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...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 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.
II. LAWYER ADVERTISING IS COMMERCIAL SPEECH
A. 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 with the Model Code of Professional Responsibility. (41) As initially promulgated, the Model Code completely proscribed lawyer advertising on television, and targeted mail solicitation and any form of "undignified" advertising. (42) The Model Code essentially consisted of two tiers: ethical considerations and disciplinary rules. (43) The Code, as amended, included twenty-five permissible categories of information that lawyers could include in written advertisements concerning the lawyers' services. These categories included a lawyer's name, fields of practice, dates and places of admission to state and federal bars, fees for initial consultation, and range of fees for services. (44)
B. Lawyer Advertising and "Bates"
A test of the states' authority to completely ban lawyer advertising came in Bates v. State Bar of Arizona. (45) In Bates, the U.S. Supreme Court extended partial First Amendment protection to advertising by licensed lawyers. (46) Bates involved an Arizona State Bar Association disciplinary rule (47) restricting advertising by attorneys. (48) Specifically, the Court considered two issues: whether sections 1 and 2 of the Sherman Act (49) prohibited state regulation of lawyer advertising, and whether imposing and enforcing the Arizona rule violated the First Amendment. (50)
The appellants in Bates, two lawyers admitted to the Arizona Bar, opened a law office which they called a legal clinic, and placed an advertisement in a daily newspaper of general circulation in their metropolitan area. (51) The advertisement listed the types of matters the lawyers handled, such as uncontested divorces and adoptions and the fees the lawyers charged for these matters. The advertisement also stated that the lawyers provided "legal services at very reasonable fees[.]" (52)
Following a hearing on the complaint initiated by the president of the State Bar, a special local administrative committee recommended that the lawyers "be suspended from the practice of law for not less than six months." (53) Pursuant to Arizona Supreme Court Rule 36, the Board of Governors for the State Bar reviewed the committee's recommendation and determined that a one-week suspension for each appellant, to run consecutively to one another, was an appropriate sanction. (54)
On appeal to the Arizona Supreme Court, the lawyers contended that DR 2-101 (B) violated sections 1 and 2 of the Sherman Act and that the disciplinary rule infringed their First Amendment rights. (55) The court, however, concluded that the regulation was exempt from the Sherman Act and did not violate the lawyers' First Amendment rights . (56)
The U.S. Supreme Court agreed that the lawyers' Sherman Act claim was barred. (57) However, the Court reversed the Arizona Supreme Court on the First Amendment claim and held that although the state may impose certain limitations on advertising by licensed lawyers, it may not subject lawyer advertisements to "blanket suppression." (58) The U.S. Supreme Court has stated that commercial speech is an "expression related solely to the economic interests of the speaker and its audience." (59) Emphasizing that lawyer advertising is a form of commercial speech, the Bates Court held that "truthful advertisement concerning the availability and terms of routine legal services ... may not be restrained." (60)
Prior to analyzing the legal issues presented in Bates, the U.S. Supreme Court set forth a detailed summary of its decision from the preceding term in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, (61) which concerned advertising by licensed pharmacists. (62) In Virginia State Board of Pharmacy, the Court held that a Virginia statute subjecting pharmacists to a monetary penalty or suspension or revocation of their licenses for advertising prescription drug prices violated the First Amendment. (63)
Relying on the Supreme Court's reasoning in Virginia State Board of Pharmacy, the Bates Court reiterated the important role of commercial speech and the free flow of information to consumers and society: "[C]ommercial speech serves to inform the public of the availability, nature, and prices of products and services, and thus performs an indispensable role in the allocation of resources in a free enterprise system ... [S]uch speech serves individual and societal interests in assuring informed and reliable decision-making." (64) The Virginia State Board of Pharmacy Court expressly declined to consider the question of whether its rationale applied to advertising by other professions such as lawyers and physicians. (65) Nonetheless, pursuant to the standard commercial speech doctrine, it remained clear that states could freely regulate false, misleading or deceptive advertising and in-person solicitation. (66)
C. Lawyer Advertising Post-- "Bates"
Following the Bates decision, it was indisputable that lawyer advertising is a form of commercial speech and that states could regulate lawyer advertising to protect their consumers against false, misleading and deceptive advertising but could not completely ban lawyer advertising. (67) Non-commercial speech, with few exceptions, enjoys full protection under the First Amendment. (68) In contrast, commercial speech enjoys only partial protection under the First Amendment. (69) Thus, with little guidance from the Court, states and the ABA were forced to promulgate new regulations for lawyer advertising consistent with Bates. (70)
In 1983, in an effort to create a national standard for legal ethics, the ABA replaced the Model Code with the Model Rules of Professional Conduct (the "Model Rules"). (71) Furthermore, the ABA urged states to adopt the Model Rules. (72) Since the Model Rules' promulgation in 1983, the District of Columbia and 42 states have adopted some version of the Rules. (73) A few states continue to follow some version of the Model Code, while California lawyers are regulated by a completely different system. (74) Only 9 of the 43 jurisdictions that have adopted the Model Rules have done so without modification. (75) The remaining 34 jurisdictions have adopted the Model Rules after modification. (76)
There have been significant differences in the versions of Model Rules adopted by the states. (77) This lack of uniformity has been compounded further by the numerous ABA amendments made to the Model Rule between 1983 and 1997. (78) However, at least one commentator has argued that, with the exception of the provisions governing advertising, solicitation and client confidentiality, there is little difference among the state rules. (79) The fact that the rules governing advertising and solicitation vary dramatically from state to state, merely bolsters the argument in support of uniform standards. The Model Rules, as drafted, did not contemplate Internet advertising but were intended to govern printed advertising. (80) Nonetheless, the manner in which the Model Rules treat printed advertising is instructive and offers a basis for developing uniform guidelines in lawyer advertising via electronic communication, including Internet websites.
