The Internet is becoming the primary manner in which some attorneys serve clients. States have already taken differing views on whether it is acceptable for an attorney to engage in electronic representations of clients. Thus, determining what jurisdiction's law applies to such attorney conduct can be very important in deciding whether this activity constitutes the unauthorized practice of law and, if not, determining the exact duties of an attorney in such representations.
This Article argues that the current version of Model Rule of Professional Responsibility 8.5(b), which governs choice of ethics law, can be interpreted to apply the legal ethics rules of the state in which the attorney is located to all electronic representations. The dormant commerce clause, however, prohibits a state from regulating activity that does not occur or have a significant effect in its physical boundaries. It is not clear that the state in which the lawyer is located has a significant enough interest, under a dormant commerce clause analysis, to prohibit, or even regulate, this type of representation in most situations. Often, the effect of an electronic representation will be born wholly by the other state where the client is located, and this state's ethical regime would be ignored under the likely interpretation of Model Rule 8.5(b)(2).
Therefore, jurisdictions should either eliminate the language from the rule that results in the application of the ethics regime of the attorney's home jurisdiction in all situations or define key terms in the rule to focus the analysis on the location of the client affected and the jurisdiction where the legal advice provided is acted upon. Either option will allow for the application of the ethics rules of the jurisdiction where the client is physically located when the most significant effect from the representation is felt in the client's home jurisdiction. Because this state has a much more significant interest in protecting the resident client from potentially damaging legal representations, this jurisdiction more properly should determine the manner in which attorneys can represent its residents and whether any constraints should be placed on electronic representations.
INTRODUCTION ................................................. 589
I. THE GROWTH OF E-LAWYERING ................................ 593
A. The Different Types of E-Lawyering .......................... 593
B. Demand for E-Lawyering .................................. 595
C. Formation of Attorney-Client Relationship Through E-Lawy ering ..598
II. HISTORICAL TREATMENT OF CHOICE OF LEGAL ETHICS LAW BY MODEL CODE AND MODEL RULES ..................................... 605
A. Model Code of Professional Responsibility and the Original 1983 Version of Model Rule 8.5 .................................. 605
B. 1993 Version ofModelRule 8.5 ............................. 607
C. 2002 Version ofModelRule 8.5 ............................. 610
III. CASE LAW AND ETHICS OPINIONS AIDING IN INTERPRETING THE CURRENT LANGUAGE OF MODEL RULE 8.5(B)(2) ................... 612
IV. THE DORMANT ASPECT OF THE COMMERCE CLAUSE ................ 620
V. APPLICATION OF THE DORMANT COMMERCE CLAUSE TO STATE REGULATION OF THE INTERNET ................................. 624
A. Case Law Applying Dormant Commerce Clause to State Regulation of Internet Activity .............................. 624
B. Reconciling the Cases Dealing with State Regulation of the Internet According to the Degree of Anonymity and Interactivity of the Particular Internet Communication Affected by the Applicable Regulation ..................................... 635
VI. DORMANT COMMERCE CLAUSE ANALYSIS OF CURRENT ABA CHOICE OF ETHICS LAW RULE, MODEL RULE 8.5(B)(2), WHEN APPLIED TO E-LAWYERING .............................................. 638
A. The Burden on E-Lawy ering of Complying with Different State Ethical Regimes .......................................... 640
B. The Benefits to Potential Jurisdictions of Applying Their Ethical Regimes to E-Lawyering ................................... 642
1. Interest of Jurisdiction Where Client Resides in Regulating Electronic Representation ............................... 643
2. Lack of Interest of Attorney's Home Jurisdiction in Applying Its Ethics Law to an Electronic Representation that Affects a Resident of Another State ............................... 647
C. The Safe Harbor Language of Model Rule 8.5(b)(2) Invalidates the Choice of Ethics Law Rule Under the Dormant Commerce Clause Because It Allows the Ethics Laws of the Attorney's Home Jurisdiction to Apply to All Electronic Representations ............ 649
CONCLUSION .................................................. 651
The global nature of the Internet and the jurisdictional limitations on the practice of law following geographical boundaries raise troubling issues for lawyers of regulatory compliance, jurisdiction and choice of law.1
The Internet has changed the manner in which attorneys serve and procure clients. For example, e-mail now allows attorneys to respond to clients more quickly and with less cost.2 Attorneys now can also file a document electronically in many courts.3 Additionally, the World Wide Web (the "Web") allows attorneys to market themselves on a more widespread basis through law firm Web sites.4 The marketing of legal services on the Web has become so pervasive that several freestanding Web sites now exist with the purpose of matching potential clients with attorneys.5 Often, allowing people to make their initial inquiry to an attorney through an e-mail or a client intake form provided on a Web site eases an attorney's screening of potential clients.6
In a more dramatic development, the Internet is becoming the primary or, in some cases, sole manner in which particular attorneys serve clients. Some of the Web sites designed to match clients with attorneys also allow attorneys to provide legal advice to clients directly through the site.7 On Internet "bulletin boards" or "newsgroups," potential clients post questions seeking legal advice under various legal topics, and attorneys can provide legal advice by posting a reply. The potential also exists for attorneys to participate in Internet "chat rooms" where they would respond in real time to posts seeking legal information.8 In addition to these third party operated Web sites, some attorneys are developing practices where they communicate with clients solely through their firm Web site or e-mail.9
Electronic representations of clients, or what this Article loosely terms "elawyering," are part of a larger, emerging trend in the legal profession to segment or "unbundle"10 legal services in an attempt to serve the largely unmet legal needs of people with moderate to low income. ' ' In the past, states have had differing views on the acceptability of nontraditional forums for attorneys to provide advice to clients. 12 States already have taken differing views on whether it is acceptable for an attorney to engage in electronic representations of clients.13 Furthermore, practices in which attorneys predominantly use the Internet to communicate with clients allow attorneys to more easily represent people that are physically located in other jurisdictions where the attorney may not have a license to practice law. Therefore, determining which jurisdiction's law applies to such attorney conduct can be very important in deciding whether this activity constitutes the unauthorized practice of law.14 Even if some states allow such representations, those states may afford clients with different protections and require attorneys to take different precautions when involved in an electronic representation of a client. Consequently, the particular jurisdiction's ethics rules that apply to such electronic representations is important in determining the exact duties of an attorney.
The American Bar Association ("ABA") recently amended the Model Rules of Professional Conduct ("Model Rules") to deal with various attorney multi-jurisdictional practice issues, including Model Rule 8.5(b), which governs choice of ethics law.15 Given how courts and state ethics committees have construed prior versions of Model Rule 8.5(b),16 the current language of Rule 8.5(b) is susceptible to an interpretation that applies the legal ethics rules of the state in which the attorney is located to all electronic representations.17 This raises concerns under the "dormant" aspect of the Commerce Clause.
The dormant commerce clause prevents states from promulgating legislation or regulations that frustrate or inhibit trade between states, even in the absence of congressional legislation.18 When a state's regulations prohibit activity that does not occur or have significant effects within its physical boundaries, this often violates the dormant commerce clause.19 If in the context of Internet representations courts construe Model Rule 8.5(b)(2) always to apply the legal ethics rules of the state in which the lawyer is physically located, it is not clear that state has a significant enough interest, under a dormant commerce clause analysis, to prohibit, or even regulate, this type of representation in most situations.20 This occurs because often the effect of an electronic representation will be born wholly in the other state where the client is located, and this is the state whose ethical regime would end up being ignored under the likely interpretation of the current language of Model Rule 8.5(b)(2).21
A more sound choice of ethics rule under the dormant commerce clause would be to use the current language of Model Rule 8.5(b)(2) without the safe harbor language that will result in the application of the ethics regime of the attorney's home jurisdiction in all situations. Another option would be to retain the safe harbor but define key terms in the rule to focus the analysis on the location of the client affected by the legal representation and the jurisdiction where the legal advice provided in the representation is acted upon and takes effect. Either option would allow for the application of ethics rules of the jurisdiction where the client is physically located in situations when the most significant effect from the representation is felt in the client's home jurisdiction.
This state has a much more significant interest in protecting the resident client from incompetent and potentially damaging legal representations.22 Consequently, this jurisdiction more properly should determine the manner in which attorneys can represent its residents and whether any constraints should be placed on circumscribed and non-traditional representations if it decides to allow them at all. In this manner, the state of the client's residence, more often than not, would balance the risks of this more limited type of Internet legal representation against the potential to more effectively meet the legal needs of moderate and low income residents.
I. THE GROWTH OF E-LAWYERTNG
A. The Different Types of E-Lawyering
Attorney conduct on the Internet can occur in four main contexts: in chat rooms, on bulletin boards, through a law firm Web site, or through e-mail communications. In some electronic representations of a client, an attorney might even engage in a combination of these activities. Activity in an Internet chat room or on an Internet bulletin board involves a potential client posting a question seeking advice on a particular legal topic and then receiving responses in subsequent posts from other individuals who have registered with the Web site.23 After receiving a response, the person making the initial post then can respond to questions presented in the subsequent posts or ask for clarification of information that others have provided. On some sites, such as on FreeAdvice.com, the person making the initial legal inquiry is required to indicate the jurisdiction in which they are located.24 Some Web sites providing chat rooms or bulletin boards are free to visitors of the site, while others charge a fee to users of the site.25 Often such sites provide other services such as a directory of attorneys in a particular area.26
The difference between an Internet chat room and an Internet bulletin board is that the communications in the chat room occur in real time. Thus, the posts in a chat room occur very rapidly, one after another. On an Internet bulletin board, posts occur more slowly over several hours or even days. Therefore, the amount of time in which an attorney would have to consider a potential client's post and then form and post an answer to a request for legal information would be much quicker in a chat room than on an Internet bulletin board.
In addition to communicating with potential clients in chat rooms or bulletin boards, some attorneys are engaging in electronic lawyering in a more formal manner by allowing clients to communicate with an attorney through a particular part of the firm's Web site or filling out a potential client intake form on the firm Web site or a Web site run by a third party.27 Some Web sites allow clients to fill out their own legal forms in a "decision-tree format" and then have an attorney review the documents before the clients receive the documents.28 Other sites allow clients to question attorneys on discrete questions for a flat fee.29
Furthermore, some attorneys are engaging in more traditional practices where the attorney provides a fuller array of legal services but all of the communications with a client occur through the firm Web site or through e-mail.30 Some attorneys are finding that such practices are more efficient and also allow them to find new clients without having to battle for clients in a more limited and immediate geographic area.31 However, engaging in such representations increases the likelihood that the client will be located in a different jurisdiction and have a legal question pertaining to the law ofthat particular jurisdiction rather than the law of the jurisdiction in which the attorney is located and licensed.32
B. Demand for E-Lawyering
The demand for legal services delivered over the Internet springs from the great, unmet need for legal representation of poor and moderate income Americans. As far as citizens of little means are concerned, legal services offices are only able to address "less than a fifth of the needs of eligible clients."33 Of the poor who are able to obtain legal assistance through such offices, many "must wait over two years before seeing a lawyer for matters like divorce," which do not qualify as emergencies.34 Furthermore, such services are not available at all for many people "just over the poverty line" who cannot afford an attorney but who do not meet income eligibility requirements.35
With regard to the middle class, one survey indicated that less than half of moderate income households with a legal need actually consulted an attorney.36 According to the same survey, less than forty percent of moderate income households used the courts to address their legal problems.37 Almost a quarter of the households surveyed handled the problem on their own while a little over a quarter took no action at all.38 Moreover, "[t]wo-thirds of surveyed Americans agree[d] that it [was] 'not affordable to bring a case in court.'"39 Another survey conducted in Maryland indicated that almost three-quarters of the people in the middle class "no longer contacted] an attorney when faced with a legal problem."40
The lack of affordability of legal counsel has resulted in a large increase in the number of people filing cases pro se.41 Especially in the areas of housing, bankruptcy, and family law, as well as in small claims court, more people than not handle their lawsuits without using an attorney.42 "In some jurisdictions, over four-fifths of these matters involve self-represented 'pro se' litigants."43 This increase in self-representation further enhances individuals' dissatisfaction with the legal system. Only approximately one-half of people of middle income were happy with the result when they handled their legal problems on their own, and only one-third of the individuals who took no action were pleased with the result.44 This contrasts with the two-thirds of people satisfied with the outcome among those who consulted attorneys to deal with their legal problems.45
One effort to address the unmet legal needs of so many Americans has been to develop technological solutions.46 The use of Internet representations is one way in which technology can help middle and low income individuals obtain some degree of legal advice instead of addressing their legal problems wholly on their own.47 Many types of e-lawyering that currently exist represent part of a larger attempt to serve unmet legal needs by "unbundling" legal services.48 Under such arrangements, an attorney agrees with a client to complete discrete legal tasks rather than carrying out a whole case from beginning to end.49 The idea is that many people who now proceed prose, or opt out of the legal system altogether, would be able to afford and would use reasonably priced limited representations if this were an option.50 The ABA recently modified the Model Rules to better allow for such discrete task representations,51 and more and more state disciplinary authorities are formally approving such representations.52 Therefore, providing limited legal advice to clients over the Internet potentially could become an important part of the effort to satisfy unmet legal needs through the unbundled or discrete task representation model.
C. Formation of Attorney-Client Relationship Through E-Lawy ering
When attorneys interact over the Internet in a more limited manner with potential clients, such as in an Internet chat room or on a bulletin board, the issue arises of when the interaction between the attorney and the potential client forms an actual attorney-client relationship. This is important because if an attorney-client relationship is not formed, several of the ethical obligations owed to a client will not apply.53 Consequently, one jurisdiction's ethics opinion on electronic representations advises attorneys to post disclaimers stating that an attorney-client relationship is not created through the activity on the Web site concerned.54 However, Professor Catherine Lanctot has concluded that such disclaimers will be ineffective if the subsequent activity of the attorney and client indicates that the parties actually have formed an attorney-client relationship.55
Moreover, Professor Lanctot concludes that much of the activity that occurs attorneys and clients in chat rooms and bulletin boards would be sufficient to form an attorney-client relationship.56 Generally, an attorney-client relationship arises when: (1) an individual manifests an intent for an attorney to provide legal services to them; and (2) that attorney either (a) manifests to the individual an intent to provide the legal services or (b) the attorney "fails to manifest a lack of consent" to provide the legal services to the individual when the attorney knows, or under the circumstances reasonably should know, that the individual "reasonably relies on the lawyer to provide the services."57
Much of the activity on Internet chat rooms and bulletin boards likely will form an attorney relationship in the following manner. First, the site user posts a legal question manifesting an intent to have a lawyer perform legal services, specifically by asking for legal advice and a recommendation on a course of action given the facts of the poster's situation.58 Second, an attorney manifests his or her intent to perform the requested legal services by actual performance, particularly by providing specific legal advice in response to the original user's post.59 Alternatively, an attorney could form an attorney-client relationship by posting a reply to the original site user's post knowing that the user will rely on the legal advice provided.60 Thus, as long as the attorney is providing legal advice specifically tailored to the user's situation, an attorney-client relationship will be formed.61 Moreover, even if an attorney limits the objectives in the representation, this does not do away with the obligations that an attorney owes a client with regard to those specific objectives.62
Even if an attorney-client relationship is not formed, an attorney may still owe certain duties of confidentiality and loyalty to prospective clients. With regard to information learned from a prospective client in the initial consultation, Model Rule 1.18 states that an attorney owes a prospective client the same duty of confidentiality owed to former clients.63 The attorney also cannot represent someone with materially adverse interests to the prospective client in "the same or a substantially related matter" if the attorney received "significantly harmful" information from the prospective client.64 The rule further imputes this disqualification to other members of the attorney' s firm.65 An attorney' s firm can avoid disqualification if the attorney "took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client," the attorney is appropriately screened, the attorney receives no part of the fee from the matter, and the prospective client receives written notice.66 Disqualification alternatively can be avoided if the attorney receives written "informed consent" from both parties concerned.67 Comment 5 to the rule further states that an attorney can avoid disqualification if the attorney expressly conditions discussions with the prospective client upon that individual' s "informed consent that no information disclosed during the consultation will prohibit the lawyer from representing a different client in the matter."68 An attorney can avoid the duty of confidentiality if the client expressly agrees to the attorney's "subsequent use of information received from the prospective client."69
Therefore, when an attorney has contact with an individual seeking legal advice over the Internet, he or she potentially can avoid incurring the obligations owed to prospective clients in one of two ways. First, the attorney can make sure that he or she initially learns only enough information to engage in a proper conflicts check regarding the matter. Such information could be restricted to the potential party names, any other significant actors concerned in the matter, and the general subject matter of the representation.70 Presumably, this will decrease the chance that the attorney will receive "significantly harmful" information before discovering that a conflict with a current or previous client exists.71
Second, the attorney could have the prospective client expressly consent to waive the obligations that Model Rule 1.18 imposes. On an intake form on a firm Web site, this could be accomplished by requiring the prospective client to click on a button directly under language waiving these obligations before the individual's information would be transmitted to the law firm.72 However, language simply disclaiming any "attorney-client relationship" or "confidential relationship" may be insufficient to do away with the Rule 1.18 obligations.73 Instead, one state's ethics committee has stated that, to be effective, a waiver must be written in "plain-language" and expressly state that "the [attorney] will have no duty to keep confidential the information" transmitted by the prospective client.74 Therefore, unless an attorney acts proactively to either limit the amount of information received or to have the individual seeking legal advice waive such obligations under express and plain language, an attorney that has contact with an individual seeking legal advice through the Internet at a minimum would incur the duties owed to prospective clients, irrespective of whether an actual attorney-client relationship is formed. Moreover, it may be difficult for an attorney to implement either method discussed above in the context of an Internet chat room or bulletin board. Nevertheless, for the purposes of the analysis in the rest of this Article, I will assume that an attorney-client relationship is formed by the Internet activity of the attorney and potential client concerned.
