Lawyer and law firm web pages as advertising: proposed guidelines.

AuthorBrowne-Barbour, Vanessa S.
  1. INTRODUCTION

    Currently, there are no uniform standards designed specifically to regulate lawyer communications on the Internet. Each state and each federal district court is free to promulgate its own rules of professional conduct. (1) Each federal court can adopt the rules of ethics for the state in which it is situated, develop its own set of rules or choose not to develop any local rules to govern professional conduct. (2) For example, without uniform standards, lawyers and law firms advertising through websites accessible to the general public risk violating ethics rules in numerous states, thereby becoming subject to civil and criminal penalties in multiple jurisdictions and possible disciplinary proceedings. (3) Even if the proposed Model Rules of Professional Conduct ("Model Rules") are adopted, it is very unlikely that each of the fifty states will adopt these Rules. The states that do adopt the Rules will likely do so with modifications.

    The following scenario demonstrates the need for clear uniform guidelines to govern lawyer communications on the Internet. Ms. Able, licensed to practice law in Pennsylvania, launches an Internet (4) website to provide personal information, including her biographical profile, as well as professional information, such as her practice areas, office address, telephone number, and other information. Visitors to the website can communicate with Ms. Able through e-mail and real-time electronic communication, or "chat rooms." Ms. Able's website complies with Pennsylvania's ethics rules governing lawyer advertising. Among the visitors to the site are two non-lawyers: one who resides in Florida and one who resides in Minnesota. Both are in search of a lawyer to represent them in separate, unrelated personal injury actions in Florida and Minnesota.

    As these visitors are from Florida and Minnesota, should Ms. Able's website comply with Florida and Minnesota regulations governing lawyer advertising and solicitation? Does Ms. Able's website constitute an offer to render legal services to Florida and Minnesota residents? Since Ms. Able's website can be accessed from each of the fifty states, must the website comply with regulations governing lawyer advertising in each state? Is Ms. Able subject to sanction or civil and criminal penalties for failing to comply with ethical rules governing advertising, solicitation and the unauthorized practice of law in those jurisdictions where she is not admitted to practice law? No uniform guidelines specifically govern lawyer communications and conduct on the Internet. Consequently, Ms. Able's website may potentially violate regulations governing lawyer advertising, solicitation and the unauthorized practice of law in other jurisdictions, thereby subjecting her to civil and criminal penalties, and possible sanctions in Pennsylvania, the jurisdiction in which she is admitted to practice law. (5)

    A separate set of ethical issues is raised if Ms. Able communicates with non-lawyer potential clients using chat rooms. (6) Is such communication considered advertising, which is permissible, or is it considered solicitation, which is prohibited? (7) Generally, as discussed in Part III B, lawyer participation in real-time electronic communication is analogous to direct, in-person solicitation and, therefore is prohibited.

    This Article reviews some of the ethical issues raised by lawyer and law firm advertising via websites. In addition, the Article considers the extent to which such websites must comply with advertising rules governing lawyers in every jurisdiction in which the advertising may be accessed. Further, it also considers the potential for civil and criminal liability if the information contained on websites for lawyers and law firms fails to comply with state rules regulating lawyer advertising. Finally, the Article proposes uniform guidelines for lawyer and law firm websites. These guidelines should demonstrate good faith compliance with conflicting advertising regulations, thereby creating a "safe harbor" from sanctions for inadvertent and unavoidable violations of the various irreconcilable state rules governing lawyer advertising. (8) The proposed guidelines, though not exhaustive, provide a framework to develop additional guidelines that should add even more clarity and certainty to the ethical parameters of lawyer and law firm communications on the Internet. The need for these qualities will become more evident as lawyers in each state rely more heavily upon the Internet as a means of delivering information and legal services.

