Attorney Advertising on the Web: Are We in Kansas Anymore?
| Jurisdiction | Kansas,United States |
| Citation | Vol. 78 No. 9 Pg. 35 |
| Pages | 35 |
| Publication year | 2009 |
By Maxwell E. Kautsch
I Introduction
Kansas, in step with an American Bar Association-influenced national trend and as noted in the June 2007 issue of The Journal of the Kansas Bar Association,1 recently amended its rules for attorney discipline effective July 1, 2007. In the process, Kansas responded to the legal community's adoption of the Internet as a principal medium for marketing legal services.
Although the new version of the Kansas Rules of Professional Conduct (KRPC/Rule(s)) related to attorney advertising contains only moderate restrictions, other states recent changes place greater emphasis on regulating attorney advertising on the Internet. Rules regulating now-familiar media, such as "Web sites, Weblogs, search engines, electronic mail, banner advertisements, pop-up and pop-under advertisements, chat rooms, list servers, or instant messaging" impact attorney marketing strategies and the content of firm home pages in many jursidictions.2
States, such as New York, Florida, Texas, and Connecticut, have drafted entirely new code sections relating specifically to regulating attorney presence on the Internet.3 Given the global nature of the Internet, where a potential client in New York or any other state easily could visit a Kansas lawyer's Web site, may a Kansas attorney comply only with home state rules related to Internet advertising?
II. Regulation of Attorney Advertising: Constitutional Background
States have always had the right to regulate attorney advertising as commercial speech and have adhered to the core tenet that an attorney must not disseminate "false or misleading" information.4 The Internet, of course, is simply "another vehicle for conveying information, no different from an advertisement in the broadcast media, in a newspaper, or on a billboard."5 The KRPC, for example, now state that "electronic media, such as the Internet, can be an important source of information about legal services, and lawful communication by electronic mail is permitted by this Rule."6 Thus, it makes sense that states may regulate Internet-based attorney advertising, and the amended Kansas Rules meet that objective.
III. KRPC Amendments Related to Attorney Advertising on the Internet
The amendments to the KRPC do not add code sections or mandate any specific restrictions on attorneys' use of the Internet (other than the disclaimer found in Rule 7.3, discussed below). However, the amendments do introduce the terms "writing" and "written" to denote "a tangible or electronic record of a communication or representation, including handwriting, typewriting, printing, photostating, photography, audio or video recording, and e-mail."7 This change, clearly and for good reason, extends the scope of the KRPC to all attorney communications through any medium, including the Internet.
In further recognition of attorneys' use of the Internet, Kansas amended the section of the Rules titled "Information About Legal Services." Rule 7.1, that a lawyer shall not make a false or misleading communication about that lawyer's services, remains the same. However, Rule 7.2(a), Advertising, now provides "[s]ubject to the requirements of Rules 7.1 and 7.3, a lawyer may advertise services through written, recorded or electronic communication, including public media." (emphasis added)
Rule 7.3, related to client solicitation through direct contact, expands the prohibitions against such contact. The rule now applies to "real-time electronic" contact with clients, along with "in-person" and "live telephone" contact.8 The disclaimer in Rule 7.3(c), previously related only to solicitation by telephone and mail, is now expanded to Internet communications and provides that "[e]very written, recorded, or electronic communication from a lawyer soliciting professional employment from a prospective client known to be in need of legal service in a particular matter shall include the words Advertising Material' on the outside envelope, if any, and at the beginning and ending of any recorded or electronic communication, unless the recipient of the communication" is either another lawyer or someone with whom the lawyer has a close personal or familial relationship.9(emphasis added)
In light of the amendments to the Kansas Rules, Kansas attorneys understandably may add the disclaimer required in Rule 7.3 and then not feel an urgent need to redesign their Web presence. The Rules simply now state what common sense indicated before: Kansas attorneys cannot disseminate false or misleading information on their Web sites or otherwise on the Internet. Unfortunately, without a definition of "electronic communication" and lacking specific requirements for attorney Web page content, the Kansas rules leave the ethical validity of many Internet transactions up for debate.
Rule 7.3 does make it clear that Kansas attorneys must not solicit clients via e-mail without including the disclaimer "Advertising Material" at the beginning and the end of any "electronic communication," including e-mail.10 But does the "beginning" include the subject line of the e-mail, as that is arguably the beginning of the message? Rule 7.3 also probably prohibits attorneys from soliciting clients through blogging, instant messaging or other electronic communication initiated by the attorney on the Internet. But what about metatags, domain names designed to direct a Web visitor to a law firm's Web site or other advertising gimmicks common on the Internet?
For example, just think about your firm's homepage. Should the homepage contain the disclaimer set forth in Rule 7.3? If not, is a link to a disclaimer needed to avoid a violation of the rule against false and misleading advertising? How prominently should any disclaimer links be displayed? Once the link to the disclaimer is clicked, what information should the disclaimer page contain? What ethical considerations may arise when links on the homepage prompt visitors to provide their contact information and receive e-mail?
IV. New York's Answers
In response to these and other issues, New York, a state with which Kansas...
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