In deciding whether to allow legal representations to occur through the Internet, disciplinary authorities must wrestle with the following issues: (1) whether the initial communications between the parties constitute an improper solicitation by an attorney of a potential client;75 (2) whether the attorney can conduct a proper conflicts check before the attorney enters into the representation;76 (3) if the communications occur in a forum open to the public, whether the attorney can adequately protect client confidences or alternatively, whether the client can waive his or her right to confidentiality in an informed manner, or at all, in this setting;77 and (4) whether an attorney can competently represent a client in this manner.78 If, after grappling with these concerns, a jurisdiction decides to allow electronic representations, the jurisdiction must decide what precautions to require an attorney to take to address these issues and protect consumers in the best manner possible. Furthermore, it is very possible that different jurisdictions will decide to protect clients in different manners and place varied requirements on attorneys who engage in electronic representations of clients.79
II. HISTORICAL TREATMENT OF CHOICE OF LEGAL ETHICS LAW BY MODEL CODE AND MODEL RULES
The ABA' s model ethics rules have gone from not addressing choice of ethics law at all, to basing the choice of ethics law on the jurisdiction or jurisdictions where an attorney is licensed, to basing the choice of ethics law on where the attorney's conduct occurred or where the predominant effect of the attorney's conduct arises.80 The following section discusses the history of the ABA' s treatment of choice of ethics law in attorney disciplinary actions, or lack thereof, first in the Model Code of Professional Conduct ("Model Code") and then in subsequent versions of the Model Rules. This history should help a reader appreciate why there is little case or administrative law discussing this issue and should illuminate the current language of the Model Rule's choice of law rule.
A. Model Code of Professional Responsibility and the Original 1983 Version of Model Rule 8.5
The Model Code, which the ABA adopted in 1969,81 ignored inter-jurisdictional conflicts of ethics law and did not contain a rule addressing choice of ethics law.82 This omission was understandable because conflicts among state ethical rules were minimal during the period of time in which the Model Code served as the basis for most states' regulation of attorney conduct.83 Soon after the ABA adopted the Model Code, fortynine states had adopted or taken significant steps toward adopting the Model Code in substantial part.84 Therefore, with considerable continuity existing between states' ethical rules during this time, choice of ethics law was not a significant issue.85
The original 1983 version of the Model Rules also largely ignored choice of law issues.86 Model Rule 8.5, entitled "Jurisdiction," simply dealt with a state's disciplinary jurisdiction and stated: "A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction although engaged in practice elsewhere."87 Nevertheless, two comments to this version of Rule 8.5 obliquely dealt with choice of law issues. Comment 2 stated that if rules of professional conduct in two states differed then "principles of conflicts of law may apply."88 Comment 3 further stated that where a lawyer "is licensed to practice law in two jurisdictions which impose conflicting obligations, applicable rules of choice of law may govern the situation."89 Consequently, Rule 8.5 and its comments were largely silent on which jurisdiction's ethics law should apply to an attorney admitted to practice in one state but not admitted to the bar in another state in which the attorney rendered legal services.90
B. 1993 Version of Model Rule 8.5
In 1993, the ABA amended Model Rule 8.5. 91 The title of the rule was changed to "Disciplinary Authority; Choice of Law."92 Section (b) dealing with choice of law issues was added93 while section (a) essentially contained the original language of the rule dealing with disciplinary jurisdiction.94 The purpose of section (b) was to subject any particular instance of attorney conduct to "one set of rules of professional conduct."95 This section of the rule divided attorney conduct into that undertaken "in connection with a proceeding in a court," which was dealt with in subsection (b)(1), and "any other conduct," which was dealt with in subsection (b)(2).96
For attorney conduct in a court proceeding, the rule applied "the rules of the jurisdiction in which the court sits."97 For all attorney conduct outside of court proceedings, the rule applied the ethical rules of the jurisdiction where the attorney was licensed to practice if the attorney was admitted in just one jurisdiction.98 If an attorney was licensed to practice in more than one jurisdiction, the rule applied the ethical rules of the jurisdiction where "the lawyer principally practices."99 However, if "particular conduct" of an attorney "clearly [had] its predominant effect in another jurisdiction in which the lawyer [was] licensed to practice, the [ethics] rules of that jurisdiction" applied to such conduct.100
The rule did not define the terms "principally practices" or "predominant effect."101 A comment to the rule did state that the "predominant effect" exception was intended "to be a narrow one."102 The Comment went on to provide two examples of the application of that language. The language would apply "to the situation in which an attorney admitted in, and principally practicing in, State A, but also admitted in State B, handled an acquisition by a company whose headquarters and operations were in State B of another, similar such company."103 However, the language would not apply "if the lawyer handled an acquisition by a company whose headquarters and operations were in State A of a company whose headquarters and main operations were in State A, but which also had some operations in State B."104 The comment did not address more difficult scenarios.
Moreover, neither the language of this version of Rule 8.5 nor its Comment explicitly addressed which state' s ethics law would apply when a jurisdiction was prosecuting an attorney for conducting activity in a jurisdiction where the attorney was not admitted to practice.105 Presumably, in such situations, the law of the jurisdiction where the attorney was licensed to practice would apply, assuming he or she was licensed in only one state.106 But this result seems counterintuitive when the attorney is being prosecuted for conduct that occurred in a different state, especially if the conduct concerned is prohibited in that state but allowed in the licensing state.
Similarly, the rule was unclear as to which state's ethics rules would apply to the prelitigation conduct of an attorney. The rule applies the ethics rules of the applicable court once a lawsuit is filed, but the rule is unclear as to whether that court' s ethics rules apply to the attorney's conduct in representing the same client regarding the subject matter of the ultimate lawsuit prior to filing a complaint.107 Thus, the 1993 version of Rule 8.5 determined the law applicable to an attorney's conduct largely according to the jurisdiction in which the attorney was admitted to practice law, but it was fairly unclear about which jurisdiction's ethics laws applied to out of court conduct when an attorney was licensed in more than one jurisdiction. Furthermore, the rule left something of a gap as to which law applied to an attorney' s conduct prior to filing a lawsuit for a client.
C. 2002 Version ofModelRule 8.5
In August 2002, the ABA adopted amendments to the Model Rules recommended by its Commission on Multijurisdictional Practice.108 Among the amendments adopted were changes to Model Rule 8.5(b).109 The Comment retained the stated purpose of applying "one set of rules of professional conduct" to "any particular conduct of a lawyer."110
The substance of subsection (b)(1), which originally dealt with conduct in court, stayed the same, applying the ethics rules of the jurisdiction where the proceeding concerned takes place, but its language was changed to apply to attorney conduct related to matters "pending before a tribunal"11! in order to cover alternative dispute resolution as well as court proceedings. 112 Subsection (b)(2) dealing with "any other conduct" was changed to apply "the rules of the jurisdiction in which the lawyer's conduct occurred, or, if the predominant effect of the conduct is in a different jurisdiction, the rules of that jurisdiction."113 Again, the text of the rule, as well as its Comment, left important language undefined, such as "conduct occurred" and "predominant effect."
In an apparent attempt to help fill one of the gaps left by the 1993 version of the rule, paragraph 4 of the Comment, the rule uses the "predominant effect" language to address the ethics rules that apply to attorney conduct in representing a client before a lawsuit is filed or alternative dispute resolution is used. The Comment states that "[i]n the case of conduct in anticipation of a proceeding that is likely to be before a tribunal, the predominant effect of such conduct could be where the conduct occurred, where the tribunal sits or in another jurisdiction."114
Furthermore, a safe harbor provision was added to subsection (b)(2) stating that a "lawyer shall not be subject to discipline if the lawyer's conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect of the lawyer's conduct will occur."115 Paragraph 5 of the Comment to the rule explains that this safe harbor provision is to apply "[w]hen a lawyer' s conduct involves significant contacts with more than one jurisdiction" and it is not "clear whether the predominant effect of the lawyer's conduct will occur in a jurisdiction other than the one in which the conduct occurred."116 Therefore, under the current version of the Model Rule, in order to determine the state ethics law to apply to an attorney representing a client in a jurisdiction where the attorney is not admitted, the new Rule 8.5 looks to the state where "the lawyer's conduct occurred" or where the conduct's "predominant effect" arises. However, due to the safe harbor provision, if it is unclear in which state the "predominant effect" of the attorney's conduct arose, the applicable law is that of any jurisdiction where the attorney can plausibly argue he or she reasonably believed the predominant effect occurred.
The current language of the rule leaves it unclear as to which jurisdiction's ethics rules apply to electronic representations of clients. For example, it is not clear where an attorney' s "conduct occurred" when he or she posts a reply in an Internet chat room, on an Internet bulletin board, or responds to client e-mails from a computer in Ohio and the client receives these communications at a computer located in Virginia. The attorney's conduct could be construed to occur in the attorney's home state, Ohio, where he or she has an office because that is where the attorney is located when posting in the chat room or on the bulletin board or drafting and then sending the e-mail.
Alternatively, the attorney's conduct could be interpreted as occurring in the client's jurisdiction, Virginia in this example, because that is where the advice presumably has an effect and where the client acts on the advice. It further seems that if the client acted upon the attorney's advice in Virginia, Virginia would be where the "predominant effect" of the attorney' s conduct occurred. However, under the safe harbor provision in the rule, if the attorney can argue that he or she "reasonably believed" that the "predominant effect" of the electronic representation was in Ohio, Ohio' s ethics laws would apply. Thus, due to the safe harbor provision, the current version of Model Rule 8.5(b)(2) may end up, at least in the context of an attorney's electronic representation of a client located in a different state, applying the ethics law of the state where the attorney is licensed, the same result that would have occurred under the 1993 version of the rule.
III. CASE LAW AND ETHICS OPINIONS AIDING TN INTERPRETING THE CURRENT LANGUAGE OF MODEL RULE 8.5(b)(2)
Only a handful of cases and ethical opinions have interpreted the "principally practices" and "predominant effect" language from the 1993 version of Model Rule 8.5(b)(2)(ii).117 Nevertheless, these cases and opinions indicate that when the attorney and client reside in different jurisdictions, depending on the facts involved, the "predominant effect" of an attorney's conduct can be viewed as occurring in either the jurisdiction where the attorney's office is located or the jurisdiction where the client resides.118
Only two cases to date have construed the relevant language from the 1993 version of Rule 8.5(b)(2)(ii). The Oregon Supreme Court in In re Complaint as to Conduct of Summer dealt with whether Idaho or Oregon ethics law applied in a disciplinary proceeding to the conduct of an attorney licensed to practice in both states.119 The attorney was convicted in a prior Idaho criminal proceeding of attempting grand theft by deception while representing a client with regard to two separate automobile accidents.120 The client was involved in an automobile accident in Idaho a little less than two weeks prior to an Oregon accident.121 In settling with the insurer of the other driver in the Idaho accident, the attorney represented that his client had not been injured in the subsequent Oregon accident.122 Despite this, the attorney, one week after settling his client's claim for the Idaho accident, sent a demand letter to the claims adjuster for the company whose driver was involved in the Oregon accident. 123 In the letter, he stated that his client did not suffer any symptoms until after the second accident, and he attached some of the same medical records that he had submitted to the previous insurer in settling the claim for the Idaho accident.124
In deciding which state's ethics rules to apply, the court first found that the attorney "principally practice[d] law in Idaho."125 After becoming a member of the bar in both Oregon and Idaho, the attorney had "assumed a heavy caseload at a high volume personal injury law firm in Nampa, Idaho."126 Moreover, in analyzing where the predominant effect of the attorney's conduct occurred with regard to the Oregon accident representation, the court noted that while the company whose driver was involved in that accident was "principally an Idaho company, ... its claims adjuster was located in Oregon."127 Furthermore, the claims adjuster had obtained information about the accident from the attorney' s client in Oregon, and the claims adjuster in Oregon had been the first to receive the demand letter from the attorney.128 "It follows, then, that the effects of the [attorney's] conduct were felt in both Oregon and Idaho. It could be argued that the [attorney' s] acts had approximately equal impact in each jurisdiction."129
This, presumably, would have called for application of Idaho law because the court had already determined the attorney principally practiced in Idaho. The "predominant effect" of his conduct was not "clearly" in Oregon, as required under the 1993 version of Model Rule 8.5(b)(2)(ii) in order to apply the law of a jurisdiction other than the one where the attorney "principally practices." Furthermore, with the attorney's primary office being located in Idaho and the party who the attorney's representations potentially would have damaged being located in Idaho, it seems that, of the two jurisdictions concerned, the largest effect from the attorney's conduct would be in Idaho. However, the court noted that "the parties have litigated this proceeding as if the [attorney's] acts had their predominant effect in Oregon. Where that conclusion is at least plausible, we will accept it and proceed accordingly by applying Oregon's disciplinary rules."130
The second case, In re Disciplinary Proceedings Against Marks, involved an attorney who was licensed to practice law in both Wisconsin and Michigan. 131 However, he maintained an office only in Michigan and "75 percent of his practice [was] based in Michigan."132 A Wisconsin client retained the attorney to represent him in a personal injury action.133 The client's wife had been killed and his daughter and granddaughter were injured in a Wisconsin automobile accident. 134 The other driver involved in the accident was a Michigan resident.135 The client terminated the attorney's representation after about a week.136 At this point, the attorney had already done substantial work on the case but had not commenced a lawsuit.137 The parties' retainer agreement stated that the attorney would be paid for legal services performed at an hourly rate plus expenses upon termination of the representation prior to resolution of the case.138 Despite this language, the attorney represented to two insurance companies that he maintained a lien in the amount of twenty-five percent of any settlement of the former client's claims.139 The client's new attorney subsequently moved for a court order in Wisconsin state court declaring that the client's former attorney was not entitled to any legal fees beyond the amount that he had originally invoiced the client and calculated at an hourly rate.140 The former attorney then filed a lawsuit in Michigan state court against the former client, the new attorney, and the insurance companies "asserting a 'charging lien,'" among other grounds.141
Once the two actions were settled, the former client and his subsequent attorney filed a grievance in Wisconsin against the original attorney under both the Wisconsin and Michigan attorney ethics rules for representing to the insurers that he had a twentyfive percent lien on the proceeds of the client's personal injury claims.142 The referee who initially heard the matter determined that the "predominant effect" of the attorney's conduct "occurred in Wisconsin because it affected the Koivistos, who are Wisconsin residents."143 Therefore, Wisconsin law applied.144
The Wisconsin Supreme Court did not expressly review this determination by the referee noting only that "[n]either party appears to dispute that the Wisconsin disciplinary rule was properly applied to this count."145 The referee's analysis apparently would determine that the predominant effect of an attorney's conduct occurs in the jurisdiction where the client resides. Another argument supporting the "predominant effect" occurring in Wisconsin, although not mentioned in the opinion, would be that a Wisconsin accident would have been at issue in any lawsuit filed on the client's behalf. However, in determining where the "predominant effect" of an attorney's conduct occurred, the courts in both Marks and Summer appear to have weighed heavily where the clients resided.146 This resulted in the application of the ethics law from the client's jurisdiction to the attorney's conduct, which incidentally was also the jurisdiction of the courts making the choice of law determination.