In July 1998, the ABA Commission on Advertising released a report entitled A Re-Examination Of The ABA Model Rules of Professional Conduct Pertaining to Client Development in Light of Emerging Technologies ("ABA White Paper") to address some of the ethical issues raised by the use of electronic communication to disseminate information concerning lawyers' services. (81) The focus of the ABA White Paper is lawyers' use of the World Wide Web and e-mail. (82) The ABA White Paper considers the Internet as a medium increasingly used to deliver legal services and concludes that "in light of new and emerging client development initiatives undertaken through various aspects of the Internet demonstrates a need to revise those portions of the rules that govern these activities." (83) While acknowledging its stated purpose of generating dialogue on the issues discussed, the White Paper closes with recommendations to modify the rules governing lawyer communications to encompass use of emerging technologies in delivering legal services. (84)
Since the decision in Bates, the U.S. Supreme Court has defined commercial speech as "an expression related solely to the economic interests of the speaker and its audience" (85) and has emphasized that "speech that does no more than to propose a commercial transaction is protected by the First Amendment." (86) "Commercial speech that is not false or deceptive and does not concern unlawful activities, however, may be restricted only in the service of a substantial governmental interest, and only through means that directly advance that interest." (87) Where non-commercial speech is intertwined with commercial speech, it is unclear whether courts will give the communication full First Amendment protection. (88) Where possible, the court will separate non-commercial speech from commercial speech. (89) Where the communication is inextricably intertwined courts may grant full First Amendment protection (90) in some cases and only partial protection (91) in others. With respect to lawyer and law firm websites, parts of the sites may be purely informational while the remainder may propose a commercial transaction. However, "It]hose aspects that are not commercial are unlikely to elevate those which are to full First Amendment protection as long as the information can be segmented." (92)
Among the recommendations in the ABA White Paper is the suggestion that Model Rule 7.1 be modified to address confusion created concerning application of that rule to commercial versus non-commercial speech by deleting the reference to "information about the lawyer" and retaining "information about the lawyer's services." (93) The Commission further suggests that the comment to this section be modified to include a definition of commercial speech and a standard for intertwined speech clarifying "that if it is inextricably intertwined, it will enjoy full First Amendment protection, but if it is merely intertwined, the entire communication will be regulated as commercial speech." (94) Alternatively, the Commission suggests that the dichotomy between commercial and non-commercial speech can be clarified by developing a preamble to Section Seven of the Model Rules. (95) Even if the ABA were to adopt these measures to clarify the definition of commercial, however, states remain free to define commercial speech as they choose, so long as their definition comports with that of the U.S. Supreme Court.
