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legal.online, March 1996
Copyright 1996 Robert J. Ambrogi
State Bars Ponder Rules For Web Sites
By Robert J. Ambrogi
Are Web home pages "advertisements" subject to state rules on lawyer conduct?
Yes, say the bars of Florida and Texas, both of which have recently promulgated rules aimed at Internet advertising.
And most experts agree. There is a consensus among lawyers that law firm home pages are advertisements subject to bar regulation. But there is growing disagreement over whether states need new standards to govern this evolving medium, and, if so, just what those standards should be.
There has been broad criticism of the Florida and Texas rules, not so much because of their attempts at regulating the medium, but more because of what many lawyers believe to be the fundamental misunderstanding of the medium reflected in the rules.
Meanwhile, lawyers putting up home pages in other states face uncertainty as to which, if any, rules apply.
The Florida Rule
Florida became the first state expressly to regulate lawyer advertising on the Internet when its bar published an advisory statement Jan. 1, 1996. "Information that a lawyer makes available to the public about the lawyer or the lawyer's services via the Internet, or similar computer-based technology, is considered a form of lawyer advertising," the statement said. "Such `computer advertisements,' including law firm web sites or home pages, are subject to the Rules of Professional Conduct governing advertisements disseminated in the electronic media."
Which rules apply? According to the statement, Web sites may not:
In addition, Web sites must contain:
Most controversial, however, is the requirement that Web pages first be approved by the bar's Standing Committee on Advertising. The rule requires that the lawyer must file with the committee a hard copy print-out of the Web page, together with a statement of when and where the "ad" will appear and a $50 filing fee. The committee will then issue an advisory opinion as to the Web site's compliance with the advertising rules.
This requirement, lawyers say, reflects the committee's ignorance of the fluid nature of the Web and of emerging technology, such as Java, that makes a Web site incapable of being captured in a fixed, hard-copy form.
Apparently recognizing this, the committee concluded its statement by describing it as "an initial step in the area of lawyer advertising through the use of computers," and by recommending to the bar that it comprehensively consider this issue "by a group including representatives familiar with areas such as advertising, professional ethics, unlicensed practice of law and computer technology."
The Texas Guidelines
A week after the Florida Bar released its statement, the Texas State Bar's Advertising Review Committee approved "interpretive comments" regarding application of the Rules of Professional Conduct to home pages. As in Florida, Texas concluded: "Certain publications on the Internet or similar services are public media advertisements and are subject to the provisions of ... the Texas Disciplinary Rules."
Texas requires that a lawyer publishing a home page file a hard copy, including the URL, of the first screen that appears at the Web address and of any other screens that materially vary in format from the first screen. Texas will, on request, preapprove the first screen.
Lawyers need not file additional pages if they contain newsletters, news articles, attorney biographies, personnel announcements, seminar announcements, legal developments, and the like. If, however, there are additional pages that are "primarily concerned with solicitation of prospective clients," they must be filed.
The comments also emphasize that pages that need not be filed for review still must comply with other disciplinary rules, particularly with respect to containing disclaimers against unjustified expectations regarding the attorney's skills or the results to be achieved. The home page must, in all cases, disclose the location of the lawyer's principal office.
While no other state bar has expressly commented on the applicability of its lawyer-advertising rules to Web sites, efforts are underway in at least two states to begin to address the rules governing Web pages.
In Georgia, the state bar's Computer Law Section has convened a "Netethics" Committee. Its chairman, Atlanta lawyer Jeffrey R. Kuester, said he hopes that one of the committee's first efforts will be to propose new conduct rules tailored to advertising on the Internet.
"To try to just apply the print rules or the TV rules to the Internet doesn't work," he explained. "These rules were not intended to cover online usage by attorneys and therefore there is a lack of clarity as to how they would apply."
This lack of clarity, Kuester fears, will create a chilling effect among lawyers, discouraging them from using the Internet, as some are already doing, to share the wealth of knowledge they have at their disposal. This, he believes, would ultimately be a disservice to both lawyers and lay people. "My opinion is that lawyers and law firms have an enormous potential for benefitting both themselves and society through participating on the Internet."
Kuester proposes that advertising rules for the Internet distinguish between flagrant violations and all others. "If you are found to have flagrantly abused a rule, then the violations should be punishable from when you began. Otherwise, you are safe until you are notified by the bar that there is a concern with what you are doing." Such an approach, he suggests, creates a safe harbor for lawyers venturing onto the Internet.