    Historically, each state's bar examiner's committee establishes the requirements for admission to its bar and sets the standards to regulate the conduct of lawyers admitted to practice within its jurisdiction. (9) Within each state's jurisdiction is the regulation of lawyer communications with non-lawyers, including advertisements. (10) Although lawyer regulations should protect the public interest rather than the "parochial or self-interested concerns of the bar[,]" (11) some "[c]ritics have charged that the unacknowledged purpose of restrictions on the practice of law within a state by persons who have not been licensed in that state is to institute and protect a monopoly for the benefit of the lawyers licensed there." (12)

    The advent of the Internet as a means of mass communication has expanded communications between lawyers and non-lawyers to global proportions, with no geographical limitations. (13) The Internet provides lawyers with the unique opportunity of marketing legal services on the "World Wide Web" (14) to virtually the entire planet. Internet websites are easy, effective, cost-efficient means of providing legal services to anyone with access virtually anywhere in the world, twenty-four hours a day. (15) Other advantages of lawyer websites include advertisement, (16) enhancement of the firm's image as "cutting edge," dissemination of information about the firm's practice areas, creation of unlimited 24-hour a day accessibility, dissemination of general information to the public, delivery of information concerning lawyers' pro bono services, dissemination of newsletters and articles, access to pleadings for existing clients, recruitment, (17) advertisement of and access to continuing legal education courses, (18) facilitation of legal research, including court and agency opinions, (19) the filing of court documents, (20) transmission of e-mail, (21) and circulation of class action lawsuit notices. (22)

    According to a recent American Bar Association survey on the use of technology in delivering legal services, approximately seventy percent of lawyers in large law firms and more than fifty percent of lawyers in small firms use the Internet for e-mail and research. (23) Additionally, more than fifty percent of large firms and more than ten percent of small firms use the Internet to market legal services. (24) At least one commentator suggests that in this age of emerging technologies, lawyers must become proficient in legal research on the Internet or risk potential liability for malpractice. (25) Lawyers' and law firms' use of the Internet to market legal services, however, raises the question of how ethics rules governing advertising, solicitation, conflicts of interest, confidentiality, competence, inadvertent creation of attorney-client relationships, unauthorized practice of law, and other jurisdictional issues will apply. (26) Since lawyer and law firm websites may be accessed in every U.S. and international jurisdiction, marketing legal services on the Internet is fraught with the risk of violating ethics rules regulating lawyers' conduct in advertising and soliciting prospective clients in each of those jurisdictions. (27)

    Which jurisdictional rules of professional conduct apply to lawyer and law firm websites? (28) Despite the explosive growth in the number of lawyer and law firm websites on the Internet, no uniform standards currently govern lawyers' conduct on the Internet. (29) Neither the Model Rules nor the Model Code expressly addresses lawyers' use of technological advances in electronic communication.

  2. LAWYER ADVERTISING IS COMMERCIAL SPEECH

    1. Lawyer Advertising, Pre-"Bates"

      Historically, as the U.S. Supreme Court stated in 1977, "the ban on [lawyer] advertising originated as a rule of etiquette and not as a rule of ethics." (30) This rule of etiquette evolved because "[e]arly lawyers in Great Britain viewed the law as a form of public service, rather than as a means of earning a living, and they looked down on `trade' as unseemly." (31) From the colonial period through the early nineteenth century, American lawyers were not expressly prohibited from advertising to attract clients. (32) Like other professions during that period, the legal practice was considered to be primarily a public service. Advertising by lawyers was disdained as "undignified." (33) As the number of lawyers in America increased in the middle to the late nineteenth century, competition for clients and the amount of legal advertising also increased. (34) However, there were no national uniform standards to regulate lawyer conduct or legal advertising. (35)

      In an effort to regulate the significant increase in legal advertising and to establish a set of standards for the conduct and communication of lawyers, the ABA adopted the Canons of Professional Ethics in 1908. (36) Most jurisdictions in the United States adopted the Canons in whole or in part. (37) The Canons expressly prohibited legal advertising and solicitation, (38) thereby providing the precedent for the states' and the ABA's proscription of legal advertising and solicitation over the subsequent seventy years. (39) Like other advertising in the early and the middle twentieth century, advertising by lawyers was deemed commercial speech and, thus did not enjoy much, if any, First Amendment protection. (40)

      In 1969, the ABA replaced the Canons...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT