When your newsletter is my spam.

• Author: Hornsby, Will
• Position: The Ethical Marketer

One of the world's first spammers was a lawyer. In 1994, Laurence Canter figured out how to send e-mails to thousands of usenet groups and listservs advertising his immigration practice. Many of those who received the solicitation complained to the state disciplinary commission. The hearing committee was faced with something of a dilemma. Since no one had ever spammed, no rules prohibited it. So, the committee applied existing rules designed to address direct mail. The committee found that Canter's e-mail failed to conform to some of those rules and the committee suspended him from practice for one year.

The Canter decision taught us a great lesson--the rules are the rules and they apply even to forms of marketing that did not exist when the rules were adopted. Fundamentally we need to conform our marketing to the rules, rather than wait for the rules to catch up with our innovations in client development.

With that as a starting point, firms need to look at the ethical restrictions on e-mail solicitations, including newsletters. The first question is whether recipients of newsletters have asked for them. If they are sent only to those who have somehow indicated that they want the information, the firm has little concern. However, when they are sent to those who have not requested them, newsletters could be considered solicitations.

Some states do not permit e-mail solicitations because of the way their rules are structured. Other states impose requirements that specifically address e-mails, while many states have labeling obligations governing direct mail, which would apply to e-mails.

Hawaii specifically prohibits e-mailed solicitations. Tennessee prohibits written solicitations sent any way other than regular U.S. mail. Illinois has a structure that forbids solicitations and then provides an exception permitting letters and circulars, which seemingly prohibits e-mails. Consequently, uninvited newsletters that seek legal business would appear to be prohibited in these three states.

In five states, e-mailed solicitations must include a notice in the subject or header line of the message. The problem is that these notices are not the same in any of these five states. Florida requires the e-mail to state "legal advertisement." Nebraska requires the statement "This is an advertisement." Texas requires "ADVERTISEMENT" in all caps, while Virginia requires "ADVERTISING MATERIAL" in all caps. By way of an ethics opinion, Ohio requires the...