Rule 8.4 prohibits activities prejudicial to the administration of justice, business getting endeavors of this sort are speech, subject to First Amendment protection, rather than activities which carry no such protection. Consequently, it is unlikely that Rule 8.4 could serve as a limit on spamming.
Had Canter repeatedly spammed the same groups and therefore, the same individuals, he could have been interpreted to be in violation of Model Rule 7.3(b) for harassment. The Canter case demonstrates a need to consider direction on the use of widespread e-mail for legal services. One issue that was a prominent consideration in the Canter disciplinary decision was the effect of shifting costs with spam from the sender to the recipient. For junk mail, the sender must pay postage. But for spam, if there is a cost of transmitting the material, it is in the cost of those recipients who pay for their access to the Internet by time. For example, customers of America On Line have an option of paying a flat monthly fee for unlimited access, or of paying a lesser base charge for a limited number of hours and an hourly charge for use above that minimum level. Therefore, customers are paying for the time it takes them to read through or cull their spam. In this situation, the question focuses on the propriety of shifting the cost of an advertisement or solicitation to the potential consumer. Consideration should be given to amending Model Rule 7.3(b) in a way that prohibits shifting the costs of uninvited solicitations such as e-mail messages to their recipients.
As noted above, Rule 7.3(b) also includes a provision banning lawyers from soliciting potential clients who have informed the lawyer that they do not wish to be solicited. This opt-out is not a particularly effective method for most types of solicitation, but it may prove effective for spamming. If a lawyer were required to give the recipient of solicitation an opt-out option, the recipient could do so with a click of the mouse, a far easier act than sending a letter directing a lawyer to cease solicitations. As a result of these issues, Model Rule 7.3(b) needs to be reconsidered in light of these matters. The Rule needs to address client development endeavors within chat rooms, as well as issues involved in sending unsolicited e-mails, or spam, from lawyers offering their legal services.
Model Rule 7.3(c) requires solicitations to "prospective clients known to be in need of legal services in a particular matter" to be labeled as "Advertising Material." The labeling must be on the outside of an envelope or at the beginning and ending of a recorded communication. People who do not generally receive mail from lawyers may be alarmed when they do. Consequently, the requirement to label the envelope immediately alerts the recipient the correspondence is no more than promotional literature. As the rule applies to client development through the Internet, practitioners need direction on labeling information where there is no envelope, nor beginning and end of a recorded communication. In a set of rules proposed by the Florida Bar which is now pending with the Florida Supreme Court, lawyers would be required to designate e-mail solicitations as advertising materials in the subject line of the e-mail transmission. 128 This would alert recipients of the nature of the solicitation. E-mail filters could be employed by those who did not want to receive the information. However, subject lines may have a limited number of characters in the e-mail log and the complete message may not be apparent to recipients. A rule requiring conspicuous labeling at the beginning of the text is an alternative to this proposal.
A second issue is more difficult. Throughout the recent history of lawyer advertising and solicitation there has been some controversy about whether lawyers have the right to send only mass mailing solicitations or targeted direct mail, in other words, solicitations to persons known to be in need of legal services. In 1988, the Supreme Court held that lawyers could send mail specifically to those known to be in need of services, such as accident victims, judgment debtors and foreclosure defendants. 129 As a result, the Model Rules impose the labeling requirement only on solicitations directed to those who are known to be in need of services. While this provides consumer protection, it also allows law firms targeting corporate clients to send attractive brochures to an audience that purportedly does not need the warning required by the label. The economies of spamming, however, may make a mass e-mailing less expensive than a targeted one that would only go to those known to need services. The interest of consumer protection would suggest the need to label e-mail communications where the intended recipients include those who may be alarmed by the receipt of information from a lawyer. Model Rule 7.3(c) should be amended to meet this concern. Model Rule 7.3(d) is one that permits lawyers to participate in prepaid and group legal plans even if they seek members in-person or through live telephone contact. The rule has little relevance to this discussion and is not further analyzed here. There are two major issues not addressed in the rules governing the solicitation of legal services that pertain to client development on the Internet, yet are broader. Any reexamination of the rules should consider lawyer-to-lawyer communications and invited solicitations. To the extent the rules restricting solicitation are intended to provide consumer protection, they have limited justification in their application to lawyer-to-lawyer solicitation. Corporate counsel in major businesses and industries do not suffer from the emotional vulnerability that may demand consumer protection on behalf of the mass disaster victim. While in-house counsel should be able to opt out of unwanted solicitations, they do not need the same protection that merits labeling or even bans on in-person solicitation. The marketplace is probably a far greater control than the ethics rules to govern appropriate behavior. Consequently, those rules should be limited in their application to lay persons. Second, the current rules fail to differentiate invited and uninvited solicitation. In fact, neither the rules nor the comments define solicitation at all. If a potential client asks a lawyer for information about the lawyer's service, what is the lawyer's response if not a solicitation, albeit an invited one. If a lawyer's home page asks its visitors if the lawyer may provide them with further information and the visitors accept the offer, is the subsequent exchange of information anything other than solicitation?
The failure of the rules to carve out these exceptions make them constitutionally vulnerable for their failure to meet the final prong of the Central Hudson test. Arguably, they are not narrowly tailored to meet the state interest. These provisions should create exceptions, while continuing to protect the consumers who need the protection and giving clear direction to practitioners.
An analysis of the ABA Model Rules of Professional Conduct viewed in light of new and emerging client development initiatives undertaken through various aspects of the Internet demonstrates a need to revise those portions of the rules that govern these activities. The goals of all modifications to the rules necessarily include the need for better direction to practitioners and an assurance of protection to consumers of legal services. Coupled with this, the need for constitutional compliance which will avoid future rule revisions and, when possible preservation of the monopoly of the legal profession, are further goals. The discussion of these issues raises a variety of revisions which could be beneficial. A proposal for revisions to Rule 7.1 through 7.3 is set out in Appendix 1 to this report.
The provisions of Section Seven of these rules govern a lawyer's commercial speech, whether it is spoken, recorded, broadcast or published in-person, electronically, in writing or otherwise. The U.S. Supreme Court has defined commercial speech as that which "proposed a commercial transaction" or which is "related solely to the economic interests of the speaker and its audience."
Whether or not speech is commercial speech is generally determined objectively by its content. Some speech is intertwined and contains elements of commercial speech and non-commercial speech. If the speech is inextricably intertwined, it may be given full First Amendment protection. If, however, it is possible to separate the elements, the contents as a whole are deemed commercial speech and will be subject to these rules.
States have the responsibility to impose limits on commercial speech which serve to protect prospective clients. When a lawyer exercises the rights to commercial speech, the lawyer is subject to certain limitations which may not apply in the exercise of non-commercial speech. Consequently, a lawyer is required to follow those provisions adopted by the state and set out in these rules.
(a) In the communication of commercial speech, a lawyer shall not knowingly or with disregard, make or permit a communication which is unlawful or false or misleading. A commercial communication is false or misleading if it contains a material misrepresentation of fact or law or omits information necessary to make the communication considered as a whole not materially false or misleading.
Avoid commercial communications which may not be readily apparent to prospective clients, but would be misrepresentations if they were apparent.
This Rule governs all commercial communications about a lawyer's services, including advertising, solicitation and all other forms of client development. Because of the need for the public to have confidence in the justice system as the seminal method of dispute resolution, lawyers have an obligation to communicate information about their services only in ways that are lawful and truthful.
A lawyer must assume the responsibility for all commercial communications about the lawyer's services over which the lawyer has any control. For example, the contents of a press release or client seminar are subject to this standard as much so as a television commercial, directory advertisement or Internet home page promoting the lawyer's services. However, the lawyer cannot be responsible for communications make under the auspices of the lawyer or firm when in fact the lawyer, exercising due regard, had no control over the communication. This case would occur, for example, when a lawyer or firm's domain name was hijacked or print material was circulated under the lawyer's name but with no authority.
There are many circumstances under which the commercial communication of services may be false or misleading. To guard against potential violations of this standard, a lawyer should follow all provisions of Rule 7.1(b).
The communication of legal services may be truthful, but easily lead a potential client to the belief that a lawyer can obtain results in ways that are illegal or violate the rules. For example, the use of prefixes by former government officials, such as senators, governors or judges, causing them to be referred to by their prior titles can mislead a client into the belief there is a personal or on- going relations with those responsible for making a decision about the client's legal matter. Similarly, if a lawyer links a web site to an official court or government site without any indication that there is no relationship between the firm and the linked site, a client could be mislead.
The Constitutional right of a lawyer to advertise is founded in the need for clients to obtain information to help them gain legal services and representation. As a result, a lawyer's commercial communications should be predominately information. Communications which appeal to greed or avarice emotions, regardless of the media, are likely to mislead potential clients. Similarly, each legal matter has a unique set of circumstances and clients should not be lead to believe that the results of one case will lead to similar results in another case. For the same reason, lawyers should avoid representations that create an unjustified expectation about the lawyer's services or possible results. The risk of an unjustified expectation is present in every media from letterhead to the Internet. Lawyers must be conscientious about implications overstating their size, geographic availabilities, substantive capabilities and rates of success. For example, if a lawyer published a brochure or posted a web site that discussed only those cases in which the lawyer's client was successful and omitted those in which they were not, a unjustified expectation could result that the lawyer is always successful.
While lawyers should not be responsible for the misuse of their names, and should only be responsible for the communications under their auspices, they must be diligent about the currency and accuracy of that which they do control. When commercial speech becomes inaccurate because of a change of circumstances, a lawyer has the responsibility to make every reasonable effort to make the information accurate as quickly as feasible under the circumstances. Subsequently occurring misrepresentations in a published annual directory may continue for a year without the lawyer having the ability to amend the material. In such cases, lawyers should take steps to otherwise communication the changes to potential clients. However, other media, such as an Internet web site can be changed quickly and it is the lawyer's responsibility to do so. When someone not affiliated with the lawyer makes a representation about the lawyer's services, a lawyer should only make reference to that information, for example by quoting or linking to it, if the lawyer would have the ability to make the communication under these rules. If the information is not consistent with the provisions of Rule 7.1, the lawyer should take reasonable efforts to encourage those who convey the information to amend the inaccuracies.
One aspect of recent technology that does not exist in other media is the use of information that is not readily apparent within the commercial communication. For example, World Wide Web sites may include devices to facilitate an Internet search for a site or topic, such as legal services. A lawyer should avoid the use of any information which is not seen if that information would be inappropriate under these rules if it were seen.
Office hours and appointment times and arrangements.
Rules 7.2 (c) and (d) are unchanged in this proposal, but clarifications are included within the comments.
To assist the public in obtaining legal services, lawyers should be allowed to provide information about their services through various forms of marketing and advertising. The public's need to gain information about legal services can be fulfilled in part through marketing and advertising methods. These methods engage traditional media such as the Yellow Pages, newspapers and television, as well as emerging technologies such as on-line directories, web sites and email. Although information about legal services can benefit all types of clients, the need for information is particularly acute among low and moderate income clients who may be unfamiliar with legal services. While the need for information justifies the use of advertising, it, at the same time, increases the risk of misleading or overreaching endeavors. So, while the rules clarify the permissible use of all types of media to advertise, they also impose limits that serve to facilitate the enforcement of impermissible content.
Use of the media set out in Rule 7.1(a) for legal services advertising may raise questions of taste and dignity. However, it is beyond the capacity of the legal profession to define these terms and apply them in ways that are uniform, fair and not vague. Lawyers must aspire to client development that is more than tasteless advertising, but the profession cannot sanction those few lawyers who fail to do so.
Neither this Rule nor Rule 7.3 prohibits communications authorized by law, such as notice to members of a class in class action litigation. Nor do the Rules apply to a lawyer's use of noncommercial speech.
