IX.A BRIEF REVIEW OF LEGAL ETHICS AND WEBSITES
A. A NEW WAY TO COMMUNICATE
For legal ethics purposes, a website is a new way to communicate. It combines text and pictures like print, but also has the mass media access availability of radio and the interactive elements of a personal meeting. In addition, the interaction is recipient initiated and huge amounts of information can be stored and quickly delivered. The combination of these formerly disparate elements mean that websites do not always fit within the ethical restrictions drafted for traditional media.
B. A VARIETY OF USES FOR LAW FIRM WEBSITES
Law firm websites are being used for matters that have been traditionally regulated such as descriptions of the firm, its attorneys and their practice areas. Other matters do not fit within traditional uses such as jumpsites of Internet hyper-text links or on-line seminars conducted at firm's website. Websites are being used to recruit employees, and, increasingly, as components in providing legal services to clients and the firm's own attorneys via passworded "extranet" sites. Unlike traditional physical media or linear electronic media where such activities were in physically separate objects or temporally separated all of these listed functions are normally jumbled together at the firm's website.
C. ETHICAL ISSUES IN A WIRED WORLD
The ethical issues that arise are numerous and frequently novel. To complicate a confusing situation, the people charged with enforcing the regulations frequently have no, or only a passing, familiarity with the Internet (dubbed the "digital homeless" by Nicholas Negroponte of the MIT Media Lab). As a result, the regulators often try to apply standards not to the Internet itself, but to ill-conceived analogies of how the Internet actually works.
The only thing that anyone can be sure about is that various state regulators will create a wide diversity of regulations and interpretations of how these regulations apply to the Internet. I have tried to highlight some of the issues, cases and rules that will shape the ethical regulation of websites.
[Unless otherwise noted, the following discussion is based on the Rules of the Professional Conduct as adopted in Connecticut.]
D. COMMERCIAL SPEECH OR PUBLIC DEBATE SPEECH?
Much of what appears on a good website should only be subject the most general of ethical regulation, because it is not commercial speech, but public debate speech that should have the full protection of the First Amendment. A clear example of this can be seen where an attorney puts up a book on a website. Efforts at pro bono publishing about the state of the law, probably cannot and should not be regulated. (See Texans Against Censorship Inc. v. Texas State Bar, 888 F.Supp. 1328 (ED Tex. 1995)) Attorneys have an obligation to educate the public about the law (See for example EC 8-3 of the Code of Professional Responsibility) and law firm websites are an excellent way to provide timely and readily accessible information to the public.
With websites, the commercial solicitation message may appear on the same page or even in the same paragraph with the protected First Amendment speech and thus may transform public debate speech into fully regulated commercial speech. (see Zauderer v. Office of Disciplinary Counsel, 471 U.S. (1985))
E. JURISDICTIONAL ISSUES
State ethical regulators, generally, only have the power to regulate those attorneys that are licensed in that state. There has been much discussion on the Internet as to whether rules applying to websites that have been created in particularly restrictive states such as, Iowa, Texas, Florida and California apply to all law firm websites, since these websites are available in these states as well as the rest of the world. Like nearly all ethical issues associated with law firm websites, no court has decided this issue. However, the better rule is that only attorneys licensed to practice in the jurisdiction are subject to the ethical rules of the jurisdiction.
An interesting question arises, where an attorney in a large metropolitan firm is licensed in a restrictive state like Texas and also licensed in the state where her office is located. Is the entire firm's website subject to the regulation of Texas because of this attorney? Texas should only seek to regulate the non- resident firm's website if the firm has significant and continuing representation of Texas citizens.
The issue of when an attorney is practicing in another state without a license, will become a very hot issue. Firms that take advantage of Internet technology and the resulting disintermediation will be able to deliver some types of legal services anywhere in the US at substantially cheaper costs than local firms. In addition email, websites, video-conferencing and other developing technologies mean that a local physical presence will be less of a factor in favoring local counsel. In many states, significant pressure will brought to bear on regulators and legislators to prevent unlicensed attorneys from "practicing" in the regulators' home state.
The unauthorized practice of law is usually a criminal offense (e.g. CGS 51-80 et seq). In addition the Rules prohibit an attorney from practicing in states where the attorney is not allowed to practice and an attorney cannot assist a person in the unauthorized practice of law (Rule 5.5). So trying to practice in a state where the attorney is not licensed will subject the attorney to that state's criminal statutes and his home states ethics board.
