The Internet: how to protect yourself from the perils of cyberspace.

• Author: Schwartz, Peter C.
• Position: Law firm websites

Law firm websites are the newest marketing tool, but there are many ethical pitfalls, including advertising and multi-state practice restrictions

ENTERPRISING lawyers are navigating resourcefully through cyberspace. For instance, the entire research for this article was conducted on the Internet using services for which no specific fee was paid and for which no user registration or membership identification was required.(1) The Internet has become a principal means of law firm marketing and promotion. Yellow pages and 800 telephone numbers are giving way to advanced technologies.(2) Routine Internet video conferencing and real-time audio communication are just beyond today's Internet horizon.(3)

Fifty-eight percent of large law firms responding as of August 1998 to a national survey reported having a home page, up from 50 percent in 1997. During the same time period, responding small law firms reported an increase of 5 to 11 percent.(4) The use of the Internet by innovative law firms continues to expand. Indeed, a law firm that is not technologically proficient and does not offer an Internet presence is at a distinct disadvantage. It is at substantial risk of becoming a Y2K dinosaur.

Internet marketing and promotion of law firms present unique challenges. Law firms need to ensure that the business objectives of the Internet presence are achieved--that is, clients must be retained and prospective clients attracted--but exploitation of the Internet must not result in ethical violations or give rise to claims of legal malpractice.

What are the ethical issues that envelop the use of the Internet for law firm marketing and promotion? Lawyers who use the Internet must know the answers to that question, as well as be cognizant of confidentiality concerns and the need to create and retain hard copies of communications.(5) Lawyers using the Internet must be sensitive to the potential creation of unintended attorney-client relationships, the need to avoid unintended contacts with parties already represented by other counsel, and the need to avoid a myriad of unintended conflicts.(6) Lawyers also must take into account unauthorized practice of law concerns and the possible invocation of foreign state jurisdiction.(7)

LAW FIRM PROMOTION

The Canons of Professional Ethics, first adopted by the American Bar Association in 1908, essentially barred all forms of lawyer advertising and solicitation.(8) The only inroads during the almost next 70 years involved the permissive use of business cards and listings in membership directories. In 1977, in Bates v. State Bar of Arizona, the U.S. Supreme Court declared that it was unconstitutional for states to bar lawyer advertising outright. Advertising by lawyers was deemed to be a form of "commercial speech" protected by the First Amendment.(9)

Since Bates, courts have considered the circumstances under which a state still can regulate lawyer advertising and solicitation.(10) Applying the criteria the U.S. Supreme court articulated in 1980 in Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, the threshold issue is whether the advertising promotes lawful activity, is not misleading, and does not contravene a substantial government interest, such as protecting prospective clients from overreaching or undue influence.(11)

Reacting to Bates, law firms started to publish brochures, advertise in newspapers, other forms of print media, and on radio and television. The traditional "informative" promotion of law firms, including the publication of practice area newsletters and the sponsorship of seminars, exploded.

In 1983, in part response to Bates and the dramatic increase in law firm advertising, the American Bar Association promulgated the Model Rules of Professional Conduct.(12) Model Rules 7.1, 7.2, 7.3. 7.4 and 8.4 regulate advertising and solicitation.

* Rule 7.1 prohibits the making of false and misleading communications concerning a lawyer or a lawyer's services. By its express language the rule is broad and has been applied to all forms of lawyers' communication. Referring to a firm as a "full-service law firm" or as one that provides "complete legal services" has been deemed to be a violation of the rule. Descriptions of a firm as being composed of the "best lawyers," "highly qualified lawyers" or "expert lawyers" also have been labeled as violations. Pictures of non-lawyers intending to portray actual lawyers have been determined to be in contravention of the rule, as has the inclusion of out-of-date information.(13)

* Rule 7.2 formally recognizes the right of law firms to advertise in public media and to use other forms of written and recorded communication. Depending on the jurisdiction, it may be necessary to obtain pre-approval of proposed advertising and to pay required fees.(14) Certain jurisdictions require the retention of advertising materials for stated periods of time. The name of the lawyer responsible for the content of the advertising must be identified and the geographical area or areas of practice often must be delineated.(15)

* Rule 7.3 strictly proscribes law firm contact with prospective clients. Solicitation is subject to significant constitutionally permissive limitations.

* Rule 7.4 prohibits statements of specialization or areas of expert practice except under certain designated circumstances. The rule has been applied to all forms of lawyer communication.

* Rule 7.5 calls on law firms with offices in more than one jurisdiction to indicate the jurisdictional limitations of their members not licensed in the jurisdiction in which a particular office is located. Lawyers should state with specificity those states in which they are licensed.

* Rule 8.4(c) provides that it is professional misconduct for a lawyer to engage in conduct "involving dishonesty, fraud, deceit or misrepresentation." The rule has been broadly applied.

MARKETING AND PROMOTION

1. Non-Internet

   Traditional forms of law firm advertising--pamphlets, articles, use...