70 J. Kan. Bar Assn. 5, 21-25 (2001). Legal Services and Advertising in Cyberspace.

AuthorBy Michael H. Hoeflich* and Karenbeth Farmer**

Kansas Bar Journals

Volume 70.

70 J. Kan. Bar Assn. 5, 21-25 (2001).

Legal Services and Advertising in Cyberspace

Kansas Bar Journal70 J. Kan. Bar Ass'n, May 2001, 21-25 (2001)Legal Services and Advertising in CyberspaceMichael H. Hoeflich and Karenbeth Farmer, Legal Services and Advertising in Cyberspace, J. Kan. Bar Ass'n, May 2001, 21-25By Michael H. Hoeflich* and Karenbeth Farmer**Introduction

For decades, the organized bar in the United States opposed lawyer advertising and characterized most forms of advertising as unethical. However, in the latter half of the twentieth century, as the nature of legal practice changed and accessibility to lawyers and the legal system became higher priorities for the profession, attacks on traditional advertising bans proliferated. Finally, in Bates v. State Bar of Arizona[1] the Supreme Court of the United States ruled that many forms of restrictions on lawyer advertising were constitutionally impermissible. For the next quarter century, the ethical rules on legal advertising were relatively clear.[2] However, over the past decade - and gathering steam over the past several years - the rapid development of the Internet has made the rules less certain. The increasing use of the Internet by law firms has brought the ethical limits on lawyer advertising to the forefront.

Much has been written about this subject,[3] but a simple guide to the subject is still needed. Kansas lawyers who do not respect and follow the Kansas Rules of Professional Conduct [KRPC] may find themselves sanctioned or even disbarred. But in the world of cyberspace, what are the rules that govern Kansas lawyers?

The focus of this article is on advertising - but in discussing this topic it is important to keep in mind that:

* The Internet remains a frontier and one that is changing at an unprecedented pace;

* The KRPC [and rules in other states] cannot and will not change as rapidly as technology;

* Each state will continue, into the foreseeable future, to make the rules for the practice of law within its borders and so there will continue to be a tension between defined geographic areas and the borderless world of cyberspace; and

* The rules that are impacted by the Internet are not confined solely to the general area of disseminating information about legal services - but run the spectrum, from practicing without a license, to when an attorney-client relationship has been established, to confidentiality and attorney-client privilege.

The extent of the problem and the potential for running afoul of the rules are illustrated by the following statistic: in 1998 - 80 percent of small firms surveyed by the American Bar Association used the Internet, up from 38 percent in 1996.[4] The number of small firms using the Internet has inevitably grown over the past two years to something that now may be approaching 100 percent. The Internet is used for communicating, advertising, soliciting and transferring documents[5] - and each and every transaction can put an attorney at risk.

Rules Governing Information About Legal Services

In the area of advertising and communications about legal services, the first broad and somewhat ephemeral question is whether a communication is commercial speech.[6] This question applies whether the communication is a web page on the Internet, an ad in the yellow pages, advertising on television, a direct mail letter to a prospective client or a firm brochure. If it is commercial speech, then it may be regulated. The Supreme Court has defined commercial speech as speech where the purpose is "to propose a commercial transaction" and "related solely to the economic interests of the speaker and its audience."[7] The intent of the firm web page may be informational but it is content that determines whether it is commercial speech and therefore falls within the regulation of the KRPC on advertising.[8] For firms preparing to put a web page on the Internet or firms that currently have a web page - there should be an expectation that they are proposing commercial transactions and thus will be governed by KRPC 7.1 - 7.5.

KRPC 7.1 articulates the key to any evaluation of a lawyer's communication - "A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services." KRPC 7.1 goes on to define when a communication is false or misleading, such as 7.1(a) when it contains a "materially misleading representation," or 7.1(b) when it is "likely to create an unjustified expectation about the results a lawyer can achieve," or 7.1(c) when it "compares the lawyer's services with other lawyer's services, unless the comparison can be factually substantiated."

KRPC 7.2 governs advertising, permitting advertisement through public media and written or recorded communication. A lawyer is required to keep a copy of an advertisement or communication for two years, along with a record of when and where it was used. [KRPC 7.2(b)] A lawyer cannot give anything of value to a person for recommending a lawyer except for paying the reasonable cost of advertisement. [KRPC 7.2(c)] And any communication made under this rule must contain the name of at least one lawyer responsible for its content. [KRPC 7.2(d)]

KPRC 7.3 governs a lawyer's direct contact with prospective clients. This rule is specifically designed to prevent a lawyer from unduly influencing a prospective client through methods that overwhelm and intimidate thus impairing the individual's capacity for "reason, judgment and protective self-interest." KRPC 7.3(a) states that a lawyer cannot contact a prospective client in-person or by live telephone to solicit professional employment when a "significant" motive for the lawyer's contact is pecuniary gain, unless the prospective client is a family member or they have had a prior...

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