With regard to ethics opinions, two New York opinions have addressed to some extent the "principally practices" and "predominant effect" language in the New York Code of Professional Responsibility Disciplinary Rule ("DR") l-105(b)(2)(ii), which is almost identical to the 1993 version of Model Rule 8.5(b)(2)(ii).147 In the first opinion, an attorney' s law firm prepared immigration forms for a husband and wife and then submitted those forms to the Immigration and Naturalization Service ('TNS") office in New Jersey where the clients lived. 148 Included among the documents was a form by which the firm entered its appearance as the couple's "attorney of record."149 The husband and wife subsequently became involved in litigation, and after the husband requested the wife's complete file, the attorney sought information on how much of her file the law firm had to provide to the husband.150
In a footnote, the ethics committee of the New York City Bar Association dealt with which jurisdiction's law applied to this issue.151 The committee first noted that the attorney's letterhead indicated that "the attorney's firm maintained] its practice of law in the State of New York."152 Moreover, the committee emphasized that "all services rendered by the firm in this engagement were performed in or from New York," although it recognized that the firm submitted the clients' INS documents to the New Jersey immigration office. 153 The committee concluded that the New York Code of Professional Responsibility governed the law firm's "professional activities" because New York was the "state in which the firm maintains its practice and in which we assume the attorney and any others in the firm who worked on the engagement are admitted to practice."154 The committee presumably could have left the analysis there using New York's DR l-105(b)(2)(I), which is almost identical to the 1993 version of Model Rule 8.5(b)(2)(I), dealing with the choice of ethics law when an attorney is licensed in only one jurisdiction. Assuming that the attorneys that worked on the couple's INS forms were licensed to practice only in New York, this provision would call for the application of New York's ethics rules.155
However, the committee went on to address the language in DR 1-105(b)(2)(ii), which is almost identical to the 1993 version of Model Rule 8.5(b)(2)(ii), dealing with the applicable jurisdiction's ethics rules to use when an attorney is licensed in two states. This may be due to the lack of information on whether any of the attorneys concerned were also licensed to practice in New Jersey and the fact that the firm submitted the INS forms in New Jersey. The committee stated that "[u]nder DR 1-105(B)(2), because the lawyer principally practices in New York, the New York rules would apply to his conduct in this instance."156 The committee, though, did not go on to address whether the attorneys' "conduct clearly ha[d] its predominant effect in another jurisdiction,"157 in this situation New Jersey. Thus, the committee appears to have stopped its analysis halfway through this portion of the choice of law provision.
Arguably, the law firm's conduct had its predominant effect in New Jersey where both clients lived, where the firm had filed INS documents on the clients' behalf, and where the attorneys entered an official appearance as the clients' attorneys. Alternatively, although not mentioning the "predominant effect" language, the committee could have implicitly determined that the "predominant effect" of the attorneys' conduct was in New York where the firm was located and where the attorneys prepared the legal documents involved in the INS representation. This was also the jurisdiction where the client's file concerned was located. Under this view, the clients' residence and the jurisdiction where the law firm submitted the documents would be of little consequence. Although perhaps constituting a misreading of the "predominant effect" language in the choice of law rule, this interpretation is at least consistent with an application of the entire test set out in New York's DR 1-105(b)(2)(ii).
In a second New York ethics opinion, an immigration law attorney licensed to practice in both New York and Illinois, but who practiced in Chicago, raised a conflict of interest issue concerning one former and one current client.158 After quoting New York's DR 1-105(b)(2),159 the ethics committee of the New York State Bar Association concluded that Illinois ethics rules applied to the attorney's conduct because "the jurisdiction in which the attorney principally practices [was] Illinois."160 Perhaps more interestingly, the committee went on to state that even if the attorney had principally practiced in New York, the Illinois ethics rules would apply because the "particular conduct in the inquiry ha[d] its predominant effect in Illinois."161 The opinion did not state explicitly what the specific "conduct in the inquiry" was, except for earlier noting that the attorney represented "individuals in immigration matters."162 Assuming that the attorney's conduct at issue dealt with an immigration representation in Illinois, the opinion can be interpreted as concluding that the "predominant effect" of such a representation clearly would occur in Illinois, even if the attorney's office was in New York. This is a more accurate interpretation of this language than in the prior ethics opinion from the New York City Bar Association committee, and the opinion evidences a complete application of the test set out in DR 1-105(b)(2)(ii), dealing with attorneys licensed in two states.163
As evidenced by the cases and ethics opinions dealing with the terms "predominant effect" in the 1993 version of Model Rule 8.5(b)(2)(ii), a more deliberate and explicit application by courts and ethics committees of the test presented both in the 1993 and current versions of the model choice of ethics law rule is necessary to bring more predictability to this area. The available authority, however, illustrates some significant factors in determining where the "predominant effect" of an attorney's conduct occurs. While the courts in Summers and Marks ultimately acquiesced to the wishes of the parties and applied the law of the jurisdiction where the court sat,164 in both cases, this was the jurisdiction where the clients apparently lived and where the underlying accident occurred that was the reason for the attorney's representation.165 So, the client's residence and the location of underlying events causing the need for legal representation undoubtedly are important factors to consider in the "predominant effect" determination. Additionally, the opinion of the New York State Bar Association Ethics Committee concerning the Chicago attorney apparently placed importance on the location of the court or agency office before which the attorney represented the client.166 So this also is a potentially significant factor.167
Nevertheless, the ethics opinion from the New York City Bar Ethics Committee would give an attorney grounds for arguing that where the attorney conducted the actual legal work in other words physically drafted documents and conducted research concerned in the representation is a factor in the "predominant effect" analysis. 168 Furthermore, the Summers case also considered the location of an opposing party and where an opposing party' s claims adjuster collected information regarding the accident underlying the potential litigation.169
While of course not binding, and perhaps not even very authoritative in other jurisdictions, both the New York City ethics opinion and the Summer case demonstrate how application of the "predominant" effect language may be problematic, especially considering the safe harbor language included in the 2002 version of Model Rule 8.5(b). The safe harbor language states that an attorney will not be subject to discipline if his or her conduct "conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect of the lawyer's conduct will occur."170 Given the current sparseness of authority on where the "predominant effect" of an attorney' s conduct occurs, the opinions of the New York City Ethics Committee and Summers provide an attorney with grounds to argue that he or she reasonably believed that the "predominant effect" of any representation involving multiple jurisdictions occurred in his or her home jurisdiction where the attorney's office is physically located and where he or she actually drafted documents, conducted research, or investigated the legal matter concerned. This argument might be especially persuasive when an electronic representation is involved and the attorney never leaves his or her office in representing the client. This, however, ignores the fact that the client who feels the consequences of the representation is located in a different jurisdiction and that where the attorney drafted documents or conducted legal research has little to no relevance to where the effect of the representation is felt. As explained below, the susceptibility of the relevant language to this outcome likely invalidates the current version of Model Rule 8.5(b)(2) under dormant commerce clause principles when applied to attorney Internet representations.171
IV. THE DORMANT ASPECT OF THE COMMERCE CLAUSE
The dormant commerce clause is an implicit facet of the Commerce Clause in the United States Constitution.172 Because the Commerce Clause gives the United States Congress the power to regulate commerce among the states,173 state governments, under the dormant aspect of the Commerce Clause, cannot inhibit or frustrate trade between states through legislation, even in the absence of congressional legislation.174 This power to promote trade between the states, however, is balanced against the federalist system of government created in the Constitution in which states and their citizens retained powers not expressly given to the federal government. 175 For example, states possess "police powers" allowing them to "regulate activities . . . affect[ing] the health, safety, security and general welfare of their residents."176 Assuming a state is not attempting to further an improper purpose,177 the basic question in a dormant commerce clause analysis is whether state legislation inhibits interstate commerce to such an extent that the state's interest should give way to the national interest in promoting trade between the states.178
Therefore, the United States Supreme Court under its modern dormant commerce clause test balances the benefits of the state regulation against the burden that such regulation places on interstate commerce.179 The test from Pike v. Bruce Church, Inc. states that even-handed or non-discriminatory regulations that promote "a legitimate local public interest . . . will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits."180 Additionally, the Court has invalidated "state regulations that have the effect, intended or not, of regulating commerce that occurs 'wholly outside of the State's borders' as per se violations of the Commerce Clause."181 Finally, in some instances when analyzing state statutes under dormant commerce clause principles, the Supreme Court has examined whether the statute "adversely affect[s] interstate commerce by subjecting activities to inconsistent regulations."182 However, a close reading of the cases dealing with state regulation of the nation's highway and railroad systems-the major context in which the Court has examined this last concern-indicates that the Court still uses a Pike balancing analysis in these situations.183
Several commentators have recognized the relevance of the dormant commerce clause principles to choice of law analysis. 184 Both choice of law and dormant commerce clause principles compare competing state interests and analyze when the application of a jurisdiction's substantive law is appropriate,185 and both ultimately are concerned with how the various sovereign states in the American federalist structure of government relate to one another, especially with regard to facilitating commerce between states.186 Thus, it is natural to examine the limits that the dormant commerce clause puts on the choice of law decisions of states.
While the various choice of law regimes seek to decide which single jurisdiction's law is most appropriate to apply to the activities of a particular actor, dormant commerce clause principles seek to determine only whether the application of a state' s law fails to meet the minimum thresholds required under the Constitution.187 Therefore, under the dormant commerce clause, at least in theory, it is possible that the application of several states' laws may be appropriate.188 The dormant commerce clause analysis then would allow a choice of law regime to determine which particular jurisdiction's law, out ofthose that pass Constitutional muster, most appropriately should control the rights of parties in specific circumstances.
V. APPLICATION OF THE DORMANT COMMERCE CLAUSE TO STATE REGULATION OF THE INTERNET
A. Case Law Applying Dormant Commerce Clause to State Regulation of Internet Activity
Cases analyzing state regulation of Internet activity under the dormant commerce clause mainly have dealt with three different types of state statutes. The first type of statute criminalizes knowingly posting material on the Internet that would be "harmful to minors."189 These statutes often can be construed to hold the operator of a Web site criminally liable simply for making such material available on a Web site whether or not the operator was aware of specific instances when minors accessed such material. 19° Courts overwhelmingly have held that such statutes violate the dormant commerce clause.191
The second type of statute criminalizes the use of the Internet to intentionally "lure," "seduce," or "solicit" minors into engaging in sexual activity with an adult.192 These cases often involve an adult initially communicating with a police officer posing as a minor in an Internet chat room or bulletin board and engaging in sexually explicit discussions with the supposed minor. 193 Often the adult attempts to meet the intended minor victim in person for the purpose of engaging in sexual activity. 194 Courts overwhelmingly have held that these statutes do not violate the dormant commerce clause. 195
The third main category of state statutes regulate the sending of unsolicited commercial e-mail or "spam."196 These statues generally prohibit sending spam to state residents when the e-mail contains false or misleading information concerning the subject, origin or transmission path of the e-mail. 197 Courts have held that such statutes do not violate the dormant commerce clause.198 While several cases have dealt with anti-spam statutes, the bulk of the case law examining state regulation of the Internet under the dormant commerce clause has dealt with the first two types of statutes.
In dealing with the first category of statutes that hold Web site operators liable for making harmful material available to minors on the Internet, courts have used three main grounds to invalidate such statutes under the Commerce Clause. First, courts have asserted that such statutes project a state's legislative regime outside of the state by affecting operators of Web sites who are physically located outside of the state and who may or may not have people from within the state visit their Web site.199 Therefore, the legislation affects commerce that occurs outside of the state or, in other words, operates extraterritorially. The site operator must comply with another state's statute to avoid criminal prosecution - despite being physically located in a different state - whether or not residents of the other state actually visit the site.200 Second, using the Pike balancing test, courts have found that the burden placed on interstate commerce by such legislation outweighs its putative benefits.201 These cases, although recognizing that states have a legitimate interest in protecting minors from harm,202 have minimized the benefits of such a statute due to jurisdictional restraints that prevent a state from prosecuting operators of Web sites who physically are located outside of the state.203
Third, some courts have gone beyond analysis of the particular statute at hand and asserted more broadly that only the federal government may regulate the Internet under dormant commerce clause principles.204 Courts generally have made this argument in the following manner. The interstate nature of the Internet necessitates consistent treatment of Internet activity,205 and thus, to avoid inconsistent state regulatory regimes from "paralyz[ing] the development of the Internet altogether" only federal Internet regulation is appropriate.206 Since Web site operators cannot cut off access to their sites from particular states, allowing states to regulate the Internet would require a Web site operator to comply with the most stringent state regulation that existed, which would inevitably stunt the growth of some types of commercial activity on the Internet.207
However, the cases that have made this sweeping argument ignore that the Supreme Court has still used the Pike balancing test in the primary context in which the Court has mentioned the consistency of state regulation as a concern, the cases dealing with regulation of the United States' highway and railway systems.208 Therefore, in the instances when the Court ultimately determined that state regulations of highways and railways were unconstitutional, the Court held that the burden created by compliance with the different regulations of several states outweighed the benefit derived by the states seeking to regulate the activity at issue.209 Cases setting out this argument also ignore that on Web sites that are more interactive, the site operator will have opportunities to learn the physical location of the site user.210
Courts have held that the second category of statutes prohibiting adults from using the Internet to lure, seduce, or solicit minors into engaging in sexual activity do not operate extraterritorially or overburden commerce.21! First, these courts have reasoned that these "luring" statutes regulate conduct that, at least partially, occurs within the prosecuting state.212 Generally, a defendant must commit at least part of a crime in a state in order to be subject to a state' s criminal jurisdiction.213 In determining whether a state has criminal jurisdiction over a defendant who communicated electronically with a state resident while physically located outside of the prosecuting state, several courts have held that the criminal conduct is not complete until "the offending words are heard by another person" or received electronically inside the state of prosecution.214 Thus, the defendant acts, at least partially, in the prosecuting state when he or she intentionally transmits electronic communications to a minor located in the prosecuting state.215 Additionally, in many of these cases, the adult, in order to achieve his or her ultimate objective, needs to obtain information about the minor's geographic location and often travels to the prosecuting state in order to meet the minor face-to-face.216 Therefore, courts have held that these "luring" statutes prosecute activity that occurs within that jurisdiction and do not operate extraterritorially.217
Second, courts have found that the burden placed on interstate commerce by such statutes is very slight. This is largely because these statutes do not regulate legitimate commerce.218 Moreover, the intent requirements of these statutes greatly reduce the number of electronic communications affected by the regulations.219 In order to be criminally liable, a defendant must intentionally send material to a known minor with the intent to seduce or lure the minor into engaging in sexual activity.220 Thus, courts have held that states' compelling interest in protecting minors from harm outweighs the burden, if any, that luring or solicitation statutes place on interstate commerce.221
Courts dealing with state anti-spam statutes - the third main category of state Internet statutes that courts have examined under the dormant commerce clause - have followed an analysis similar to the one followed in cases dealing with luring or solicitation statutes. First, these courts have found that the anti-spam statutes concerned do not operate extraterritorially.222 Courts have found that the language of these statutes constrain their application to senders of e-mail who either utilize computers within the state or that specifically target residents of the state concerned.223 Therefore, such statutes do not apply to conduct occurring wholly outside of the regulating state.
Second, courts dealing with state anti-spam statutes have held that any burden placed on interstate commerce from such statutes is outweighed by the benefits to the regulating state. These cases have found that anti-spam regulations do not burden interstate commerce but in fact facilitate it.224 Additionally, such statutes do not burden senders of unsolicited, bulk commercial e-mail with the difficulty of complying with inconsistent state regulations because anti-spam statutes simply require that the senders of such e-mail include accurate and truthful information concerning the subject and source of such e-mail, which is not contrary to any other state's regulations.225 Thus, anti-spam statutes do not constitute a significant burden on legitimate interstate commerce.
Furthermore, states have a legitimate interest in protecting consumers from fraudulent and misleading business practices conducted through e-mail.226 Courts further have recognized the significant economic costs that spam or unsolicited e-mails create.227 Promulgating legislation in order to reduce such costs advances a legitimate state objective.228 Consequently, courts have held that state anti-spam statutes further legitimate state interests while posing a very slight, if any, burden to interstate commerce and are valid under the dormant commerce clause.229
B. Reconciling the Cases Dealing with State Regulation of the Internet According to the Degree of Anonymity and Interactivity of the Particular Internet Communication Affected by the Applicable Regulation
The three main categories of cases examining state regulation of the Internet under the dormant commerce clause illustrate how the degree of anonymity between Web site users and operators affects the burden of complying with different state regulations. The anonymity of Internet communications is one of the major characteristics of the operation of the Internet that can make compliance with different state regulations especially difficult.230 Internet users are often unable to determine the physical location of the computers that facilitate Internet communications because the Domain Name System ("DNS")231 and Universal Resource Locator ("URL")232 used to tell computers where to retrieve or transport data do not necessarily correspond to any specific geographic location.233 Instead, the DNS and URL provide a hierarchical structure for computers to translate textual names into computer addresses.234 Consequently, Web site operators are often unaware of the physical location of users of the site.235
The degree of interactivity of the Internet communications involved determines how much anonymity ultimately will remain between users. For example, operators of "passive" Web sites who simply "publish information which others can view on the site" and do nothing else will have little opportunity to learn of the physical location of users of the site.236 On the other hand, operators of more "interactive" Web sites that allow, or in some instances require, users to exchange information with the operator's computer server have more ability to discover the user's physical location.237 Presumably, "[t]he more interactions that occur between the user and the Web site, the more opportunities the host or operator of the site has to obtain information from the user about the user's physical location."238 Similarly, people using electronic mail or communicating in a chat room have the opportunity to discover the physical location of one another. Once an Internet user discovers another party's physical location, the user can then either continue the communication or end it if the user knows that the jurisdiction in which the other party is located prohibits the activity. Without knowledge of the physical location of the other party, though, users have to comply with the most stringent state regulation that exists, whether individuals located in that state are involved in the communication or not. Therefore, the level of interactivity of the Internet communications concerned affects how burdensome compliance with different state Internet regulations can be.
