Web Ethics: What have we learned?
Now that the dust of the Internet’s big bang has started to settle, we are getting a clearer idea of the application of ethics rules to marketing through technology. Many state bars and high courts have issued ethics opinions addressing areas of client development on the Internet. While these opinions are not binding, they do provide direction on the appropriate course of marketing legal services. Here’s a summary of what we’ve learned.
- The state ethics rules governing legal services marketing apply to marketing endeavors on the Internet, even if those rules were adopted before the Internet’s advent. So, for example, a rule that requires a written solicitation to be mailed first-class has been interpreted to mean that lawyers cannot solicit potential clients through e-mail.
- While the rules of most states permit e-mailed solicitations, subject to their rules, a few states have concluded that seeking clients through real-time chat rooms is akin to in-person solicitation and is impermissible. ABA Model Rule 7.3 was modified in 2001 to prohibit real- time electronic solicitations.
- States have generally concluded that lawyers may advertise on the Internet as long as they comply with the rules governing lawyer advertising. This means that a firm’s site must avoid being false or misleading and must comply with the state’s housekeeping rules. These rules may include state screening, site retention, disclaimer requirements and the naming of a lawyer who is responsible for the content of the site (although all lawyers in a firm are subject to disciplinary proceedings if the firm’s site is not in compliance).
- Firms do not have to use their names as domain names, but any message contained in the domain name must comply with the ethics rules, including the requirement that the name not be false or misleading, according to ethics opinions in a few states. Therefore, www.great estlawyer.com or www.winningcases.com would probably violate the rules in most states.
- Participation in online directories is generally acceptable, as long as the directory complies with the rules. Note that the directory publisher will never be disciplined, only the lawyers who participate. So it’s up to the lawyer to make sure the directory is in compliance.
- The states are split on participation in for-profit lawyer referral services. Most prohibit a lawyer to be involved if the participation is based on a division of fees with anyone who is not a lawyer.William E. Hornsby, Jr. (firstname.lastname@example.org) is Staff Counsel in the ABA Division for Legal Services.
Here are several resources to guide you in complying with your state rules.
• The rules of most states can be found at www.abanet.org/adrules. Many state bar associations also provide access to ethics opinions. The state bars are listed at www.abanet.org/barserv/stlobar.html.
• Legalethics.com is an excellent resource highlighting the ethics of technology, with links to the most significant state ethics opinions. It’s at www.legalethics.com.
• Read Marketing and Legal Ethics: The Boundaries of Promoting Legal Services, 3rd edition, by William E. Hornsby, Jr. ABA Law Practice Management Section, 2000.