Paragraph (b) requires that copies of certain commercial communications be kept in order to facilitate enforcement of these Rules. It does not require prior review or unrequested submission. Such requirements are burdensome, costly, or doubtful constitutionality and not of sufficient value. Additionally, the use of technologies for client development have complicated an otherwise simply task of record retention. Lawyers who maintain web sites with substantial volume should be encouraged to keep the information current. An obligation for long-term retention of electronic materials may dissuade lawyers from keeping their sites current. Furthermore, advertisements that include content limited to specific items of information are not likely to be misleading. The rule sets forth those safe-harbor provisions in which a lawyer is not required to retain the advertising or marketing materials under this rule. Nevertheless, a lawyer may wish to retain the lawyer's advertising and marketing materials pursuant to a defense to allegations of violations of these rules.
A lawyer is allowed to pay for advertising permitted by this Rule and for the purchase of a law practice in accordance with the provisions of Rule 1.17. A lawyer may compensate employees and agents who are engaged to provide marketing or client development services, such as publicists, public relations personnel, business development staff and web designers. A lawyer may pay for the costs of directory listings, newspaper ads, television and radio air time, domain names, banner ads and so forth, pursuant to the lawyer's client development endeavors. A lawyer may pay for the costs of participating in not-for-profit lawyer referral programs, prepaid legal services plans and group advertising ventures. Each of those endeavors, along with legal aid agencies and public interest law firms, may advertise in ways that are in compliance with these rules.
However, it is impermissible under this rule for a lawyer to use any of the client development methods or resources or legal service delivery programs in ways that tie the compensation for that method or program to the fees that are generated as a result of the method or program. Runners, cappers and those who generate cases for a lawyer and are then compensated for those cases are historically condemned by the legal profession and such practices continue to be highly inappropriate. This rule does not prohibit paying a set or regular compensation to those involved in client development.
Rule (d), like Rule (b), is one of administrative convenience. It requires marketing and advertising materials to include the name of at least one lawyer responsible for the contents of the materials. Under provisions of vicarious responsibilities under Rule (?), a named lawyer is no more or less responsible for violations of these rules than any other lawyer in the firm. The identification merely provides a contact pursuant to a disciplinary inquiry and assists in assuring that a lawyer is knowledgeable about the content of the advertising and marketing material. If the name of a law firm includes that of a lawyer who is active in the firm and willing to be the designee pursuant to this rule, the firm's name provides a contact sufficient for the compliance of this rule.
(a) A lawyer shall not by in-person, live telephone contact, or other real-time contact, solicit professional employment from a prospective client who is not a lawyer and who has not invited the solicitation when the lawyer has no family or current or prior professional relationship and when a significant motive for the solicitation is the lawyer's pecuniary gain.
the receipt of the solicitation is uninvited and imposes any economic cost on the prospective client.
(c) Any written, recorded or electronically transmitted communication from a lawyer soliciting professional employment from a prospective client who is not a lawyer, who has not invited the solicitation, who is known to be in need of legal services in a particular matter, and with whom the lawyer has no family or prior or current professional relationship, shall include the words "Advertising Material" on the outside of the envelope of mailed communications and conspicuously at the beginning of recorded and electronically communicated material.
(d) Any electronically transmitted communications from a lawyer soliciting professional employment from a prospective client who is not a lawyer, who has not invited the solicitation and with whom the lawyer has no family or prior or current professional relationship, shall be conspicuously labeled "Advertising Material" at the beginning of the communication.
Direct contacts, whether in-person, over the telephone or through Internet chat rooms, with certain potential clients create a potential for abuse. The lawyer is a trained advocate and the client in need of legal services may be emotionally vulnerable. As a result, the prospective client, who may be overwhelmed by the circumstances giving rise to the need for legal services, may find it difficult to fully evaluate all available alternatives with reasoned judgment in the lawyer's presence and insistence upon immediate retention. Such a situation is fraught with the possibility of undue influence, intimidation, unaccountable misrepresentation and over-reaching.
The potential for abuse justifies a prohibition of direct solicitation under certain circumstances, particularly since other forms of client development are permissible under these rules, offering lawyers alternative means of conveying necessary information to those who may be in need of legal services. Advertising may be communicated via virtually any type of media. Materials may be mailed to potential clients in most circumstances and the World Wide Web is available for lawyers to present a vast array of credentials in an affordable way. None of these media are likely to subject the prospective client to persuasion that may overwhelm the client's judgment.
