LawyersUSA

There was a time, not so long ago, that Internet marketing for lawyers consisted of signing up for online directories or maybe an e-mail newsletter. But these days, lawyers are getting much more sophisticated as they explore the possibilities of Web 2.0, social networking and virtual communities.

Unfortunately, the process of developing and adopting ethics rules that govern client development through technology always lag behind the technological advancements, as well as the creativity of marketers. As a result, practitioners are frequently left to guess whether their marketing efforts will comply with the state ethics rules.

However, as lawyers move forward to use available technological resources, we see some direction that has emerged since lawyers began to use the Internet for marketing in the mid-1990s.

To a limited extent, this direction can help lawyers understand the application of the rules to new methods of online communication.

The rules are the rules

In the mid-1990s, when lawyers first sought ethics opinions concerning Internet marketing, the ethics boards came to the a universal conclusion – it is ethical for a lawyer to advertise on the Internet as long as the way the lawyer advertises on the Internet is ethical.

While that may sound like circular logical, it actually tells us a great deal. These ethics opinions clarified that most of the rules are not limited to specific media, but apply to all advertisements regardless of how they are disseminated to the public. If a statement is misleading when it appears on a television commercial, it is misleading when it appears on the lawyer's website.

Unfortunately, the rules that existed at that time did not anticipate emerging technology and sometimes were written narrowly. For example, Hawaii had a rule that permitted direct mail communications only when they were sent by first class mail. Although this type of restriction was adopted by states to limit special deliveries of solicitation materials, the rule was then interpreted on its face to include a prohibition on e-mail solicitations.

On the other hand, Tennessee concluded that e-mail solicitations were an acceptable form of written communications, but subject to specific rules when it brought charges against a lawyer who began to spam listservs with solicitations for his immigration services. Lawrence Canter faced disciplinary charges when his e-mails did not comply with the rules that applied to written communications, including a requirement to label the communication as an "advertisement," and the requirement to file a copy of the communication with the state's disciplinary agency.

Since spam had not existed before, there were no rules to govern it. Tennessee merely applied those rules that already existed covering written communications.

Adopting new rules

While the state ethics opinions and the Canter case clarified that the rules applied regardless of the medium, states still faced the question of whether they should tailor rules to particular technologies or simply apply the existing rules. Tailored rules would provide practitioners with some degree of clarity, but they would most likely become obsolete quickly as the technology advanced.

A few states, most notably Florida and New York, specific rules for "computer-accessed communications" and separately address issues of websites and e-mail.

Other states have embraced even narrower restrictions. For example, some states require e-mails to include a notice in the subject line that the communication is an advertisement.

Most states, however, have followed the direction the ABA took when it amended the Model Rules of Professional Conduct in 2002 by tweaking the rules, amending just a few provisions specifically addressing aspects of technology.

For example, Model Rule 7.3 was amended to prohibit solicitation through "real-time electronic contact" in addition to in-person and live telephone communications. The ABA concluded that "real-time electronic contacts," such as chat rooms, had the same potential of enabling lawyers to over-reach as with in-person solicitations.

The decision of the ABA and most states to avoid rules that focus exclusively on technology allows the rules to be applied across the board and to keep current regardless of the technological developments.

Applying existing rules

As the Canter case illustrates, the existing state ethics rules have been widely applied a variety of technologies, including domain names, websites, online directories and e-mails.

State ethics opinions have concluded that law firms need not use their names as domain names, but to the extent domain names communicate a message, that message must not violate any of the rules. For example, a domain name "iwincases.com" could be deemed a misleading statement in many states because it creates an unjustified expectation about the results a lawyer will achieve for prospective clients.

Similarly, the content of a lawyer's website must not include anything that is deemed false or misleading. Depending on the jurisdiction, this may include information about the results of prior cases, comparisons between lawyers that are not factual, and in a few states, client testimonials.

Ethics opinions caution lawyers about participation in third-party websites. Although the operators of sites, like publishers of directories, have no ethical duty to comply with the rules, lawyers must not violate the rules through the acts of others and are therefore forbidden from participating in online mechanisms that do not conform to the rules.

The next wave of online marketing

The emerging methods of technology-based marketing are creating challenges that will not be easily answered through an application of current rules.

Web 2.0, social networking and virtual communities such as Second Life are based on relationships and the communications that result from them. Through their online conversations, lawyers emerge as the go-to source in their field of practice, not because they used a website to declare their expertise or a newsletter that expounds on new developments in their fields of practice, but because they have participated in conversations that have to do with legal issues and solutions.

To illustrate the difficulty in regulating this wave of online communications, let's look at something most lawyers are familiar with – blogs. While some lawyers blog for no purpose other than advancing a conversation or the joy of journalism, many others do so to demonstrate their expertise. They hope to become known as that go-to resource and to obtain business as a result.

So do bloggers need to comply with the state rules governing advertising? If a blog has a multi-jurisdictional scope, does the lawyer need to comply with the rules of every state in which the lawyer is hoping to obtain clients? Does the blogger need to file the contents of the blog with states that have filing and screening requirements, pay a screening fee and wait for weeks to see if the communication is compliant before posting?

Bloggers would say obviously not, but it more likely depends on the content of the blog.

The fundamental question here is whether the content of the blog is commercial speech.

This question is also pertinent to any other emerging form of communications. The Supreme Court has made it clear that states have a right to impose restrictions on commercial speech. Those restrictions are embodied in the state rules of professional conduct – the ethics rules.

Alternatively, lawyers, like everyone, have a right to express their beliefs, or participate in political discourse, without state restrictions. So, is the blog commercial speech or political discourse? The courts have not clearly defined commercial speech, but have indicated it is that which "beckons business" or "proposes a commercial transaction."

Does the content of the blog beckon business? If so, it could be governed by the state advertising rules. But if the content does not beckon business, it is not likely to be within those rules.

Although this is unchartered territory, this same application should apply to social networking, online Q & A's, and participation in virtual communities.

Prior to the Supreme Court's 1977 decision forbidding states to ban lawyer advertising, lawyers sought out clients through community involvement. They often served on school and hospital boards, civic groups and church councils. They gave the benefit of their counsel and often became known as a fine lawyer as a result.

While many lawyers continue to provide this type of community service in the real world, it is ironic that we are also seeing lawyers assume the same roles in cyberspace. Lawyers are demonstrating an eagerness to participate in dialogue, to answer questions and seek out solutions. In this regard, perhaps technology is enabling lawyers to transcend the rules governing client development altogether.

Will Hornsby is staff counsel in the ABA Division for Legal Services. You may contact him at whornsby@staff.abanet.org. The opinions in this article are solely those of the author. Nothing in this article should be construed as the policies of the ABA or any of its constituent entities.