D. Ethics 2000 Report and Proposed Changes to Lawyer Advertising Rules
More recently, the ABA Commission on Evaluation of the Rules of Professional Conduct completed a multi-year study of the Model Rules. (96) Commencing in 1997, the ABA sought to address the lack of uniformity in state regulation of lawyers, as well as the lack of clarity and substantive problems in the Model Rules. (97) The ABA also attempted to address some of the issues presented by emerging technology in the practice of law. (98) The Commission analyzed rules governing professional conduct in state and federal jurisdictions and formulated recommendations for adoption, the final draft of which was issued in January 2001. (99) For the first time, the ABA included in its proposed revisions to the Model Rules ("proposed Model Rules") a specific reference to electronic communication as an acceptable means for lawyers to communicate with non-lawyers, including advertising. (100)
In August 2001, during its annual meeting in Chicago, the ABA House of Delegates (101) began to consider the Commission's proposed changes to the Model Rules. (102) Members of the House of Delegates must consider and take action on approximately 50 proposed changes to the Model Rules before the Ethics 2000 Report can be formally adopted at which time these rules, as revised, become official ABA policy. (103) In the meantime, however, the House of Delegates took action on a few of the Commission's proposed revisions and will continue its deliberations at the midyear meeting in Philadelphia later in 2001. (104) Some of the proposals adopted thus far shed light on the likely direction of the House of Delegates' work.
1. Proposed Model Rule 7.1--Communications Concerning Lawyer's Services
With respect to communications concerning legal services, proposed Model Rule 7.1 expressly prohibits a lawyer from making a false or misleading communication. (105) The rule further provides that "[a] communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading." (106) Currently, ethical rules in all 50 states prohibit false and misleading advertising.
2. Proposed Model Rule 7.1--Advertising
Subsection (a) of proposed Model Rule 7.2, which governs advertising, provides that a lawyer may advertise legal services through "written, recorded or electronic communication, including public media." (107) Here, it appears that the Commission has explicitly expanded the scope of the rule by including "electronic communication" rather than relying on the "catch-all" category of public media. (108) Subsection (b) of proposed Model Rule 7.2, in substance, is identical to current Model Rule 7.2(c), which permits a lawyer to pay reasonable costs for advertising, or usual charges in connection with non-profit lawyer referral services or legal services organizations. (109) The requirement that lawyers retain copies of all advertisements for two years is omitted from the proposed Model Rules. (110) As emerging technology is increasingly used to advertise legal services, lawyer and law firm communications are accessible in jurisdictions where they do not maintain an office. (111) Under these circumstances, the record retention requirement for a reasonable period of time should be retained.
Comment 2 of proposed Model Rule 7.2 sets forth a list of information that may be included in legal advertising:
This Rule permits public dissemination of information concerning a lawyer's name or firm name, address and telephone number; the kinds of services the lawyer will undertake; the basis on which the lawyer's fees are determined, including prices for specific services and payment and credit arrangements; a lawyer's foreign language ability; names of references and, with their consent, names of clients regularly represented; and other information that might invite the attention of those seeking legal assistance. (112)
Proposed Model Rule 7.2(c) mandates that "[a]ny communication made pursuant to this rule shall include the name and office address of at least one lawyer or law firm responsible for its content." (113) These disclosures will enable disciplinary authorities to locate persons responsible for the advertisement and to inform the public of the lawyer's or law firm's office location. (114) In comment 3 to Proposed Model Rule 7.2, the Commission acknowledges the subjective nature in determining whether a particular advertisement is dignified and effective. The Commission also recognizes that television and, for the first time, the Internet are important media to deliver information and legal services to the public. (115)
3. Proposed Model Rule 7.3--Direct Contact with Prospective Clients
With respect to in-person solicitation of prospective clients, the U.S. Supreme Court has upheld state regulations restricting direct solicitation of prospective clients known to have been in need of legal services for a particular matter. (116) Proposed Model Rule 7.3(a) provides that a "lawyer shall not by in-person, live telephone or real-time electronic contact solicit professional employment from a prospective client when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain...." (117) The Commission, in agreement with the ABA Commission on Responsibility in Client Development, distinguishes real-time electronic communications such as Internet chat-rooms from e-mail on the basis that real-time communications present the same dangers as live telephone contact. (118)
When targeting solicitations for legal services to prospective clients, a lawyer must identify the communication as "Advertising Material" either on the outside of the envelopes, or at the beginning and ending of "any recorded or electronic communication," unless the persons targeted fall within a class of persons identified in subsections (a)(1) and (a)(2). (119) Restricting a lawyer's direct in-person, telephone or real-time electronic contact with prospective clients is necessary to avoid undue influence and over-reaching and is consistent with the U.S. Supreme Court's view of in-person solicitation. (120)
4. Proposed Model Rule 7.4--Communication of Fields of Practice and Specialization
Proposed Model Rule 7.4 permits a lawyer to state that he is a certified specialist in a particular field of law if the "certification is granted by an organization approved by an appropriate state authority or accredited by the American Bar Association or another organization, such as a state bar association, that has been approved by the state authority to...
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