In the United States, attorneys are subject to their State Bar (attorneys' regulatory entity) advertising rules. United States (U.S.) attorneys are regulated by strict and detailed advertising rules that contrast with reduced advertising regulations imposed on attorneys in Civil Law Systems. Nonetheless, despite this heavy U.S. regulatory scheme lawyers" advertising is afforded First Amendment Constitutional protection as the U.S. Supreme Court case Bates v. State Bar of Arizona 433 U.S. 350 (1977) held. Since Internet has expanded advertising options for law firms and most Internet expressions enjoy First Amendment protection as well, the obvious concern is how attorney Internet advertising, in all its forms, is regulated? This article provides examples of some State Bar associations' policies on the issue of Internet advertising for attorneys.
Internet advertising comprises different forms; websites, e-mails, chat rooms, bulletin board, online banners, blogs, etc. Even though the specific regulation of attorney Internet advertising is still incipient, most State Bar associations have taken steps to control this practice. For instance, some have modified their attorneys advertising rules as to include computer access communications as a form of advertising, and others have issued ethical opinions regarding online advertising.
Chat Rooms & Real Time Communication Advertisement
Attorneys in most U.S. states may not solicit prospective clients through real time communications like chat rooms. Ethical opinions by the following State Bars have explicitly prohibit this type of Internet advertisement: Illinois 96-10; Michigan RI-276; Philadelphia 98-6; Utah 97-10; Virginia A-0110; West Virginia 98-03; and Florida Bar Ethical Opinion A-00-1, August 15, 2000. Some of these ethical opinions consider that attorneys' chat room advertising is analogous to unsolicited in-person or telephonic advertising. The West Virginia Disciplinary Board said:
"The Board is of the opinion that solicitations via real time communications on the computer, such as a chat room, should be treated similar to telephone and in-person solicitations. Although this type of communication provides less opportunity for an attorney to pressure or coerce a potential client than do telephone or in-person solicitations, real time communication is potentially more immediate, more intrusive and more persuasive than e-mail or other forms of writing. Therefore, the Board considers Rule 7.3(a) to prohibit a lawyer from soliciting potential clients through real-time communications initiated by the lawyer."
The Illinois State Bar Association went even further and considered that any computer communication succeeding chat room interventions (like e-mails) are prohibited Internet advertising,
"The Committee does not believe that merely posting general comments on a bulletin board or chat room should be considered solicitation. However, if a lawyer seeks to initiate an unrequested contact with a specific person or group as a result of participation in a bulletin board or chat group, then the lawyer would be subject to the requirements of Rule 4-7.3. For example, if the lawyer sends unrequested electronic messages (including messages in response to inquiries posted in chat groups) to a targeted person or group, the messages should be plainly identified as advertising material." Illinois 96-10.
Under the California Bar Association, chat room advertisement may not be a violation of improper solicitation rules. Yet, in certain cases they may violate other advertisement rules. Ethical opinion 2004-166 stated that attorney participation/advertisement in chat rooms visited by mass disaster victims is a violation of rule 1-400 (D)(5), which bans transmittal of communications that intrude or cause duress.
E-mail Advertising
Attorney e-mail advertising is an unsettled issue among U.S. State Bar Associations. As informed before, the Illinois State Bar Association bans e-mail advertising that follows chat room or bulleting board communications. The Florida Bar allows e-mail advertising as long as it complies with Rule 4.7.6(c). This rule requires that the e-mail includes the following information:
1. That the subject line includes the phrase "legal advertisement;"
2. The bona fide location(s) of the attorney's office(s); It must be the attorney who is going to render the service;
3. The requirements of rule 4.7.4 (b)(1), (b)(2)(A), (b)(2)(E), (b)(2)(F),(b)(2)(G), (b)(2)(I) and (b)(2)(J) related to communications sent on an unsolicited basis.
Websites as Advertisement
Most State Bar Associations are amending their advertising rules to include attorneys' websites as advertisement tools subject to regulation. For instance, The Florida Bar is currently proposing amendment of Florida Bar rule 4-7.6, which related to electronic communications. The proposal requires that attorneys' home pages be subject to the general requirements of rule 4-7.2, which relate to Communications Concerning Lawyers' Services. The amendment would allow attorneys' website to include testimonials and past results provided that proper declaimers are displayed. Attorneys would not be required to submit webpage information for Bar review as it is required for other advertisements.
Similarly, the New York Bar Association subjects websites to their advertisement regulations and prohibits false, deceptive or misleading advertisement on attorneys' WebPages. It also requires declaimers for the use of testimonials or past results in the attorneys' home page. Opinion 771 - 11/14/03 specifically says:
"A website advertisement that uses client testimonials or reports of past results is prohibited under DR 2-101(A) if the advertisement creates unjustified expectations, contains insufficient information, or is otherwise false, deceptive or misleading. If the client testimonials or reports of past results are not false, deceptive or misleading, a lawyer need not post a disclaimer that past results do not guarantee similar outcomes in future cases. If the advertisement is false or deceptive, a disclaimer cannot cure the false or deceptive nature of the advertisement. If client testimonials or reports of past results are misleading, an appropriate disclaimer may be sufficient to correct the misleading nature of the advertisement if the disclaimer is prominently placed in the website such that a lawyer reasonably would expect that any prospective client who reads the advertisement will read the declaimer."
The State Bar of California, Standing Committee on Professional Responsibility and Conduct considers that attorneys' website is a 'communication" under rule 1-400(A) of the Rules of Professional Conduct and an "advertisement" under Business and Professions Code sections 6157 to 6158.3. Thus, attorneys' websites in California are subject to the general state Bart advertisement rules for words, sounds and images. Formal Opinion No. 2001-155. This opinion also clarifies that attorneys' home page do not constitute ‘solicitation' even if it includes e-mail capabilities that facilitate communication between prospective clients and the attorney.
The above state bar policies accurately reflect the U.S. trend towards the different forms of Internet advertisement. The general rule is that attorneys' websites are considered ‘communications' and ‘advertisement' within the state advertisement rules; e-mails are treated as direct mailing advertisement and subject to the appropriate rules; and chat rooms, bulletin boards or real time communications are banned advertisement forms for the time being.