Consequently, the interactivity of the Internet communications governed by a particular state regulation is a key factor in reconciling the cases that have analyzed state regulation of Internet activity under the dormant commerce clause. m The state Internet regulations that courts have invalidated under the dormant commerce clause potentially attacked passive Internet activity.240 These statutes prohibited Web site operators from posting material on the Internet that would be "harmful to minors" and would cover passive Web sites where operators or hosts just made information available to site users and had no additional contact with site users.241
On the other hand, the state Internet regulations that courts have held passed muster under the dormant commerce clause regulated more interactive Internet activity.242 The first category of these statutes largely prohibited the use of the Internet by adults to lure known minors into engaging in sexual activity with the adult.243 The activity affected by these statutes often involved the adult engaging in multiple communications over the Internet with the person believed to be a minor.244 In order to violate the statute, the adult had to discover from the other party that they were a minor.245 Moreover, due to the interactive nature of the activity involved, the potential defendant had the opportunity to discover the physical location of the target and also had an incentive to discover the physical location of the target in order to facilitate a face-to-face meeting.246
The second category of state Internet statutes that courts have held valid under the dormant commerce clause prohibited the use of false or misleading information concerning the subject or origin of unsolicited, bulk commercial e-mail, otherwise known as "spam."247 These statutes largely applied to actors who either utilized computer equipment in the regulating state, targeted residents of the state concerned, or sent e-mail to people that they knew or could have discovered through reasonable efforts were residents of the regulating state.248 E-mail itself is a much more interactive medium than a passive Web site. For example, someone sending commercial e-mail from the outset can choose to whom such e-mail is sent, while the publisher of a passive Web site, once he or she has posted information on the Web site, has little control over which states' residents access the site.249 Furthermore, e-mail by its very nature allows for the exchange of information between the sender and the recipient, including discovery of each other's physical location. Thus, the dormant commerce clause case law to date has tended to invalidate state Internet regulations that affected passive Internet activity and to uphold regulations that dealt with more interactive Internet communications.
VI. DORMANT COMMERCE CLAUSE ANALYSIS OF CURRENT ABA CHOICE OF ETHICS LAW RULE, MODEL RULE 8.5(B)(2), WHEN APPLIED TO E-LAWYERING
The dormant commerce clause test boils down to whether the burden placed on interstate commerce by the state regulation outweighs the benefit to the state interest that the regulation promotes unless the state regulation at issue discriminates against out-of-state actors on its face or a court can discern this was the purpose of the regulation.250 The current version of Model Rule 8.5(b)(2) would apply a state's ethics law to all attorney conduct by attorneys with offices located within as well as outside of the regulating state that "occurred" or had its "predominant effect" within a state.251 Therefore, because this rule treats both resident and non-resident attorneys in the same manner, it is appropriate to apply the dormant commerce clause balancing test from Pike v. Bruce Church to examine the constitutionality of Model Rule 8.5(b)(2) in the context of attorney representations of clients over the Internet.252
The following hypothetical provides a concrete example of a potential Internet representation of a client and facilitates a more clear understanding of the interests, or lack thereof, of the various states that potentially could regulate and apply their laws to an attorney' s electronic representation of a client. An attorney with an office located in Cincinnati, Ohio has a practice that, among other areas, focuses on landlord-tenant and fair housing law. The attorney is licensed to practice only in Ohio. In order to attract new clients, the attorney from time to time participates in Internet bulletin boards where people with questions about landlord-tenant and fair housing law post questions.
A mother with three young children residing in Roanoke, Virginia recently was turned down after applying for a two-bedroom apartment in a local apartment complex. The reason given by the manager of the apartment complex was that the mother would have exceeded the three person occupancy limit for that apartment. The manager of the apartment complex explained that it has a policy of allowing only one more occupant than the number of bedrooms in each apartment.253 The mother posts a question setting out her situation on an Internet bulletin board dealing with landlord-tenant law asking whether the complex's occupancy policy violates any laws and asking whether there are any government offices that can help her.
The Ohio attorney posts a reply to the mother's initial post on the landlord-tenant Internet bulletin board and explains the process of lodging a complaint with the United States Department of Housing and Urban Development ("HUD") as well as how complaints are lodged with most state agencies that deal with fair housing matters. He also explains the process that HUD generally uses in processing such complaints. He further states that it is possible that the apartment complex' s occupancy policy violates federal fair housing laws due to a disparate impact on families. He explains, however, that he would need more information from the mother and would have to do some legal research in order to form a more definitive opinion. The attorney includes the Web address of his firm's Web site in his reply post in case the mother would like to discuss this matter further with him.
The mother goes ahead and submits a housing discrimination complaint to HUD, and she also decides to contact the attorney about potentially filing a lawsuit against the apartment complex. The mother goes to the attorney's Web site. The attorney's Web site describes his practice and qualifications. The home page of the Web site also contains a link entitled, "What are my rights?"254 When a visitor to the Web site clicks on that link, he or she is then taken to another Web page entitled, "Wondering about a legal problem that you have?" This page presents a client intake form to the visitor that asks for the visitor's name, contact information (including an e-mail address), a brief description of the visitor's legal problem, a listing of other parties or actors involved with the visitor's legal problem, and any questions that the visitor has for the attorney about his or her legal problem. The mother fills out the client intake form and clicks on the "Submit" button at the end of the intake form, which sends her information to the attorney's computer in Ohio.
After receiving the potential client's information through his Web site, the attorney runs a conflicts check and then sends an e-mail to the mother, stating the terms of the representation, again stating his belief that the occupancy policy of the apartment complex violates fair housing laws, and attaching an information packet for the client to fill out. The mother in Virginia fills out the information packet provided to her and then sends the packet back to the Ohio attorney as an attachment to an e-mail. The attorney follows up on the information provided in the information packet by sending e-mail messages to the client, engaging in some legal research, and eventually communicating the client' s position to HUD through a letter and several telephone calls before HUD reaches a resolution with the apartment complex.
A. The Burden on ?-Lawyering of Complying with Different State Ethical Regimes
Electronic representations of clients involve interactive Internet communications that would decrease anonymity among the parties involved and decrease the burden of complying with differing state ethical rules with regard to such conduct. As explained above, the anonymous nature of communications over the Internet is one of the major factors that burdens Internet actors when complying with differing state regulations.255 However, when Internet communications are more interactive, anonymity among actors decreases.256 Electronic representations of clients involve interactive communications between the attorney and client that allow the attorney to discover the client's physical location and then comport his or her conduct to the ethical rules of that jurisdiction. This is especially true when e-mail communications and communications on Internet bulletin boards are involved. Some Internet bulletin boards even require that a user seeking legal advice indicate the jurisdiction in which they are located.257 Furthermore, an attorney providing a form on a Web site to facilitate client communication can adapt the form to require the client to indicate the jurisdiction where he or she physically is located. For example, in the hypothetical presented above, the attorney first had an opportunity to enquire about the jurisdiction in which the mother lived - if he did not get this information from her initial post - when he posted a reply on the Internet bulletin board. The attorney had a second opportunity to discover where the mother resided through the client intake form included on the firm's Web site.
While the example above did not involve contact between the attorney and client in a real-time Internet chat room, even in this context an attorney would have an opportunity to ask about the physical location of an individual who has asked a legal question. Admittedly, an attorney in a real-time situation would have less time to discern the ethical requirements of the applicable jurisdiction in order to comply with them. However, an attorney that engages in chat room discussions on a regular basis could familiarize him or herself in advance with the jurisdictions that prohibit certain activity and end communications with individuals from those jurisdictions. Moreover, an attorney involved in an electronic representation of a client in any context will need to know the client's physical location in order to provide competent legal advice. If the attorney does not have this information, he or she should not be providing legal advice. Consequently, anonymity is not a characteristic of electronic representations of clients, and, therefore, one of the largest factors that creates a burden on Internet actors complying with the regulatory regime of different states is not an issue in this context.
Nevertheless, in electronic representations of clients there is a burden placed on the attorney to ascertain and then comport his or her activity with the ethical regulations of different jurisdictions, especially if some jurisdictions prohibitthe attorney's activity. For example, in the hypothetical above, the attorney located in Ohio would have to familiarize himself with both Ohio and Virginia's legal ethics rules, ascertain whether or not either state prohibits electronic representations, and, if not, whether either state imposes any special duties on attorneys that engage in such representations. The attorney would also have to determine if Virginia's ethics rules conflict with Ohio's rules in any relevant aspect, and, if so, determine which state's ethics laws should apply to his conduct.
However, the burden faced by attorneys in such situations is much less significant than the heavy burdens faced by individuals operating passive Web sites as much of the case law dealing with state Internet regulations notes. The interactivity of the Internet communications involved in e-lawyering prevents the attorney from having to comply with the regulations of the most restrictive states when the representation has no relationship with those states. For example, the Ohio attorney would only have to consider the duties and restrictions imposed by Ohio and Virginia's ethic rules, not the ethics rules of every state. As long as Ohio and Virginia allowed this type of representation, the attorney could engage in this electronic representation despite other jurisdictions prohibiting electronic representation. In this manner, one jurisdiction would not control the conduct of actors in electronic representations bearing no relationship at all to that jurisdiction. Thus, any concerns about the extraterritorial application of states' ethics laws similar to those expressed in the line of cases invalidating state regulation of the Internet under the dormant commerce clause are not relevant in this context.
B. The Benefits to Potential Jurisdictions of Applying Their Ethical Regimes to E-Lawyering
Having analyzed the burden placed on attorneys in ascertaining which jurisdiction' s ethic rules would apply when engaging in electronic representations, it is necessary to examine the benefit to the potential states whose ethical regimes could apply to any given representation. In an electronic representation involving an attorney and client physically located in different jurisdictions, the ethics laws of both the client's home jurisdiction and the attorney's home jurisdiction are potentially applicable to the attorney's conduct. The current version of Model Rule 8.5(b)(2) applies the ethics laws "of the jurisdiction in which the lawyer's conduct occurred" to an attorney unless "the predominant effect of the conduct is in a different jurisdiction."258 A court would most likely find that the lawyer's conduct occurred or the predominant effect of the conduct in an electronic representation was felt in either the client's home jurisdiction, where the attorney concerned presumably is not licensed, or the attorney's home jurisdiction, where the attorney presumably is licensed. In the hypothetical, the ethics rules of Ohio, where the attorney's office is located, and the ethics rules of Virginia, where the client resides, are potentially applicable to the electronic representation concerned.
A dormant commerce clause analysis requires measuring the benefit to each of these jurisdictions of applying its ethics law to electronic legal representations to determine whether the benefit exceeds the burden placed on interstate commerce. To determine the benefit to each jurisdiction, the actual interest of each jurisdiction in regulating electronic representations first must be examined.
1. Interest of Jurisdiction Where Client Resides in Regulating Electronic Representation
In an attorney's electronic representation of a client, the jurisdiction where the client is located (the client's home jurisdiction) has a legitimate consumer protection interest in applying its ethics rules to this activity in most situations. Therefore, in the hypothetical presented above, Virginia has a legitimate interest in regulating this situation because the consequences of the representation ultimately are felt in Virginia. In Virginia, the client acts upon the attorney's legal advice and experiences the end result of that advice.
The first question in the electronic representation concerned would be whether the Ohio attorney has engaged in the unauthorized practice of law. The stated purpose of unauthorized practice regulations is consumer protection; more specifically, to protect state residents from representation in legal matters by people who have not satisfied the various licensing requirements that ensure a person will provide competent and ethical legal representation to individuals.259 In other words, Virginia's unauthorized practice laws provide some measure of protection to Virginia residents from incompetent legal representation. Another initial issue would be whether or not the attorney has violated any rules governing solicitation of potential clients. A state's legal solicitation rules serve an additional consumer protection function of ensuring that attorneys do not take advantage of state residents through the manner in which they contact potential clients or in the representations that they make to prospective clients.260
A jurisdiction' s determination that an attorney can provide competent and diligent representation to its residents, including adequate communication with the client and implementing procedures to avoid conflicts of interest in an electronic context, would inform the unauthorized practice decision. In the hypothetical presented above, for example, it is appropriate for Virginia, where the mother resides, to weigh the benefits of allowing attorneys located outside of and, presumably, not licensed in Virginia to provide legal advice to Virginia residents through Internet bulletin boards or e-mail communications. The mother initially came into contact with the attorney when he posted a reply to the mother's initial Internet bulletin board post about an apartment complex's rejection of her application due to the size of her family. The mother learned some beneficial information through the attorney's reply post. She learned about the process for initiating a complaint with HUD, and she received a preliminary opinion about whether she had a discrimination claim against the apartment complex. This is information that she would not have had absent the communication from the attorney. There are, however, some significant legal ethics issues concerning the manner in which the mother received this information. The attorney provided a legal opinion on whether the mother had a valid discrimination claim against the apartment complex based on very minimal information from her, with very little opportunity for follow up questions, and without being able to make a complete conflicts check.
States have applied their unauthorized practice laws and solicitation rules to analogous situations, often with little to no choice of law analysis, where attorneys located and licensed in other jurisdictions attempted to procure residents of the regulating state as clients through normal United States mail communications. In a series of recent, related cases, the Indiana Supreme Court applied Indiana's unauthorized practice of law and solicitation rules to attorneys who had sent written solicitations by United States mail to survivors of and relatives of people killed in a military plane crash in Evansville, Indiana.261 These cases did not explicitly analyze the propriety of applying Indiana ethics law to the conduct of attorneys licensed to practice in outside jurisdictions, but instead, they discussed the appropriateness of Indiana asserting disciplinary jurisdiction over such attorneys.262
The court determined that it had disciplinary jurisdiction over the attorneys because "any acts" the attorneys took in Indiana constituting the practice of law were "subject to [the court's] exclusive jurisdiction to regulate professional legal activity in [Indiana]."263 Moreover, the court emphasized that the attorneys had directed activity that had affected Indiana residents:
By directing the solicitations to the prospective clients, the respondents communicated to those persons that they were available to act in a representative capacity for them in Indiana courts to address loss or injury associated with the plane crash. As such, they held themselves out to the public as lawyers in this state when neither was admitted to practice here. Those acts constituted professional legal activity in this state subject to our regulatory authority.264
The Indiana Supreme Court went on to apply Indiana ethics law to the conduct of the attorneys concerned without analyzing whether this was appropriate.265 Presumably, the court believed that the justification for applying Indiana ethics rules to the attorneys in this situation was so apparent and inherent in the court's powers as to not require any discussion beyond that provided in deciding whether disciplinary jurisdiction was appropriate.266 The same policy justification exists for applying the ethics law of the jurisdiction where the client resides whether the attorney communicates through regular mail, by telephone, or through the Internet. In each of these contexts, the jurisdiction has an interest in protecting consumers of legal services that reside in that jurisdiction.
In the hypothetical situation discussed above, should Virginia decide to allow the electronic representation, the next step is to determine if the attorney should use any special precautions or procedures during the representation. It is appropriate for Virginia, where the client resides, to determine how best to protect its residents in such representations. Consumer protection considerations similar to those discussed above would inform this decision. In other words, Virginia should decide what safeguards an attorney should employ to deal with the advertising, solicitation, confidentiality, and conflicts issues267 that arise in electronic representations of Virginia residents because the client experiences the benefits of or harm from the representation in Virginia.
2. Lack of Interest of Attorney's Home Jurisdiction in Applying Its Ethics Law to an Electronic Representation that Affects a Resident of Another State
The attorney' s home state does not have a corresponding consumer interest in regulating the electronic representation by applying its ethics law to the representation. Although Ohio is the attorney's licensing state, it has a negligible interest in choosing the best manner of protecting a Virginia resident, whom the Ohio attorney represents "electronically," whether it decides not to allow such representations, or to allow such representations if certain safeguards are used. This is especially the case if Virginia, where the client resides, has decided to protect its citizens in a different manner than Ohio. Ohio has a negligible interest when the consequences ofthe attorney's actions are experienced by a Virginia resident in Virginia. Virginia is where the mother acted upon the attorney' s advice by filing a HUD claim, where the mother is seeking an apartment, and where the mother will experience the benefit or harm that results from the manner in which her legal problem is resolved. Therefore, Ohio has very little to no interest in applying Ohio law to determine whether the attorney is engaging in the unauthorized practice of law by providing legal advice through the Internet to a person residing in Virginia. Ohio also has no interest in determining through its ethics law how Virginia residents are solicited.
