General Practice, Solo & Small Firm DivisionSolo Newsletter

SPRING 1999 ISSUE

E-mail, Marketing, and Ethics: The Ultimate High-Wire Act

By Susan B. Ross

E-mail is a powerful communications tool, and the ways in which attorneys use it for marketing are limitless. Some simply include the address on their business cards. Others include e-mail links on their firm Web sites. Some get a bit more sophisticated.

For example, including a signature block at the end of every e-mail sent out is a means of getting your firm’s name circulated. Regular participation in online discussion forums, such as List Serves, is another means of getting your name or your firm’s recognized. And some firms send electronic newsletters to their clients on a monthly or quarterly basis.

Although e-mail is a low-cost method to network and market, not all uses are effective, welcome, or ethical. At least one attorney has been disciplined for sending junk e-mail to thousands of List Serves and newsgroups. Some states have passed anti-spam legislation, and Congress also is considering the issue.

Participating in online discussion forums may make for effective networking, but doling out legal advice in such a public forum may violate ethics rules or may form an unintended attorney-client relationship.

What is a lawyer to do?

• If you use e-mail to communicate with clients, check it as frequently as you check your voice mail.

• The advertising rules, including the prohibitions on false and misleading information and the requirement to save copies of ads, apply online.

• Do not say anything in any online discussion forum that you would not say in a public seminar.

• Keep track of state and federal legislation that may impact your use of e-mail.

• Obtain client permission before sending electronic newsletters or other mailings.

• And learn about netiquette — the rules of etiquette on the Internet. Check out www.albion.com/netiquette or www.dtcc.edu/cs/rfc1855.html. Offending your clients online is no different than offending them offline.

Another issue is that the Internet transcends state and federal boundaries. Concerns have arisen that use of Internet applications, such as e-mail and List Serves, may lead to the unauthorized practice of law. In addition, as soon as state jurisdictional lines come into play, the choice of law issue arises. How an attorney who is licensed in multiple jurisdictions or a multi-state law firm handles these jurisdictional complications is unclear.

Although the current ethical rules do not provide clear-cut answers in some online situations, and determining appropriate online behavior might appear as the ultimate high-wire act, such quandaries are not new to the legal profession. Learning to use the Internet and e-mail within the confines of the rules of professional responsibility is the same balancing act that attorneys have to perform in every other area of their practices. Understanding how the rules apply online may take some research, but the research will be well worth the effort: the Internet is here to stay.

For more information on ethics and the Internet check out Peter Krakaur’s Legalethics.com at www.legalethics.com.

Susan B. Ross, an attorney and engineer, is an associate in the Telecommunications, Electronic Commerce, and Intellectual Property practice group of Piper & Marbury L.L.P. She can be reached at 202/861-3887 or sross@pipermar.com.

 

 

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