In Iowa, Burlington lawyer David A. Hirsch has taken it upon himself to begin the process of adapting the state's strict lawyer-advertising rules to the Internet. Although his efforts enjoy no official sanction, he has received encouragement from a variety of lawyers in the state.
He was led to the rule-drafting table at least partly by his interest in establishing his own site on the Web. Iowa's advertising rules are among the strictest in the nation, Hirsch believes. "If you consider a Web page to be advertising, there are pretty narrow constraints about what you can put on the site and be confident you are complying with the rules. ... I was not willing to risk my career by putting up a Web page."
He was also encouraged to do something by other lawyers who called him to discuss their concerns about posting Web sites.
In drafting a rule for the Web, Hirsch's approach has been to draw a distinction between substance and advertising. "The Internet has the ability to assist the administration of justice when it is properly used to disseminate information that enhances the public's understanding of the judicial system. The Internet can also be abused by a lawyer if a Web site looks like a used-car sales pitch."
Once he completes his draft, Hirsch intends to post it on the Internet in order to elicit comments from other lawyers.
Is A Rule Necessary?
In Arizona, legislation has been filed that would identify what lawyers can and cannot do when communicating online with potential clients. Elsewhere, there appears to be little movement to adapt advertising rules to the Internet.
Some lawyers believe this is because there is no need to change the existing rules, suggests William E. Hornsby, Jr., staff counsel to the American Bar Association Commission on Advertising. Noting that the ABA has not undertaken any effort to rewrite the Model Rules to address Internet advertising, he adds, "This doesn't mean that the rules that exist don't apply."
"The ABA Model Rules govern advertising, marketing and solicitation," he explains. "Fundamental to those rules is that any of those communications not be false or misleading. It is no less a breach of ethics rules for a lawyer to mislead in an electronic brochure than in a print brochure."
The question, Hornsby says, is not whether the rules apply -- they do. The question is whether they need to be revised because of the introduction of a new medium.
Another who questions the need for new rules is Samuel Lewis, a lawyer in Hollywood, Fla., and moderator of the Internet mailing list, CompLaw. Although he is critical of the Florida bar's recent statement requiring prior approval of Web pages, he believes that the bar's mistake was not in applying a rule at all, but rather in applying the wrong rule.
The state's rules distinguish between advertisements such as those that might appear in a phone book or on TV and pamphlets such a lawyer might have in a waiting room. "The bar has taken the point of view that a Web page is an ad, the same as if you had put it in a phone book. What a lot of practitioners are upset about is that they believe a Web page is more like a pamphlet."
The solution for Florida, Lewis believes, is simply for the bar to apply the correct rule, not to write a new one. "The Internet, in terms of how it relates to practice, is a very recent phenomenon. There are many areas where the ethical guidelines don't provide enough direction -- e-mail is one. But a Web page is a good example of where the rules that exist are broad enough to encompass the technology brought on by the Internet."
Advice For Lawyers
The debate over Web advertising leaves many lawyers wondering what to do. The ABA's Hornsby advises lawyers posting Web sites, first and foremost, "to make sure you comply with whatever rules exist in the state where you practice."
A more complex issue is avoiding problems in other states, since Web sites are likely to be visited by people from all over. Hornsby suggests three approaches:
Georgia Netethics chair Kuester echoes this advice. "Follow your own state's advertising rules, and use your best judgment to not mislead or be deceptive or false."
Robert J. Ambrogi, a lawyer in Rockport, Mass., is editor of legal.online, a monthly newsletter about the Internet published by Legal Communications Ltd., Philadelphia. He can be reached by e-mail at email@example.com or by phone at (978) 546-7898.
Web Resources on Netvertising
For more information on how advertising rules apply to Web sites, visit:
$ Netethics Committee Home Page, http://www.kuesterlaw.com/netethics.
This committee of the Georgia State Bar has links to four articles that explore this and related topics.
$ Bureau of National Affairs, http://www.bna.com/hub/bna/legal/adnew.html.
This page has the full text of "How Do Advertising Rules Apply To Lawyers On The 'Net?" an informative article by Joan C. Rogers, legal editor of the ABA/BNA Lawyers' Manual on Professional Conduct.
$ West Publishing, http://www.wld.com/ldstate.htm.
As part of its Legal Directory, West provides a state-by-state summary of lawyer-advertising rules.