Ohio might assert that it has an interest in regulating the conduct of attorneys it licenses, no matter where that conduct occurs or is felt, in order to protect the purity of its bar.268 In the past, some courts have asserted that the licensing jurisdiction's interest in "purifying" the attorneys it licenses to practice law justifies the application of that jurisdiction's ethics laws to such attorneys' conduct that occurs outside of the borders of the licensing jurisdiction.269 In many of these cases, the courts used this "purification" interest to apply a jurisdiction's legal ethics regime to extraterritorial attorney conduct in situations "where other contacts or governmental interests [were] entirely absent."270
While this purification interest justifies Ohio disciplining an Ohio attorney for conduct occurring in the electronic representation of a resident of Virginia, it does not justify applying Ohio law to determine whether the attorney engaged in the unauthorized practice of law in Virginia or violated any ethical duty owed to the Virginia resident if Ohio's ethics rules differ from Virginia's rules.271 Ohio can protect its interest by ensuring that the attorneys it licenses conduct themselves in an ethical manner by asserting disciplinary jurisdiction over the attorneys and then applying Virginia's ethics rules to the conduct in question.272
Moreover, assuming that Ohio has a purification interest in policing or purifying its bar supports applying its ethics rules to the electronic representation concerned, this should give way to the much greater interest of Virginia in protecting its citizens from potentially incompetent legal representation, choosing the best manner in which to balance its citizens' access to legal services against the ethical issues posed by electronic representations, and deciding how to best minimize the ethical concerns of such representations. Therefore, in dormant commerce clause terms, the putative benefit to the attorney's home jurisdiction in applying its ethics laws to electronic representations is negligible at best, while the benefit to the client's home jurisdiction is great.
C. The Safe Harbor Language of Model Rule 8.5(b)(2) Invalidates the Choice of Ethics Law Rule Under the Dormant Commerce Clause Because It Allows the Ethics Laws of the Attorney's Home Jurisdiction to Apply to All Electronic Representations
Upon examining the language of the current version of Model Rule 8.5(b)(2), the lack of interest of the attorney's home jurisdiction in applying its ethics laws to an electronic representation is problematic under the dormant commerce clause. Model Rule 8.5(b)(2) initially applies the ethics "rules of the jurisdiction in which the lawyer's conduct occurred, or, if the predominant effect of the conduct is in a different jurisdiction, the rules of that jurisdiction."273 It is unclear where an attorney's conduct "occurred" in an electronic representation of a client, and neither the rule nor its comments define these terms. Assuming the attorney and client are located in different states, the attorney's conduct effectively occurs in two jurisdictions: in the attorney's home jurisdiction where the attorney initiates the Internet communication and in the jurisdiction where the client is located and receives the communication. Therefore, depending on the point of view used, equally persuasive arguments can be presented for the attorney' s conduct having "occurred" in the attorney' s home jurisdiction as well as in the client' s home jurisdiction. Consequently, comparing the interests of the jurisdictions concerned according to where "the lawyer' s conduct occurred," as stated in the first part of the test set out in Model Rule 8.5(b)(2), is unhelpful because it is impossible to locate a single, discrete jurisdiction where the activity actually took place.
Examining where the "predominant effect" of an electronic representation occurs, as used in the second part of the test used in Model Rule 8.5(b)(2), yields a more meaningful comparison of the interests of the potential jurisdictions under a dormant commerce clause analysis. In an attorney's electronic representation of a client, the jurisdiction where the client is located (the client's home jurisdiction) has a legitimate consumer protection interest in applying its ethics rules to this activity. For example, in the hypothetical electronic representation set out above, Virginia has a legitimate interest in regulating the representation because the consequences of the representation ultimately are felt in Virginia. This is why the safe harbor language of the current version of Model Rule 8.5(b)(2) is problematic under the dormant commerce clause.
This language would not subject an attorney to discipline if his or her conduct conformed "to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect of the lawyer's conduct" occurred.274 As explained above, the limited authority available on where the "predominant effect" of an attorney's conduct occurs gives an attorney, in almost all situations, reasonable grounds to argue that the ethics law of his or her home jurisdiction apply to electronic representations. Some of this authority appears to consider where the attorney physically drafted documents and conducted research for the representation concerned,275 and in almost any electronic representation this conduct will occur in the attorney's home jurisdiction.
Certainly, in this hypothetical situation, the Ohio attorney would have conducted any research regarding whether the apartment complex discriminated against the mother under applicable fair housing laws in his Ohio office. Similarly, the Ohio attorney would have drafted any documents needed in the representation in his Ohio office. The case and administrative authority would add to the attorney's practical arguments that he reasonably believed that Ohio ethics laws governed the electronic representation of the Virginia resident because Ohio is his licensing jurisdiction and the physical location in which he conducted the legal work. Thus, the safe harbor provision to Model Rule 8.5(b)(2) results in the ethics laws of the attorney's home jurisdiction almost always applying to electronic representations of clients.
Nevertheless, as established above, the attorney's home jurisdiction has little to no interest in applying its ethics laws to electronic representations and thus derives no benefit from regulating this activity. Therefore, a choice of law rule that results in always applying the ethics law of the attorney's home jurisdiction to an attorney's conduct in electronic representations fails to meet the minimum constitutional threshold required under the dormant commerce clause for the application of that jurisdiction's laws.276
In fact, always applying the ethics regime of the attorney's home jurisdiction to electronic attorney representations ignores the legitimate interest of the client's jurisdiction in deciding how to best protect its residents. Thus in the hypothetical situation the safe harbor language would allow Ohio law to control the type of legal representation that a Virginia resident could use in order to get legal advice regarding an incident that occurred in Virginia and in order to take action in Virginia. This constitutes an impermissible burden on this activity. Consequently, due to the safe harbor language, the current version of Model Rule 8.5(b)(2) violates the dormant commerce clause.
States should consider adopting the 2002 version of Model Rule 8.5(b)(2) without the final sentence containing the safe harbor language. This would allow only the jurisdiction where the largest effect from each representation is experienced to apply its ethics rules to electronic representations. In many situations, this is going to be the jurisdiction where the client physically is located, especially when the client acts upon the legal advice obtained through the electronic representation in the client's home jurisdiction.
Presumably, the safe harbor language is intended to protect attorneys from facing conflicting obligations under the ethics rules of multiple jurisdictions. This language, however, in conjunction with the limited authority on where the "predominant effect" of multijurisdictional representations occurs and practical arguments regarding an attorney's reasonable beliefs about where such effect occurs, will likely result in the application ofthe ethics laws ofthe attorney's home jurisdiction to all electronic representations. This outcome violates the dormant commerce clause because the attorney's home jurisdiction obtains very little benefit from the application of its laws in the vast majority of situations. Three jurisdictions, Florida, Indiana and New Jersey, have already adopted the 2002 version of Model Rule 8.5 without the final safe harbor sentence.277
Alternatively, jurisdictions could adopt a choice of ethics law rule that applies the ethics laws ofthe client' s jurisdiction to all electronic representations involving residents of that state. A few states have done this, in effect, for all multijurisdiction representations involving attorneys not licensed by the state that occur within that state's boundaries, regardless of whether or not the representation occurs over the Internet.278 This potentially could provide more clarity concerning which jurisdiction's rules would apply to a particular electronic representation.
However, as explained above, it is very difficult to determine exactly where an electronic representation "occurs." Thus, even under such seemingly "bright line" rules, it may still be difficult to determine exactly when the ethics rules of a particular jurisdiction apply to an electronic legal representation. Furthermore, depending on the circumstances of the particular representation, the representation may have a greater relationship with the attorney's home jurisdiction than the client's jurisdiction despite components of the representation having occurred in the client's jurisdiction. An example of this would be when a client communicates with an attorney over the Internet about a matter governed by the law of the attorney's home jurisdiction and requests the attorney physically to take some legal action in the attorney's home jurisdiction, such as submitting documents to a court or office located in that jurisdiction or engaging in a legal transaction with other parties located in the attorney's home jurisdiction. In these cases, the attorney's home jurisdiction would have a significant interest in proscribing the ethical limitations of the representation.
Conversely, adopting the 2002 version of Model Rule 8.5(b) without the safe harbor language contained in the last sentence of subsection 2 would still allow some flexibility in applying the ethics rules of the jurisdiction with the most significant relationship to a particular electronic representation. Moreover, this mie would avoid the unconstitutional application of the legal ethics rules of the attorney's home jurisdiction to electronic representations in which that jurisdiction has very little to no interest. Instead of applying the home jurisdiction's ethics laws when any remotely plausible connection can be drawn between that jurisdiction and the representation at issue, which always will be possible in an electronic representation, this choice of ethics law rule would allow a court to examine the particular circumstances of each electronic representation and apply the ethics rules of the jurisdiction where the most significant effect of the representation is felt.
A third option would be to retain the current safe harbor language but amend Model Rule 8.5(b)(2) to include definitions for "conduct occurred" and "predominant effect" that focus on the location of the client affected by the legal representation and the jurisdiction where the legal advice provided in the representation is acted upon and has effect. These definitions would eliminate any basis for an attorney to argue that the "predominant effect" of a legal representation occurred in the jurisdiction where the attorney simply drafted legal documents or conducted legal research. Therefore, by either eliminating the safe harbor language currently contained in Model Rule 8.5(b)(2) or by precisely defining the key terms "conduct occurred" and "predominant effect," a jurisdiction can align the choice of ethics law determination more closely to the actual interests the potential jurisdictions have in and the benefits they receive from applying their legal ethics regimes to electronic representations.
1 Pa. Bar Ass'n Comm. on Legal Ethics and Prof 1 Responsibility, Informal Op. 98-85 (1998).
2 See Brett R Harris, Counseling Clients Over the Internet, 1 8 COMPUTER & INTERNET LAW. 4, 4 (200 1 ) (noting that e-mail "can be transmitted quickly and without undue expense" and that e-mail "at times [is] more practical and economical than telephone or facsimile transmissions"). Additionally, the use of e-mail attachments can speed up client review of document drafts and consequently increase the speed at which attorneys can draft and have documents filed. John A. Wetenkamp, Note, The Impact of E-mail on Attorney Practice and Ethics, 34 McGeorgeL Rev. 135, 136 (2002) (stating that e-mail can "save clients money because it tends to streamline communications and it costs less than a telephone call"); see Harris, supra, at 4 (stating that e-mail attachments can "be revised by the recipients electronically and then returned to the sender, in effect creating a collaborative effort to get documents into final form").
Attorney use of e-mail to communicate with clients originally was controversial. See Jason Krause, Guarding the Cyberfort, ABA. J., July 2003, at 42, 43 (discussing the "debate within the legal community" from 1995 to 1999 "about whether it was safe to practice law over the Internet" and stating that some firms even issued bans on attorney use of e-mail). In 1999, the American Bar Association ("ABA") issued an ethics opinion stating that a lawyer could transmit client information by e-mail under most circumstances without violating professional ethics rules. See ABA Comm. on Ethics and Prof !Responsibility, Formal Op. 99^113 (1999) (finding that an attorney can "transmit information relating to the representation of a client by unencrypted e-mail sent over the Internet" without violating professional ethics rules "because the mode of transmission affords a reasonable expectation of privacy from a technological and legal standpoint"). Many attorneys now routinely communicate with clients through e-mail. See ABA Legal Technology Resource Center, June 2000 Telephone Survey: How Attorneys Use E-Maü, http://www.lawtechnology.org/surveys/june2000.html (last visited Sept. 1 1,2006) (indicating that, according to a June 2000 telephone survey, ninety-four percent of attorneys used e-mail in their practices and seventy-one used e-mail to communicate with clients).
Despite the current widespread use of e-mail by attorneys to communicate with clients, some commentators still point out the confidentiality risks posed by communicating with clients in this manner due to the risk of unauthorized interception of e-mail. See, e.g., Robert M. Bastress & Joseph D. Harbaugh, Taking the Lawyer's Craft into Virtual Space: ComputerMediated Interviewing, Counseling and Negotiating, 10 CLINICAL L. REV. 115, 151 (2003) ("Concerns continue to exist regarding the ability of hackers and persons with ulterior motives to intercept emails and also the capacity of service providers to intrude on communications."); R. Scot Hopkins & Pamela R Reynolds, Redefining Privacy and Security in the Electronic Communication Age: A Lawyer's Ethical Duty in the Virtual World of the Internet, 16 GEO. J. LEGALETHICS 675, 676 (2003) ("[T]he ease with which email communications may be intercepted make it a particulary ripe target for even unsophisticated email thieves, and that this attribute is unique to Internet email." (emphasis omitted)).
3 Maria Perez Crist, The ?-Brief: Legal Writing for an Online World, 33 N.M. L. REV. 49, 54 (2003) (describing the federal courts' Case Management/Electronic Case Files program that "allows attorneys to log in to court [W]eb sites with a court-issued password and submit documents to the court electronically").
4 See generally Jason Krause, Making Rain on the Net, ABA. J., Aug. 2006, at 46, 47-5 1 (discussing how law firms currently are marketing themselves on the Internet, including hosting "blogs" on specific practice areas in which the firm practices, and how "more Americans use [Internet] search engines to find a lawyer than any other source"). According to a recent ABA survey, "all firms with 50 or more lawyers now have Web sites, and 68 percent of all firms have a site." Id. at 48.
5 See, e.g., AttorneyPages.com, http://www.attorneypages.com (last visited Sept. 13, 2006); Lawyers.com, http://www.lawyers.com (last visited Sept. 13, 2006); LegalMatch.com, http:// www.legalmatch.com (last visited Sept. 13, 2006). "Many on-line directories are contained within [W]eb sites as parts of other information and services. In other words, the directories that help consumers find lawyers are a subsidiary part of a site with general consumer information about legal issues or the subject matter of interest to the consumer." William Hornsby, Improving the Delivery of Affordable Legal Services Through the Internet: A Blueprint for the Shift to a Digital Paradigm, in CONFERENCE PROGRAM 7 (1999), http://www.unbundledlaw .org/program/program.htm. Hornsby is Staff Counsel to the ABA Standing Committee on the Delivery of Legal Services. Id. at 1.
6 See Terry Carter, Casting for Clients, ABA. J., Mar. 2004, at 35, 35, 37 (discussing an attorney who screens potential clients through e-mail "which has the added value of being more efficient than fielding phone calls" and a Web site, http://www.legalmatch.com, that allows potential clients to "fill out forms online detailing their circumstances and problems" for lawyer review); Hornsby, supra note 5, at 12 (stating that "law firms are using [W]eb sites for automated intake and screening in several different practice settings").
7 See, e.g., Lawyers.com, http://www.lawyers.com (last visited Sept. 1 3, 2006); LegalMatch .com, http://www.legalmatch.com (last visited Sept. 13, 2006). For a discussion of how an attorney-client relationship can be created through such Web sites, see infra Part LC.
8 See infra Part LA for a more in-depth description of electronic bulletin boards and chat rooms that allow attorneys to provide legal advice to users.
9 See infra notes 30-32 and accompanying text.
10 "Unbundling" of legal services involves "a lawyer and client [agreeing] to limit representation to discrete, specified tasks." DEBORAH L. RHODE, ACCESS TO JUSTICE 100 (2004); see abo Mark Hansen, Helping Self-Helpers, A.B. A. J., Sept. 2004, at 72, 72 (describing unbundling of legal services as situations when a "lawyer contracts to perform specific, limited work for the client without taking on responsibility for the entire case").
11 See Hansen, supra note 10, at 72 (noting that "since 2000, six states [California, Colorado, Florida, Maine, Washington, and Wyoming] have formally adopted various changes in their ethics codes or civil procedure rules to accommodate unbundling and assisted pro se representation" and "at least 1 1 other states have begun to study the issue actively").
12 See Catherine J. Lanctot, Attorney-Client Relationships in Cyberspace: The Peril and the Promise, 49 DukeLJ. 147, 218 (1999) (stating that "each time that lawyers have sought to adapt existing media to answer legal questions posed by laypeople, the organized bar has moved to regulate - potentially out of existence - such activity" and going on to examine how different states have treated nontraditional forums for attorneys to provide legal advice where the attorney has limited ability to follow up on the advice given or to ask additional questions of the client).
13 Compare D.C. Bar Legal Ethics Comm., Op. 316 (2002) (allowing "lawyers to take part in on-line chat rooms and similar arrangements through which attorneys engage in backand-forth communications, in 'real time,' or nearly real time, with Internet users seeking legal information," but advising attorneys that "if an attorney-client relationship is formed through cyberspace communications" the "relationship brings to bear all of the responsibilities and benefits defined under the D.C. Rules governing attorney-client relationships"), and N. Y. State Bar Ass'n Comm. on Prof 1 Ethics, Op. 709 (1998) (finding that "using the Internet to take orders for trademark searches, conduct trademark searches, render legal opinions and file trademark applications is analogous to conducting a law practice by telephone or facsimile machine and is likewise permissible, subject to the same restrictions applicable to communication by those means"), with Ariz. Comm. on Rules of Prof 1 Conduct, Formal Op. 97-04 (1997) (stating that "lawyers should not answer specific legal questions from lay people through the Internet unless the question presented is of a general nature and the advice given is not fact-specific"), and FIa. Bar Comm. on Prof 1 Ethics, Op. A-00-1 (2000) (prohibiting "an attorney's participation in a chat room" as a direct, "in person" solicitation).