Additionally, the contents of advertising and other non-direct communications permitted in these rules can be permanently recorded so that they cannot be disputed. This potential for informal review is itself likely to help guard against statements and claims that might constitute false or misleading communications, in violation of Rule 7.1. The contents of direct communications between a lawyer and a prospective client can be disputed and are not subject to verification and the protection that can derive from a record. Consequently, the direct communication is more likely to approach the line between accurate representations and those that are false or misleading.
There are several circumstances in which it is unlikely a lawyer would engage in over-reaching, and the prohibition of direct communication is not necessary. Therefore, direct communications with prospective clients are acceptable if the prospective client is a lawyer, someone who has invited the communication, a family member, a current or prior client or where the lawyer accepts the case without any pecuniary gain.
But even permitted forms of solicitation can be abused. Thus any solicitation which contains information which is unlawful or is false or misleading within the meaning of Rule 7.1 is prohibited. Additionally, any solicitations which involves contact with a prospective client who has indicated a desire to the lawyer not to be solicited, any solicitation which involves coercion, duress or harassment, or any solicitation which imposes any economic cost on the prospective client are all impermissible under this rule. If after sending a letter or other communication to a prospective client in a manner that is permissible by these rules, a lawyer receives no response, any further effort to communicate with the prospective client may be deemed harassment under this rule. Likewise, multiple uninvited email messages could fall under this category. Furthermore, a lawyer may not solicit a prospective client in a way that imposes any economic costs on the prospective client, unless the client has invited the solicitation. Examples of cost- imposed communications include faxes or email transmissions where the prospective client must pay for the time of telephone transmissions or, in some instances, the cost of time for the use of Internet connectivity.
Rule 7.3(c) requires that certain communications soliciting legal services be labeled as "Advertising Material." This requirement is designed to protect those who are not use to dealing with legal issues and may become alarmed at the receipt of communications from a lawyer when in fact the communication is nothing more than a solicitation for services. The labeling requirement is an unobtrusive method of alerting the prospective client of the nature of the material. The labeling requirement imposed by this Rule is limited to those known to be in need of legal services.
Rule 7.3(d) imposes an additional requirement to label electronically transmitted communications regardless of whether the lawyer knows if the recipient is in need of legal services. The Rule also protects those who may be alarmed by the receipt of the solicitation. This requirement is also designed to assist prospective clients who may otherwise receive a large volume of electronically transmitted communications such as email messages who may wish to discard or set aside those uninvited solicitations. The technology for the transmission of electronic communications does not offer other options such as opting out of or filtering the transmissions that are available for the otherwise comparable direct mail solicitations.
Paragraph (d) of this Rule permits a lawyer to participate with an organization which uses personal contact to solicit members for its group or prepaid legal service plan, provided that the personal contact is not undertaken by any lawyer who would be a provider of legal services through the plan. The organization referred to in paragraph (d) must not be owned by or directed (whether as manager or otherwise) by any lawyer of law firm that participates in the plan. For example, paragraph (d) would not permit a lawyer to create an organization controlled directly or indirectly by the lawyer and use the organization for direct solicitation of legal employment of the lawyer through memberships in the plan or otherwise. The communication permitted by these organizations must also not be directed to a person known to need legal services in a particular matter, but is to be designed to inform potential plan members generally of another means of affordable legal services. Lawyers who participate in a legal service plan must reasonably assure that the plan sponsors are in compliance with the other rules governing commercial communications. 1. The Rules were adopted by the ABA House of Delegates on August 2, 1983. The Rules were adopted by the ABA House of Delegates on August 2, 1983. Model Rules of Professional Conduct, American Bar Association Center for Professional Responsibility, 1998, at viii.
2. Elizabeth Wasserman, "Lawyers File Few Objections to Advertising on the 'Net," San Jose Mercury News, July 17, 1995.
3. See, e.g., articles listed at http://www.legalethics.com, such as Attorney Sites Can Avoid Violations, The Ethical Boundaries of Selling Legal Services in Cyberspace, and How Do Advertising Rules Apply to Lawyer on the 'Net.