F. SENSITIVE ISSUES IN DEVELOPING AN ETHICAL WEBSITE
1. Rule 7.1 - No false or misleading statements
In creating a website be particularly careful about:
Ÿ Material misrepresentation or omission of fact Ÿ Unjustified expectation about results Ÿ Comparisons with other lawyers unless substantiated
The regulators have frequently examined any such claims very closely. Attorney statements that the FTC would consider puffery or permissible exaggeration in a commercial setting may subject an attorney to professional discipline. In most cases, such statements will be considered self-serving by a prospective client and even if the ethical standards did not prohibit such statements, good marketing would prohibit attorneys from making such statements on their own. Endorsements and testimonials are also likely to be regulated by the state's ethics rules.
An open question is whether a law firm can link its site to an article (for example on the New York Times website) that makes statements that the firm could not make directly.
2. Rule 7.2 - Advertising
Attorneys are allowed to pay for advertising and, therefore, they can pay for placing hot-links from websites such as Yahoo to their website. Attorneys are not allowed to pay for referrals, so any compensation arrangements that depend on the number of "click-throughs" to the website or the number of new clients should be carefully compared to your state's rules.
3. Rule 7.3 - Personal contact with prospective clients
States have a variety of different restrictions on solicitation and initiating personal contact with prospective clients. Since, prospective clients must contact a firm's website, a firm can not initiate contact solely through its website. Some people have argued that by including your website URL as part of your sig file (see VII.C.3. above) in a posting to a newsgroup or email listserv you are initiating personal contact. Even if this were to be the case, such contact would probably be allowed in Connecticut, since written communications are allowed except in situations where the person is suffering physically, emotionally, is under duress or has refused contact.
4. Rule 7.4 - Practice fields
Descriptions of practice fields are a sensitive area and your state's rules should be carefully reviewed. Be particularly careful about using the words "specialist" or "certified".
5. Rule 7.5 - Tradenames
States generally have rules about tradenames. If you plan to use a practice specific domain name such as malpracticelaw.com, you should carefully read your state's rules to see whether such domain names could be deemed to be a tradename and if so whether it would be allowed by your state.
6. Other areas
Posting results of specific cases on your website will attract regulators' attention and may require a disclaimer so that the unsophisticated know that their case may not have the same result.
An area that may be subject to minimal regulation is information directed to sophisticated organizations such as public corporations or directed to other attorneys. An attorney who does appellate work and does not accept work from individuals should not be as restricted in what sort of claims she can make, as an attorney who has put up a website on personal injury law.
G. BIBLIOGRAPHY
1. COURT CASES
a. Bates v. Arizona State Bar 350 U.S. 385 (1977) Legal advertising in electronic media have special problems
b. Zauderer v. Office of Disciplinary Counsel 471 U.S. (1985) Public debate linked to a product is still commercial speech
c. Shapero v. Kentucky Bar Association 486 U.S. 466 (1988) State can bar all in- person solicitation by lawyers for profit
d. Cincinnati v. Discovery Network Inc., 113 S.Ct. 1505 (1993) - Commercial speech purpose is to propose a commercial transaction
e. Texans Against Censorship Inc. v. Texas State Bar 888 F.Supp. 1328 (ED Tex. 1995) Content, not purpose of speech, determines whether it is commercial speech
f. Florida Bar v. Went For It Inc., 115 S.Ct. 2371 (1995) Permissible to prohibit solicitation of accident victims for 30 days
2. On-Line RESOURCES
a. www.legalethics.com
b. Kuesterlaw Ethics Center www.kuesterlaw.com/netethics
c. Web ethics mailing list archives - http://ftplaw.wuacc.edu/listproc/l egalethics-l/threads.html
d. Counsel Connect - Legal ethics forum and seminars
e. net-lawyers - http://ftplaw.wuacc.edu/listproc/ net-lawyers
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I. INTRODUCTION
II. OVERVIEW
III. THE IMPORTANCE OF TOP LEVEL DOMAIN NAMES FOR LAW FIRMS
IV. WHY CREATE A LAW FIRM WEBSITE
V. DEVELOPING A WEBSITE DESIGN STRATEGY
VIII. DISINTERMEDIATING AND RE-ENGINEERING THE LEGAL PROCESS
IX. A BRIEF REVIEW OF LEGAL ETHICS AND WEBSITES
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