14 See, e.g. , Free Advice, http://www.freeadvice.com (last visited Sept. 13, 2006) (including a disclaimer saying "[A] Forum should not be relied upon and is not a substitute from any attorney licensed in your jurisdiction whom you have retained to represent you.").
15 MODEL RULES OF PROF'L CONDUCT R. 5.5, 8.5 (2002); see also infra Part n.C (explaining recent amendments to Model Rule 8.5(b)).
16 See infra Part III.
17 See infra notes 166-69 and accompanying text.
18 S. Pac. Co. v. Arizona, 325 U.S. 761, 769 (1945) ("For a hundred years it has been accepted constitutional doctrine that the commerce clause, without the aid of Congressional legislation, thus affords some protection from state legislation inimical to the national commerce, and that in such cases, where Congress has not acted, [the United States Supreme Court], and not the state legislature, is under the commerce clause the final arbiter of the competing demands of state and national interests.").
19 See infra notes 179, 199-203 and accompanying text.
20 See infra Part VLB.2.
21 See infra Part VI.C.
22 See infra Part VLB.1.
23 See, e.g., Free Advice, http://www.freeadvice.com (last visited Sept. 13, 2006); see also D.C. Bar Legal Ethics Comm, Op. 316 (2002) (describing a chat room exchange between an individual seeking advice on immigration law and a responsive post from an attorney); Lanctot, supra note 12, at 152-53 (describing Web sites with bulletin boards that "encourage laypeople to post legal questions, identifying their state of residence, and suggest that lawyers who are licensed to practice in those states post responses"); Brad Hunt, Comment, Lawyers in Cyberspace: Legal Malpractice on Computer Bulletin Boards, 1996 U. CHI. LEGAL F. 553, 554 ("Legal bulletin boards are notice boards in cyberspace where people discuss legal issues and ask and answer questions about the law."). Some examples from FreeAdvice.com of the particular legal topics into which a bulletin board may be divided include "Accident and Injury Law," "Consumer & General Practice Law," "Family Law," and "Real Estate Law."
24 FreeAdvice.com, http://www.freeadvice.com (last visited Sept. 13, 2006).
25 See D.C. Bar Legal Ethics Comm., Op. 316,atn.3 (describing one "multi-purpose site" offering real time chats with attorneys for fifteen dollars for a single chat or an annual subscription to the chat room for thirty dollars per month and another Web site that "charged $10 for a one-week subscription"); Darren Franklin, Hanging a Shingle on the Information Superhighway: Legal Advice on the Internet and Problems of Prohibited Client Solicitation and Unintended Attorney-Client Relationships,!^ STAN. TECH. L. REV. 2,\A, http://stlr.stanford .edu/STLR/Articles/01_STLR_2/index.htm (describing USLaw.com, which "offers a $9.95 single-use ($24.95 annual subscription) 'Ask a Lawyer' feature that lets users have 'private one-on-one live chats with licensed lawyers'").
26 See, e.g., Lawyers.com, http://www.lawyers.com (last visited Sept. 13, 2006); Legal Match.com, http://www.legalmatch.com (last visited Sept. 13, 2006).
27 See CaI. Bar Standing Comm. on Prof 1 Responsibility and Conduct, Formal Op. 2005-168 (2005) (describing a hypothetical firm Web site that allows prospective clients to make their initial inquiry to the firm by filling out an electronic form asking for the inquirer' s name and contact information as well as a short description of his or her legal problem and any initial questions the inquirer has). The client intake forms available on Web sites can range from a one-page form asking for very basic information, to several screens that ask for, among other things, a detailed description of the client's situation and needs. Compare New Jersey Real Estate & Bankruptcy Lawyers, http://www.njdebtreUef.com (last visited Sept. 13, 2006), with LegalMatch.com, http://www.legalmatch.com (click "Present Your Case") (last visited Sept. 13, 2006).
28 Terry Carter, Law Tech Generations: Newer Versions of Firm Web Sites Boldly Go Where Few Law Firms Have Gone Before, A.B.A. J., Feb. 2004, at 22.
29 See Franklin, supra note 25, ? 5-6 (describing "[http://]www.legalopinion.com, where visitors can get legal advice for $39.95 a question" and "the LegalEase Home Page," which "charges visitors $25 to answer their immigration law questions").
30 See, e.g., FIa. Bar Comm. on Prof 1 Ethics, Op. 00-4 (2000) (allowing attorneys "to provide limited, on-line legal services to Florida residents on simple matters not requiring office visits or court appearances" such as "simple wills, incorporation papers, real estate contracts, residential leases and uncontested marital agreements ... as long as the attorney complies with the ethics rules"); NY. State Bar Ass'n Comm. on Prof 1 Ethics, Op. 709 (1998) (finding that "using the Internet to take orders for trademark searches, conduct trademark searches, render legal opinions and file trademark applications is analogous to conducting a law practice by telephone or facsimile machine and is likewise permissible, subject to the same restrictions applicable to communication by those means"); Va. State Bar Standing Comm on Legal Ethics, Op. 1791 (2003) (allowing an attorney to engage in a bankruptcy practice in which he would communicate with clients without any face-to-face meetings but "via electronic communication so long as the content and caliber of those services otherwise comport with the duties and competence and communication").
31 See Carter, supra note 6, at 35 (discussing an attorney who screens potential clients through e-mail, "which has added the value of being more efficient than fielding phone calls"); Hornsby, supra note 5, at 13, 16 (stating that providing "on-line advice overcomes geographic obstacles and provides a convenient alternative to a face-to-face encounter" and that "using a digital strategy to expand the geographic area would allow the lawyer access to a larger volume of unbundled cases without consuming a larger percentage of the marketplace for the immediate jurisdiction").
32 Hunt, supra note 23, at 556 ("[L]awyers in cyberspace will probably receive many questions from people who live in states (or even nations, given the international nature of cyberspace) other than those in which they are licensed to practice law.").
33 RHODE, supra note 10, at 13.
36 Homsby, supra note 5, at 2 (citing the results of a 1992 survey conducted by the ABA indicating that forty-three percent of moderate income households with a legal need consulted an attorney); see also Rhode, supra note 10, at 79 (citing the same survey and stating that "about two-thirds of the civil legal needs of moderate-income consumers were not taken to lawyers or the judicial system").
37 Homsby, supra note 5, at 2; see also MODEST MEANS TASKFORCE, AM. B. ASS'N SEC. OF LINE, HANDBOOK ON LIMITED SCOPE LEGAL ASSISTANCE 8 (2003) [hereinafter MODEST MEANS TASKFORCE] (referring to an ABA study finding that '7 out of 10 low-income households and 6 out of 10 moderate-income households that had legal problems did not use our legal system to resolve them").
38 Homsby, supra note 5 , at 2 (citing an ABA survey indicating that twenty-three percent of households surveyed dealt with the legal problem on their own and twenty-six percent of households took no action at all).
39 Rhode, supra note 10, at 80; see also Cristina L. Underwood, Comment, Balancing Consumer Interests in a Digital Age: A New Approach to Regulating the Unauthorized Practice of Law, 79 Wash. L. Rev. 437, 442 (2004) ("Many low and moderate-income households simply cannot afford the cost of personal legal services.").
40 Rhode, supra note 10, at 79.
41 See Homsby, supra note 5, at 3 (citing a Maryland study that found that "57 percent of pro se litigants [in Maryland] proceeded pro se because they could not afford a lawyer").
42 RHODE, supra note 10, at 14. Between sixty-five percent and ninety percent of uncontested divorces involve at least one pro se party. Id. at 82; see also Modest Means TaskForce, supra note 37, at 6 (stating that "[nationally, in three or four out of every five [domestic relations] cases, one of the two parties is unrepresented" and that "both parties are unrepresented in two or three out of every five cases").
43 RHODE, supra note 10, at 14.
44 Id. at 80; see also Modest Means Task Force, supra note 37, at 12 n.30 (referring to an Oregon survey indicating that about seventy-five percent of people with a legal need who did not retain counsel were "dissatisfied with the outcome of the case").
45 RHODE, supra note 10, at 80.
46 See HENRY H PERRTTT, JR., HOWTO PRACTICE LAW WITH COMPUTERS 59 (3d ed. 1998) (noting that the lack of affordability of legal services by middle-class Americans has created the potential "for deploying computer technology creatively to define entirely new legal services products for ordinary citizens").
47 See D.C. Bar Legal Ethics Comm., Op. 316 (2002) ("Advocates of the provision of low-cost legal advice through on-line chat rooms and similar innovative services make the important point that these services offer great potential for providing low-cost legal services to low and moderate income persons."); Lanctot, supra note 1 2, at 250 (stating that providing legal advice over the Internet "has the potential to serve the unmet legal needs of millions of Americans of low and moderate income who cannot afford to hire attorneys, at a time when the number of lawyers in the United States continues to expand"); Hunt, supra note 23, at 555 ("Legal information is also considerably less expensive when obtained in cyberspace rather than in person.").
48 See Lanctot, supra note 12, at 253 (stating that "[i]n many ways, giving specific legal advice to clients online, while expressly disclaiming any additional responsibilities, is a classic example of discrete task representation" and that "[b]y unbundling these services, the lawyer can give at least limited assistance to the person who needs help . . . and the client can obtain recourse that he otherwise could not obtain").
49 See MODEST MEANS TASK FORCE, supra note 37, at 2 (describing "limited scope legal assistance" as "a designated service or services, rather than the full package of traditionally offered services"); Rhode, supra note 10, at 100 (describing unbundling of legal services as where "a lawyer and client agree to limit representation to discrete, specified tasks"); Lanctot, supra note 12, at 253 ('The model is that of a menu of legal tasks from which the client, in consultation with the lawyer, is permitted to purchase only the services that he needs or can afford."); Hansen, supra note 10, at 72 (describing unbundling of legal services as a "lawyer contracting] to perform specific, limited work for the client without taking on responsibility for the entire case").
Several other terms are used to describe this type of representation including '"discrete task' representation, 'limited scope assistance', or just 'limited assistance' or 'limited representation. ' " Modest Means TaskForce, supra note 37, at 3. "Common forms of unbundled [legal services] involve court appearances or trial representation; telephone, Internet, or brief inperson advice; and assistance with negotiations, pretrial discovery, or document preparation." Rhode, supra note 10, at 100.
50 MODEST MEANS TASKFORCE, supra note 37, at 7, 9 (stating that "[m]any pro se litigants have enough disposable income to pay for the limited representation they need" and that "[m]any of those who opt out, or who are forced out, of the legal system would use the legal system to resolve their disputes, and retain lawyers to represent them, if lawyers offered them reasonable limited-service options"). "Limited representation, therefore, is an important means to provide people with access to justice." Id. at 9.
51 MODEL RULES OF PROF'L CONDUCT R. 1 .2(c) (2002) (stating that a "lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent"); Am. B. Ass 'n, REPORT OF THE COMMISSION ON EVALUATION OF THE RULES OF PROFESSIONAL CONDUCT 145 (2000) (stating that the intent of revising Rule 1 .2(c) was "to provide a framework within which lawyers may expand access to legal services by providing limited but nonetheless valuable legal service to low or moderate-income persons who otherwise would be unable to obtain counsel"). Moreover, many of the ethics opinions dealing with unbundled legal services "identify Model Rule 1 .2 as the source of authority for limited-service agreements." Modest Means TaskForce, supra note 37, at 84.
52 See, e.g. ,Ariz. Comm. onRulesof Prof 1 Conduct, Op. 05-06 (2005) (approving "limited scope representation" as long as certain conditions are met); Colo. Bar Ass'n Ethics Comm., Formal Op. 101 (1998) (allowing an attorney to provide "unbundled legal services in both litigation and non-litigation matters" as long as the attorney can "make a sufficient inquiry into and analysis of the applicable law and facts); Term. Board of Prof 1 Responsibility, Formal Op. 2005-F-15 1 (2005) (acknowledging that Rule 1.2(c) "allows a lawyer to limit the scope of a client's representation if the client consents and if the limitation is reasonable under the circumstances" and approving a pro se clinic where attorneys provide "limited advice and assistance without becoming counsel of record" to domestic relations litigants); see abo MODEST MEANS TASKFORCE, supra note 37, at 1 14-20, 124-27 (describing how Colorado, Maine, and Washington have revised their ethics rules to facilitate the provision of unbundled legal services); Hansen, supra note 10, at 72 (noting that "since 2000, six states [California, Colorado, Florida, Maine, Washington, and Wyoming] have formally adopted various changes in their ethics codes or civil procedure rules to accommodate unbundling and assisted pro se representation. And ... at least 1 1 other states have begun to study the issue actively.").
53 RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 14 introductory note (2000) ("A fundamental distinction is involved between clients, to whom lawyers owe many duties, and nonclients, to whom lawyers owe few duties.... Prospective and former clients receive certain protections, but not all of those due to clients.").
54 See D.C. Bar Ethics Comm., Op. 302 (2000) (suggesting the use of "disclaimers ... on 'click through' boxes or pages, which require visitors to verify that they have read important information by clicking on a specified area of the screen before proceeding" in an opinion addressing an Internet Web site seeking plaintiffs for class action lawsuits).
55 Lanctot, supra note 12, at 193 ("I expect that neither courts nor bar disciplinary authorities are likely to be sympathetic to cyberspace attorneys who rely on disclaimers as all-purpose shields. In my view, if the legal advice given is specifically tailored to the factual circumstances presented, that conduct will suffice to create an attorney-client relationship, regardless of what boilerplate disclaimers the lawyer attaches to the advice.").
Professor Lanctot goes on, however, to conclude that disclaimers might be effective in limiting the scope of an electronic representation. Id. at 195 ("[A] disclaimer that limited the online lawyer's obligations to providing a competent legal response, without further requiring the lawyer to take steps to protect the client's interest, arguably could be consistent with [the Model Rules of Professional Conduct and the Restatement (Third) of the Law Governing Lawyers], if the circumstances of the exchange reflected informed consent."). Nevertheless, "there are core attributes of the attorney-client relationship, such as basic competency, that cannot be bargained away." Id.; see also Modest Means Task Force, supra note 37, at 6 (stating that "lawyers owe the same duties of loyalty, confidentiality, diligence, and competence to limited-service clients that they do to full-service clients").
56 See Lanctot, supra note 12, at 184 ("In short, lawyers who provide specific legal advice online may find it difficult at some future point to persuade a court or bar counsel that they did not intend to incur any professional obligations by answering questions in cyberspace.").
57 RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 14 (2000); see also Lanctot, supra note 12, at 168-69 (setting out and explaining the Restatement test for formation of an attorney-client relationship).
58 Lanctot, supra note 12, at 169 ("[T]he online posting of a specific legal question by a layperson manifests the intent to have a lawyer perform legal services - specifically, to provide legal advice.").
59 Id. ('The lawyer can also manifest consent by performance - that is, by providing the requested legal advice.").
60 Id. at 169-70 ("[F]urnishing specific legal advice in response to the question, without more, can constitute consent regardless of the lawyer's subjective intent" because the attorney can "still incur the obligations of a professional relationship if the lawyer knows or reasonably should know that the questioner is reasonably relying on the lawyer's advice"); see also Franklin, supra note 25, \ 14 ("An attorney-client relationship, therefore, does not require an explicit agreement; it may arise by implication from a Web site visitor's reasonable expectation of legal representation and the online attorney's failure to dispel those expectations.").
61 Lanctot, supra note 1 2, at 1 83 ("[G]iving specific legal advice in response to a set of particular facts is the hallmark of the practice of law, while providing general information about the law is not. Second, it is reasonable for a putative client to rely on advice that is specifically tailored to his [or her] particular request, and the courts are clear that it is the reasonable belief of the client that will govern."); see also 111. State Bar Ass'n Comm. on Prof 1 Conduct, Op. 96-10 (1997) ("[L]awyers participating in chat groups or other on-line services that could involve offering personalized legal advice to anyone who happens to be connected to the service should be mindful that the recipients of such advise [sic] are the lawyer's clients, with the benefits and burdens ofthat relationship."); Or. State Bar Ass'n Board of Governors, Formal Op. 1991-101 (1991) ("In essence, the practice of law involves the application of a general body of legal knowledge to the problem of a specific entity or individual."); Underwood, supra note 39, at 450-52, 462-63 (2004) (describing the test that the majority of state courts use to determine whether the practice of law has occurred as examining whether the advice provided is tailored to the specific circumstances of the consumer).
62 See Modest Means Task Force, supra note 37, at 6 (stating that "lawyers owe the same duties of loyalty, confidentiality, diligence, and competence to limited-service clients that they do to full-service clients"); Hansen, supra note 10, at 72 (stating that in the larger context of unbundled legal services generally "[m]any of the [ethics] opinions also agree that an attorney-client relationship still exists when legal services are provided on a limited basis"). But see Model Rules of Prof'l Conduct R. 1.2 cmt. 7 (2002) ("Although an agreement for a limited representation does not exempt a lawyer from the duty to provide competent representation, the limitation is a factor to be considered when determining the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.").