6. Lincoln, by David Herbert Donald, 1996.
7. Canons of Professional Ethics, American Bar Association (1908). See also Lori B. Andrews, Birth of a Salesman: Lawyer Advertising and Solicitation (1980).
11. Supra, Andrews, note 7.
13. Ohralik v. Ohio State Bar Association, 436 U.S. 447 (1978).
16. See Florida Rules of Professional Conduct, Chapter 4, Information about Legal Services, effective January 1, 1991.
18. MR 1.6(b)(2): "A lawyer may reveal such information to the extent the lawyer reasonably believes necessary...(2) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client..."
19. For the relationship between professionalism and business practice within the legal profession, see generally Russell G. Pearce The Professionalism Paradigm Shift: Why Discarding Professional Ideology Will Improve the Conduct and Reputation of the Bar 70 NYULR 1229 (1995) and Richard L. Abel, American Lawyers (1989).
21. See MR6.1: "A lawyer should aspire to render at least (50) hours of pro bono publico legal services per year..."
26. See Abel, supra note 19.
27. Brief of Alabama State Bar Association, Arkansas Bar Association, Atlanta (GA) Bar Association, Brooklyn (NY) Bar Association, The Colorado Bar Association, Dade County (FL) Bar Association, Delaware State Bar Association, Essex County (NJ) Bar Association, State Bar of Georgia, Illinois State Bar Association, The Iowa State Bar Association, Jacksonville (FL) Bar Association, Kansas Bar Association, Kentucky Bar Association, State Bar of Michigan, The Mississippi Bar, Monroe County (NY) Bar Association, State Bar of Montana, Bar Association of Nassau County, N.Y., Inc., New Hampshire State Bar Association, Ohio State Bar Association, South Carolina Bar, Suffolk County (NY) Bar Association, Tennessee Bar Association, State Bar of Texas, Utah State Bar, and West Virginia State Bar, as Amici Curiae in Support of the Petitioner, The Florida Bar v. G. Stewart McHenry; Went For It, Inc.; and John T. Blakely, No. 94-226, filed Nov. 7, 1994.
32. Id at 206, fn 20.
46. See, e.g., Stratton Oakmont, Inc. v. Prodigy Services Co., 1995 WL 323710 (N.Y.Sup.Ct., May 24, 1995) finding an on-line service provider to be a publisher and Iowa Supreme Court Board of Professional Ethics and Conduct Ethics Opinion 96-14 (12-12- 96) opining that law firms have a Web site for Iowa residence which complies with Iowa ethics rules and another Web site that complies with other state rules.
49. Supra note 47 at 844.
59. There are also two letter country code top level domains used for sites outside of the U.S. and ".int" is used for international data bases.
61. Large Law Firm Technology Survey: 1997 Survey Report, ABA Legal Technology Resource Center, 1997, at page 2.
63. Some states have begun addressing emerging technologies in efforts to modify their ethics rules. See http://www.tba.org/Committees/Conduct/Rules_html/RULES.html for proposed revisions to the rules in Tennessee and http://www.flabar.org/FLABAR/Information/News/Whatsnew/adrules.ht ml for proposed revisions to the rules in Florida.
64. Supra note 1 at 94.
65. See Alabama Ethics Opinion RO-96-07, Arizona Opinion No. 97- 04, Illinois State Bar Association Opinion 96-10, Michigan Opinion RI-276, North Carolina Proposed RPC 239, Tennessee Ethics Advisory Opinion 95-A-570 and Utah 97-10.
66. Alabama Ethics Opinion RO-96-07.
67. North Carolina Proposed RPC 239 (7-25-96).
68. Michigan Ethics Opinion RI-276 (7-11-96).
69. City of Cincinnati v. Discovery Network, Inc., 113 S.Ct. 1505, 1512 (1993).
70. Central Hudson, supra note 43 at 561.
74. These items are among those deemed not to be solicitation by the rules governing commercial speech in Texas.
78. MR 8.4(c) at 106.
79. MR 7.1(c) at 93.
80. See generally Supra note 15, Provisions of State Codes of Professional Responsibility Governing Lawyer Adverting and Solicitation. North Dakota Rule 7.1 lists 17 items deemed to be false or misleading.