63 MODEL RULES OF PROF'L CONDUCT R.1.18(b) (2002) ("Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation, except as Rule 1 .9 would permit with respect to information of a former client."); see also RESTATEMENT (THIRD) OFTHELAW GOVERNING LAWYERS § 15(l)(a) (2000) (stating that when an attorney has discussions with a prospective client about "the possibility of their forming a client-lawyer relationship for a matter and no such relationship ensues," the attorney must "not subsequently use or disclose confidential information learned in the consultation, except to the extent permitted with respect to confidential information of a client or former client").
Model Rule 1.18 defines a "prospective client" as a "person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter." MODEL RULES OF PROF'L CONDUCT R. 1.18(a) (2002). Comment 2 to the rule goes on to state that someone "who communicates information unilaterally to a lawyer, without any reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship, is not a 'prospective client.'" Id. R. 1.18 cmt. 2.
64 Id. R. 1.18(c).
66 Id. R. 1.18(d)(2); see also RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 15(2)(a) (2000) (stating that an attorney's firm may avoid disqualification due to contact with a prospective client if the "personally prohibited lawyer takes reasonable steps to avoid exposure to confidential information other than information appropriate to determine whether to represent the prospective client," and the firm properly screens the attorney).
67 MODEL RULES OF PROF'L CONDUCT R. 1.18(d)(1) (2002).
68 Id. R. 1.18 cmt. 5.
70 See Cal. Bar Standing Comm. on Prof'l Responsibility and Conduct, Formal Op. 2005-168 (2005) (stating that when a prospective client contacted an attorney through an intake form on the firm's Web site about a potential divorce representation, the attorney would need to know information such as "the names of the parties, children, [and] former spouses" in order to perform a proper conflicts check).
71 See MODEL RULES OF PROF'L CONDUCT R. 1.18 cmt. 4 (2002) ("In order to avoid acquiring disqualifying information from a prospective client, a lawyer considering whether or not to undertake a new matter should limit the initial interview to only such information as reasonably appears necessary for that purpose.").
72 See Cal. Bar Standing Comm. on Prof'l Responsibility and Conduct, Formal Op. 2005-168 (2005) (providing an example of some waiver language on an Internet client intake form).
73 See id. ("We do not believe that a prospective client's agreement to Law Firm's terms prevented a duty of confidentiality from arising on the facts before us, because Law Firm' s disclosures to [the prospective client] were not adequate to defeat her reasonable belief that she was consulting Law Firm for the purpose of retaining Law Firm."); see abo Barton v. U.S. Dist. Court for the Cent. Dist. of CaI., 410 F.3d 1104, 1107, 1109-12 (9th Cir. 2005) (holding that attorney-client privilege applied to information submitted through an Internet questionnaire seeking information on potential members of a class action despite a disclaimer stating that filling out the questionnaire did "not constitute a request for legal advice and [the person filling out the form was] not forming an attorney-client relationship by submitting this information").
74 Cal. Bar Standing Comm. on Prof'l Responsibility and Conduct, Formal Op. 2005-168 (2005).
75 Compare Ariz. Comm. on Rules of Prof'l Conduct, Op. 97-04 (1997) ("Communication with a potential client via cyberspace should not be considered either a prohibited telephone or in-person contact because there is not the same element of confrontation/immediacy as with the prohibited mediums. A potential client reading his or her e-mail, or even participating in a 'chat room' has the option of not responding to unwanted solicitations."); D.C. Bar Ethics Comm., Op. 316 ("The potentially greater immediacy of 'real time' communications in chat rooms, as opposed to other forms of written communications, may give rise to concerns similar to those about 'in person solicitation in circumstances or through means that are not conducive to intelligent, rational decisions,' D.C. Rule 7.1, comment . . . . On the other hand, attorney communications with potential clients in chat rooms are probably less potentially coercive than face-to-face communications."); Ill. State Bar Ass'n Comm. on Prof'l Conduct, Op. 96-10 (1997) ("On the other hand, lawyer participation in an electronic bulletin board, chat group, or similar service, may implicate Rule 7.3, which governs solicitation, the direct contact with prospective clients. The Committee does not believe that merely posting general comments on a bulletin board or chat group considered solicitation."); and Phila. Bar Ass'n Prof'l Guidance Comm, Op. 98-6(1998) ("In the opinion of the Committee, conversation interactions with persons on the Internet do not constitute improper solicitation, but in any one particular case the interaction may evolve in such a way that it could be characterized as such."), with Fla. Bar Comm. on Prof'l Ethics, Op. A-00-1 (2000) (prohibiting "an attorney's participation in a chat room in order to solicit professional employment" as an inperson solicitation); Mich. Standing Comm. on Prof'l and Judicial Ethics, Op. RI-276 (1996) ("[I]f a lawyer is participating in interactive communication on the Internet, carrying on an immediate electronic conversation. If the communication was initiated by the lawyer without invitation, such 'real time' communications about the lawyer's services would be analogous to direct solicitation, outside the activity permitted by MRPC 7.3."); Utah State Bar Ethics Advisory Opinion Comm., Op. 97-10 (1997) (finding "that an attorney's advertising and solicitation through a chat group are 'in person' communications under Rule 7.3(a) and are accordingly restricted by the provisions ofthat rule" although finding that postings to "newsgroups" are "analogous to placing an advertisement for legal services in a narrow-interest magazine or newspaper" and are allowable); and W. Va. Lawyer Disciplinary Board, Op. 98-03 (1998) (finding "that solicitations via real time communications on the computer, such as a chat room, should be treated similar to [prohibited] telephone and in-person solicitations"). For a discussion of how state legal ethics rules on advertising and solicitation, as well as other state statutes, apply to lawyers who send unsolicited e-mail (otherwise known as "spam") to potential clients, see generally William E. Homsby, Jr., Spamming for Legal Services: A Constitutional Right Within a Regulatory Quagmire, 22 J. MARSHALL J. COMPUTER & INFO. L. 97 (2003).
76 See Ariz. Comm. on Rules of Prof 1 Conduct, Op. 97-04 (stating that attorneys probably should not respond to specific legal questions posted in "chat rooms" or "news groups" because, in part, of "the inability to screen for a potential conflict with an existing client (in violation of ER 1.7)"); N.Y. StateBar Ass'n Comm. on Prof 1 Ethics, Op. 709 (1998) ("Practicing law for clients by means of the Internet does not give rise to any exemption from this fundamental obligation to avoid conflicts and not to undertake a new representation without checking to assure that it does not create an impermissible conflict."); Ohio Board of Comm' rs on Grievances and Discipline, Op. 99-9 (1999) ("As an attorney checks for conflicts when a client calls or comes to his office seeking legal services, an attorney must check for conflicts when a client e-mails seeking legal advice. The on-line intake form should provide a way for the law firm to make a conflicts check prior to reviewing the legal question.") ; Phila. B ar Ass'n Prof'l Guidance Comm., Op. 98-6 (stating that "in the course of an interaction with any person on the Internet an attorney/client relationship may begin with all that such a relationship implies including creation of potential conflicts of interest (see Rules 1.7 and 1.9)"); S.C. Ethics Advisory Comm., Op. 94-27 (stating that in an electronic representation the "attorney must obtain sufficient information to identify his client in order to make a complete conflicts inquiry"); Utah State B ar Ethics Advisory Opinion Comm., Op. 97-10 (stating that an attorney advertising and communicating over the Internet "may be unable to screen for potential conflicts as required by Rules 1.7, 1.8, 1.9, and 1.10").
77 See Ariz. Comm. on Rules of Professional Conduct, Op. 97-04 (1997) (stating that attorneys probably should not respond to specific legal questions posted in "chat rooms" or "news groups" because, in part, of "the possibility of disclosing confidential information (in violation of ER 1.6"); D.C. Bar Ethics Comm., Op. 316 (2002) (stating that an attorney engaging in an electronic representation of a client "must also safeguard the secrets and confidences ofthat client under Rule 1.6," which may require the attorney "even if a communication begins as a public communication in a chat room or similar exchange service ... to reserve his or her communications for the eyes of a particular advice seeker only"); Ohio Board of Commissioners on Grievances and Discipline, Op. 99-9 (1999) (stating that in a legal representation through e-mail the "confidences and secrets of the e-mail clients must be protected under DR 4-101"); Phila. Bar Association Professional Guidance Comm., Op. 98-6 (1998) (stating that "in the course of an interaction with any person on the Internet an attorney/client relationship may begin," which would include "expectations of confidentiality"); S.C. Ethics Advisory Comm., Op. 94-27 (1994) (stating that "the confidentiality requirements of Rule 1.6 are implicated by any confidential communication which occurs across electronic media, absent an express waiver by the client"); Utah State Bar Ethics Advisory Opinion Comm., Op. 97-10 (1997) (stating that in communicating with a client or prospective client over the Internet "it may be difficult to protect confidential communications under Rules 1.6 and 1.9").
78 D.C. Bar Ethics Comm., Op. 316 (2002) (stating that in an electronic representation of a client, an "attorney must ensure that such requirements as that of competence under D.C. Rule 1.1, diligence and zeal under Rule 1.3, and adequate communication under Rule 1.4 are met"); Ohio Board of Comm'rs on Grievances and Discipline, Op. 99-9 (1999) ("In providing answers to e-mail questions a lawyer must act competently under DR 6-101(A)."); Va. State Bar Standing Comm. on Legal Ethics, Op. 1791 (2003) (stating that with regard to a legal representation in which an attorney communicates with a client by e-mail without in-person meetings, "[s]o long as the requisite information is given, received, analyzed and acted upon, the attorney has met his duty of competency"); see also Model Rules of Prof'l Conduct R. 1.2 cmt. 7 (2002) (stating that brief consultation with a client before rendering legal advice may be appropriate unless "the time allotted was not sufficient to yield advice upon which the client could rely"); Lanctot, supra note 12, at 252-53 (exploring whether a lawyer can meet his or her duty of diligence under Model Rule 1.3 "when a lawyer gives a client specific legal advice, but does not volunteer additional information about other legal issues that might lurk beneath the surface").
79 See J.T. Westermeier, Ethics and the Internet, 17 GEO. J. LEGAL ETHICS 267, 311 (2004) (stating that "[t]he variances among states and countries in ethical rules applicable to [W]ebsites and electronic communications greatly complicates any analysis of ethical considerations" and that "there is little likelihood that uniformity on a multi-jurisdictional basis could be achieved").
80 See infra notes 81-116 and accompanying text.
81 1 GEOFFREY C. HAZARD, JR. & W. WILIIAMHODES, THE LAW OF LAWYERING § 1.11, at 1-19 (3d ed. 2003). Although adopted in 1969, the Model Code was not effective until 1970. Id.
82 RONALD D. ROTUNDA & JOHN S. DZXENKOWSKI, PROFESSIONAL RESPONSIBILITY: A STUDENT'S GUIDE 2005-2006, at 1 108 (2005) (noting that the Model Code had no counterpart to Model Rule of Professional Conduct 8.5).
83 See HAZARD & HODES, supra note 81, §1.11, at 1-19 ("Within a few years, the Code was officially adopted - by the courts, not merely by the bar associations - in virtually all American jurisdictions."); Mary C. Daly, Resolving Ethical Conflicts in Multijurisdictional Practice-Is Model Rule 8.5 the Answer, an Answer, or No Answer at All?, 36 S. TEX. L. REV. 715, 747 (1995) (stating that "[n]o reason existed to think about amending the Code to address multijurisdictional conflicts since the professional standards were identical from state to state"). However, while forty-nine states eventually adopted the original version of the Model Code, many states rejected or adopted substantially different amendments to the Code than those subsequently recommended by the ABA. CHARLES W. WOLFRAM, MODERN LEGAL ETHICS 56-57 (1986).
84 WOLFRAM, supra note 83, at 5 6-57 . Wolfram notes that this number includes states where the Model Code "had received only unofficial state bar approval." Id. at 56 n.45. "Official versions of a revised Code were not adopted in Illinois and Maine, for example, until 1980." Id. Furthermore, some states adopted the Model Code' s Disciplinary Rules and not its Ethical Considerations, while other states adopted the Ethical Considerations "as legally binding and enforceable norms." HAZARD & HODES, supra note 81, §1.11, at 1 -20; see also WOLFRAM, supra note 83, at 56 ("Not all states adopted all the parts of the Code. Several states omitted the Ethical Considerations.").
The Model Code contained three different types of statements: "[B]road general 'axiomatic' principles ('Canons'), aspirational and explanatory provisions ('Ethical Considerations,' referred to as 'ECs'), and black letter rules ('Disciplinary Rules,' referred to as 'DRs')." HAZARD & HODES, supra note 81, §1.11, at 1 -20. Wolfram notes that the Canons embodied "general concepts from which the Disciplinary Rules and Ethical Considerations derive," the Disciplinary Rules were "directly prescriptive," and the Ethical Considerations were '"aspirational in character' " and "may provide 'interpretive guidance'" for courts or agencies attempting to construe a Disciplinary Rule. WOLFRAM, supra note 83, at 58-59 (quoting the Preliminary Statement of the Model Code).
85 See Daly, supra note 83, at 747 (stating that "professional standards were identical from state to state. . . . [So] the number of conflict issues brought to the attention of courts, disciplinary bodies, and state bar associations was extremely small.").
86 See 2 HAZARD & HODES, supra note 81, § 66.4 n. 1, at 66-23 ("As originally promulgated in 1983, Model Rule 8.5 did not address the choice of law issue at all, leaving courts and disciplinary authorities to develop conflicts of law principles on a case-by-case basis.").
87 MODEL RULES OF PROF'L CONDUCT R. 8.5 (1983).
88 Id. cmt. 2.
89 Id. cmt. 3.
90 See Daly, supra note 83, at 749 (stating that the original version of Model Rule 8.5 "is strikingly silent about a jurisdiction's right to discipline a lawyer not admitted to the bar who nonetheless renders legal services within the jurisdiction").
91 2 HAZARD & HODES, supra note 81, § 66.2, at 66-5; Daly, supra note 83, at 756.
92 MODEL RULES OF PROF'L CONDUCT R. 8.5 (1993).
93 2 HAZARD & HODES, supra note 81, § 66.2, at 66-5 ('The ABA amended Rule 8.5 in 1993 to add a new section (b) addressing choice of law issues that can arise in lawyer discipline cases.").
94 See MODEL RULES OF PROF'L CONDUCT R. 8.5 (1993); see also Daly, supra note 83, at 757 ("Subsection (a) of the new Model Rule 8.5 essentially track[ed] the language of the prior rule."). In the 1993 version of Rule 8.5, subsection (a) stated:
Disciplinary Authority. A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction, regardless of where the lawyer's conduct occurs. A lawyer may be subject to the disciplinary authority of both this jurisdiction and another jurisdiction where the lawyer is admitted for the same conduct.
MODEL RULES OF PROF'L CONDUCT R. 8.5(a) (1993).
95 MODEL RULES OF PROF' L CONDUCT R. 8.5 cmt. 3 (1993); see also 2 HAZARD & HODES, supra note 81, § 66.4 n.l, at 66-23 (stating that the 1993 version of Model Rule 8.5(b) was "designed to ensure that, generally speaking, only a single conduct standard will be applied, no matter which jurisdiction disciplines a respondent lawyer").
96 MODEL RULES OF PROF'L CONDUCT R. 8.5(b) (1993).
97 Id. R. 8.5(b)(1). This was "unless the rules of the court [provided] otherwise." Id. One commentator described this portion of the rule as applying the "substance/procedure distinction" in making choice of law decisions "dealing with litigation conduct." Geoffrey J. Ritts, Professional Responsibility and the Conflict of Laws, 18 J. LEGAL PROF. 17, 87 (1993).
98 MODEL RULES OF PROF'L CONDUCT R. 8.5(b)(2)(i) (1993).
99 Id. R. 8.5(b)(2)(ii).
100 Id. One commentator has characterized this as a "harmonization" approach to making choice of law decisions that weighs the interests of the various jurisdictions and parties involved and attempts to accommodate those interests to the extent possible. Ritts, supra note 97, at 85-87; see also id. at 70 (stating that "'[h]armonization' appears to allow for sensitive case-bycase analysis of conflicts problems in the ethics area - analysis that can be responsive to the interests of states as coequal sovereigns in a federal system, and also to the needs of individual lawyers who may have reasonable fear of being whipsawed between the inconsistent rules of the states").
In its entirety, the 1993 version of Model Rule 8.5(b) stated:
(b) Choice of Law. In any exercise of the disciplinary authority of this jurisdiction, the rules of professional conduct to be applied shall be as follows:
(1) for conduct in connection with a proceeding in a court before which a lawyer has been admitted to practice (either generally or for the purposes ofthat proceeding), the rules to be applied shall be the rules of the jurisdiction in which the court sits, unless the rules of the court provide otherwise; and
(2) for any other conduct,
(i) if the lawyer is licensed only in this jurisdiction, the rules to be applied shall be the rules of this jurisdiction, and
(ii) if the lawyer is licensed to practice in this and another jurisdiction, the rules to be applied shall be the rules of the admitting jurisdiction in which the lawyer principally practices; provided, however, that if particular conduct clearly has its predominant effect in another jurisdiction in which the lawyer is licensed to practice, the rules of that jurisdiction shall be applied to that conduct.