81. See e.g. Loretta W. Moore, Lawyer Mediators: Meeting the Ethical Challenges, 30 Fam. L. Q. 679 (1996), at 868, discussing the similarities between the false and misleading standard of Model Rule 7.1 and the standards for mediators to advertise truthfully. The intricacies of Model Rule 7.1(b) and (c) banning unjustified expectations and unsubstantiated comparisons are ignored by the author.
83. Testimonials are deemed to be misleading in Florida, Louisiana, Mississippi, Nevada, New Mexico and Pennsylvania.
84. A web site consultant firm provides links to the web sites of the top 250 U.S. law firms which have them. To observe the degree of noncompliance with the rules, go to http://www.redstreet.com, link to the firms and observe the number that use misleading words and phrases discussed in this article.
85. See Nassau County (New York) Ethics Opinion 93-10 and Alabama Ethics Opinion 88-56.
86. See Washington Informal Ethics Opinion 91-2.
87. See Virginia Ethics Opinion 1297 and Spencer v. Hon. Justices of Super. Ct. Of PA, 579 F.Supp. Of PA, 579 F.Supp. 880 (E.D. Pa 1984).
88. Pennsylvania Ethics Opinion 93-183B.
89. See In re Zang, 741 P2d 267 (AZ 1987), where the court deemed advertising false or misleading when a TV commercial showed lawyers staged in a courtroom when no lawyer in the firm had ever tried a case to its conclusion.
90. supra www.redstreet at note 83 for links to the top 250 law firms with web sites or registered domain names.
91. For a list of search engines see, Internet 101 at www2.famvid.com/i101/search.html.
92. Robert J. Kutak chaired the ABA Commission on Evaluation of Professional Standards from 1977 until his death in 1983. This Commission created the ABA Model Rules of Professional Conduct.
93. Supra note 64. See also, Massachusetts Bar Association Opinion 1997-130, Nebraska Advisory Opinion 95-3, New York County Lawyer's Association Opinion 921, North Dakota Ethics Opinion 97- 09, and Vermont Opinion 97-5.
95. Supra Crossroads Report, note 5. The report states, "Hortatory measures should be fully implemented as methods of moral suasion used to convince lawyers to communicate their services in ways that enhance the image of the legal profession. These measures should not be critical, but aspirational." at 146- 147.
96. MR 8.4(b): It is professional misconduct for a lawyer to commit a criminal act that reflects on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects.
101. Supra notes 64 and 92.
102. Note that Florida and Texas require lawyers to submit their advertisements for screening prior to or concurrent with the dissemination of the material. For web sites, however, only the home pages must be submitted.
104. Supra notes 43 and 45.
105. To complicate the retention requirements, many of the state rules vary, requiring lawyers to retain advertising material from one to six years. See Supra note 15.
107. Comment to MR 7.2, at 96.
108. Joseph Delivers! is a New Jersey firm that assists lawyers and others with domain name research and registration. According to a press release in March 1998, the firm was seeking one million dollars for the domain name whitehousecrisis.com.
109. See http://www.martindale.com and http://www.wld.com.
110. For a list of approximately 50 on-line directories, see http://www.findlaw.com/14firms/directories.html.
116. This issue becomes more difficult with the increased use of threaded discussion formats within web sites.
119. __ U.S. __, 113 S.Ct. 1792 (1993).
120. See comment to MR 7.3, page 97.
122. Supra note 64, Utah Ethics Opinion 97-10.
123. See comment to MR 7.3 at 98.
124. In re Canter, 95-831-O-H, Judgement of the Hearing Committee.
125. See Spamming Lawyer Disbarred, July 10,1997, at http://www.wiredcome/news/news/politics/story/5060.html.
126. See http://www.junkemail.org/bills and other links at http://www.jmls.edu/cyber/index/spam.html.
127. 47 USC 227 Restrictions on Use of Telephone Equipment.
128. Supra note 62, proposed Florida rules.

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