MODEL RULES OF PROF'L CONDUCT R. 8.5(b) (1993).
101 Daly, granóte 83, at 760 ("Although 'principally practices' and 'predominant effect' are the central concepts in subsection (b)(2), Model Rule 8.5 fails inexplicably to define them.").
102 MODEL RULES OF PROF'L CONDUCT R. 8.5 cmt. 4 (1993).
105 See 2 HAZARD & HODES, supra note 81, § 66.4, at 66-8 (stating that under the 1993 version of Model Rule 8.5(b) "[o]utside of the litigation context, resolving the choice of professional responsibility rules is more difficult").
106 See Daynard v. Ness, 178 F. Supp. 2d 9, 19 (D. Mass. 2001) (stating that with regard to attorneys licensed by only one state, "the choice-of-law analysis is simply that the lawyer is always subject to the ethical obligations of the state that licensed him, regardless of where the conduct occurs"); 2 HAZARD & HODES, supra note 8 1 , § 66.4, at 66-8 (stating that in a situation where an attorney is licensed only in State A and is representing a "client based in State A" in "a transaction related to property located in State B," according to the 1993 version of Rule 8.5 "the lawyer is governed only by the rules of State A").
107 See 2 HAZARD & HODES, supra note 81, § 66.4, at 66-8 (stating that "Rule 8.5 does not directly address the issue of prelitigation conduct such as advertising or solicitation"); Daly, supra note 83, at 759 (noting that subsection (b)(1) of the 1993 version of Rule 8.5 "leaves unanswered the question [of] which jurisdiction's professional standards apply to the lawyer's conduct prior to the lawyer's admission" either generally or pro hac vice only for the purposes of the specific lawsuit concerned). "Subsection (b)(1) also ignores the possibility that a lawyer will undertake representation 'in connection with a proceeding in a court' without having been admitted either generally or pro hac vice." Id. at 760.
108 ABA Commission on Multijurisdictional Practice Statement, http://www.abanet.org/cpr/mjp/home.html (last visited Sept. 14, 2006) ("On August 12, 2002, the American Bar Association House of Delegates adopted all nine recommendations contained in the Commission's Final Report.").
109 The ABA also added language to Model Rule 8.5(a) governing disciplinary jurisdiction that gives a state explicit authority to discipline attorneys who provide legal services in that state without a license to practice in that state. This new language provided: "A lawyer not admitted in this jurisdiction is also subject to the disciplinary authority of this jurisdiction if the lawyer provides or offers to provide any legal services in this jurisdiction." Model Rules OF PROF'L CONDUCT R. 8.5(a) (2002).
110 Id. R. 8.5 cmt. 3.
111 Id. R. 8.5(b)(1).
112 AMERICAN BAR ASSOCIATION, Report of the Commission on Evaluation of the Rules of Professional Conduct, in 126 ANNUAL REPORT OF THE AMERICAN BAR ASSOCIATION 478 (2003) ("Recognizing the increasing use of alternative dispute-resolution processes, the Commission has broadened a number of Rules that formerly applied to 'courts' to make them apply to 'tribunals,' which include binding arbitration and other methods of formally adjudicating the rights of parties.").
113 MODEL RULES OF PROF'L CONDUCT R. 8.5(b)(2) (2002).
114 Id. R 8.5 cmt. 4.
115 Id. R 8.5(b)(2). In its entirety, the text of the 2002 version of Model Rule 8.5 states:
(a) Disciplinary Authority. A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction, regardless of where the attorney's conduct occurs. A lawyer not admitted in this jurisdiction is also subject to the disciplinary authority of this jurisdiction if the lawyer provides or offers to provide any legal services in this jurisdiction. A lawyer may be subject to the disciplinary authority of both this jurisdiction and another jurisdiction for the same conduct.
(b) Choice of Law. In any exercise of the disciplinary authority of this jurisdiction, the rules of professional conduct to be applied shall be as follows:
(1) for conduct in connection with a matter pending before a tribunal, the rules of the jurisdiction in which the tribunal sits, unless the rules of the tribunal provide otherwise; and
(2) for any other conduct, the rules of the jurisdiction in which the lawyer's conduct occurred, or, if the predominant effect of the conduct is in a different jurisdiction, the rules of that jurisdiction shall be applied to the conduct. A lawyer shall not be subject to discipline if the lawyer's conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect of the lawyer's conduct will occur.
Id. R. 8.5.
116 Id. R 8.5 cmt. 5.
117 A few other cases have used choice of ethics law rules with almost identical language to the 1993 version of Model Rule 8.5(b)(2)(i), which applies the ethics rules of the jurisdiction where the attorney is licensed to practice law if the attorney is licensed in only one jurisdiction. SeePhilin Corp. v. Westhood, Inc., No. CV-04-1228-HU, 2005 WL 582695, at *10 (D. Or. Mar. 11, 2005) (finding under Oregon choice of ethics law rule that because the attorney concerned was "apparently admitted only in Oregon," Oregon law applied to a motion to disqualify); Daynard v. Ness, 178 F. Supp. 2d 9, 19 (D. Mass. 2001) ("All five jurisdictions follow Model Rule 8.5 with respect to the treatment of lawyers licensed by only one state. For such lawyers, the choice-of-law analysis is simply that the lawyer is always subject to the ethical obligations of the state that licensed him, regardless of where the conduct occurs."); O'Brien v. Stolt-Nielsen Transp. Group, No. X08CV020 190051, 2004 WL 304318, at *5 (Conn. Super. Ct. 2004) (applying New York's choice of ethics law rule and holding that New York ethics rules applied to whether an attorney was precluded ethically from prosecuting constructive discharge case because it would require the attorney to divulge client secrets when the attorney was only licensed to practice law in New York during the time concerned). A couple of cases also have used choice of ethics law rules with almost identical language to the 1993 version of Model Rule 8.5(b)(1), which applies the ethical "rules of the jurisdiction in which the court sits" to attorney conduct in court proceedings. See In re Gonzalez, 773 A.2d 1026, 1029 (D.C. Cir. 2001) (holding that Virginia ethics law applied to the conduct of an attorney "in connection with a proceeding in a Virginia court" in determining whether the attorney should be disciplined for revealing client secrets); Philin Corp., 2005 WL 582695, at *9-10 (applying ethics rules of the jurisdiction where the court sits to the conduct of an attorney in a lawsuit in U.S. District Court for the District of Oregon when considering a motion to disqualify the attorney as counsel for the plaintiff).
118 See infra notes 119-71 and accompanying text.
119 105 P.3d 848, 849, 851 (Or. 2005).
120 Id. at 850-51.
121 Id. at 850. The opinion does not expressly state whether or not the client was an Oregon resident, but it appears that the client was a resident of Oregon because Oregon was where the claims adjuster collected information from the client. Id.
123 Id. at 850 & n.4.
124 Id. at 850.
125 Id. at 851.
126 Id. at 850. The attorney's firm, however, maintained an office in Oregon where the attorney occasionally worked. Id. at 850 n.3, 851.
127 Id. at 851.
128 Id. After receiving the demand letter, the claims adjuster forwarded it to the company's principal office in Idaho. Id. at 850 n.4.
129 Id. at 851.
130 Id. at 85 1-52. Whether the court applied Oregon or Idaho law most likely would not have affected the outcome of the action because defrauding a potential litigant would subject the attorney to discipline under the ethics laws of either jurisdiction. See Model Rules of Prof'l Conduct R. 4. 1 (2002) ("In the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person . . . ."). The court noted that Idaho had also commenced disciplinary action against the attorney. In re Complaint as to Conduct of Summer, 105 P.3d 848, 85 1 (Or. 2005).
131 665 N.W.2d 836, 838 (Wis. 2003).
136 Id. at 839.
137 Id. at 838-39. The court noted that the attorney had "contacted the district attorney's office and the sheriffs department, met with his clients, and began to prepare pleadings." Id.
139 Id. at 840.
140 Id. The attorney initially indicated that the amount due to him pursuant to the language in the retainer agreement was a little over $1,800. Id. at 839.
141 Id. at 840. The former attorney also alleged tortious interference with a contract. Id.
142 Id. at 842. The grievance also included claims brought only under the Michigan Rules of Professional Conduct concerning the attorney having filed a complaint asserting breach of contract after the client had terminated the representation and an amended complaint alleging that his bill had not been paid when the amount of the bill had already been tendered. Id. The referee who initially heard the action dismissed all grounds based wholly on Michigan ethics rales, leaving only the first ground based on both Wisconsin and Michigan ethics rules. Id.
145 Id. The Wisconsin Supreme Court, however, did hold explicitly that the referee erred in dismissing the second and third grounds alleging violations of the Michigan Rules of Professional Conduct due to the attorney filing the lawsuit in Michigan. Id. at 846. Applying Wisconsin's choice of law rule, which is almost identical to the 1993 version of Model Rule 8.5(b), the court held that under subsection (b)( 1 ) ofthat rule, Michigan's ethics rules applied to the attorney's conduct in filing and proceeding with the Michigan action because it was '"conduct in connection with a proceeding in a court before which a lawyer has been authorized to appear.'" Id. (quoting Wis. Sup. Ct. R. 20:8.5(b)(1)).
The court also found that under Wisconsin's version of Model Rule 8.5(a), Wisconsin had disciplinary jurisdiction such that the Wisconsin's Office of Lawyer Regulation could proceed with a complaint against an attorney licensed to practice in Wisconsin alleging violations of Michigan ethics rules in a proceeding in a Michigan state court. Id.
146 See infra notes 164-65 and accompanying text (discussing the importance of client residence in Marks; and Summers cases).
147 New York Code of Professional Responsibility Disciplinary Rule 1-105(b)(2) states that with regard to which jurisdiction's ethics rules should be applied to attorney conduct not in connection with a proceeding in a court:
i. If the lawyer is licensed to practice only in this state, the rules to be applied shall be the rules of this state, and
ii. If the lawyer is licensed to practice in this state and another jurisdiction, the rules to be applied shall be the rules of the admitting jurisdiction in which the lawyer principally practices; provided, however, that if particular conduct clearly has its predominant effect in another jurisdiction in which the lawyer is licensed to practice, the rules of that jurisdiction shall be applied to that conduct.
N.Y. CODE OF PROF'L RESPONSIBILITY DR1-105(b)(2) (2003).
148 N.Y. City Bar Ass'n Comm. on Prof 1 and Judicial Ethics, Formal Op. 1999-07 (1999).
151 Id. at n.1.
155 See N.Y. CODE OF PROF'L RESPONSIBILITY DR 1-105(b)(2)(i) (2003) (stating that "[i]f the lawyer is licensed to practice only in this state, the rules to be applied shall be the rules of this state").
156 N.Y. City Bar Ass'n Comm. on Prof 1 and Judicial Ethics, Formal Op. 1999-07, n.1 (1999).
157 N.Y. CODE OF PROF'L RESPONSIBILITY DR 1-105(b)(2)(ii) (2003).
158 N.Y. State Bar Ass'n Comm. on Prof'l Ethics, Op. 750 (2001).
159 The committee also noted that New York's Disciplinary Rule 1-105 is based on Model Rule 8.5. Id. at n.1.
163 Two other recent New York ethics opinions note the possible existence of a choice of ethics law issue with regard to a particular attorney's conduct without specifically resolving the issue. See N.Y. State Bar Ass'n Comm. on Prof'l Ethics, Op. 768 (2003) (noting that "in the context of a federal government agency in which a lawyer maybe rendering services beyond or outside the boundaries of this State, then the choice-of-law provisions of DR 1-105 may apply" but assuming "[f]or the purposes of this opinion" that "the New York Code of Professional Responsibility governs the conduct in question"); N.Y. State Bar Ass'n Comm. on Prof'l Ethics, Op. 742 (2001) (noting with regard to an attorney licensed to practice in New York but employed overseas that "[w]hether the rules of professional conduct that would be applied are those of New York or some other jurisdiction depends on whether the lawyer is also admitted in another jurisdiction and, if so, the place where the lawyer 'principally practices' or where the lawyer's conduct has its 'predominant effect'" and then applying New York ethics law to the attorney's conduct without analysis).
164 In re Complaint as to Conduct of Summers, 105 P.3d 848, 851-52 (Or. 2005); In re Disciplinary Proceeding Against Marks, 665 N.W.2d 836, 836, 842 (Wis. 2003).
165 In re Summers, 105 P.3d at 850; In re Marks, 665 N.W.2d at 838.
166 N.Y. State Bar Ass'n Comm. on Prof'l Ethics, Op. 750 (2001) (stating that even if an immigration law attorney had principally practiced in New York, the "particular conduct in the inquiry ha[d] its predominant effect in Illinois"); see supra notes 159-62 and accompanying text (analyzing this part of the ethics opinion).
167 Obviously, this factor would be less helpful, if not completely irrelevant, if a transactional representation was involved.
168 See supra notes 151, 153-54 and accompanying text (discussing the implications of the conclusion by the New York City Bar's ethics committee that New York ethics law applied to a New York City law firm's representation of a New Jersey couple in an immigration matter).
169 In re Summers, 105 P.3d at 851.
170 MODEL RULES OF PROF'L CONDUCT R. 8.5(b)(2) (2002).
171 See infra Part VI.C
172 Michael W. Loudenslager, Allowing Another Policeman on the Information Superhighway: State Interests and Federalism on the Internet in the Face of the Dormant Commerce Clause, 17 BYU J. PUB. L. 191, 193 (2003).
173 U.S. CONST. art. I, § 8, cl. 3 ('The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with Indian Tribes; . . . .").
174 Loudenslager, supra note 172, at 193, 208. The Commerce Clause arose from the recognized need for the national government to have the ability to promote trade between the states after the nation's experience with the Articles of Confederation when states erected internal trade barriers through taxes and duties. See Granholm v. Heald, 544 U.S. 460, 472 (2005) (stating that the dormant commerce clause '"reflect[s] a central concern of the Framers that was an immediate reason for calling the Constitutional Convention: the conviction that in order to succeed, the new Union would have to avoid the tendencies toward economic Balkanization that had plagued relations among the Colonies and later among the States under the Articles of Confederation'" (alteration in original) (quoting Hughes v. Oklahoma, 441 U.S. 322, 325-26 (1979))); Quill Corp. v. North Dakota, 504 U.S. 298, 312 (1992) ("Under the Articles of Confederation, state taxes and duties hindered and suppressed interstate commerce; the Framers intended the Commerce Clause as a cure for these structural ills."); Loudenslager, supra note 172, at 208 ("The Commerce Clause was written in order to avoid the 'Balkanization' of the United States economy that resulted after the institution of Articles of Confederation.").
175 See U.S. CONST. amend. X ('The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.").
176 Loudenslager, granóte 172, at 209; seealso Maine v. Taylor, 477 U.S. 131, 151 (1986) ("As long as a State does not needlessly obstruct interstate trade or attempt to 'place itself in a position of economic isolation,' . . . it retains broad regulatory authority to protect the health and safety of its citizens and the integrity of its natural resources." (quoting Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 51 1, 527 (1935))); HP Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 53 1-32 (1949) (recognizing the "broad power in the State to protect its inhabitants against perils to health or safety, fraudulent traders and highway hazards, even by use of measures whichbear adversely upon interstate commerce"); Michael A. Lawrence, Toward a More Coherent Dormant Commerce Clause: A Proposed Unitary Framework, 21 HARV. J.L. & PUB. POL' Y 395, 418 n. 102 (1998) ('The Court has long recognized the idea that States have an inherent 'police power' that allows them to regulate for the health, safety, and welfare of its citizens.").
177 Courts have recognized the intent to discriminate against interstate commerce as an improper purpose of state legislation under the dormant commerce clause. See Granholm, 544 U.S. at 472 ("States may not enact laws that burden out-of-state producers or shippers simply to give a competitive advantage to in-state businesses."); Brown-Forman Distillers Corp. v. N.Y. State Liquor Auth., 476 U.S. 573, 579 (1986) ("When a state statute directly regulates or discriminates against interstate commerce, or when its effect is to favor in-state economic interests over out-of-state interests, we have generally struck down the statute without further inquiry."); Baldwin, 294 U.S. at 527 ("Neither the power to tax nor the police power may be used by the state of destination with the aim and effect of establishing an economic barrier against competition with the products of another state or the labor of its residents."). If a court can infer that the state had such an intent in enacting legislation, this constitutes a "per se" violation of the dormant commerce clause. Lawrence, supra note 176, at 426; Loudenslager, supra note 172, at 214.
178 LEA BRILMAYER, CONFLICT OF LAWS 145 (2d ed. 1995) ("[T]he commerce clause has caused courts to balance the forum's concededly legitimate interest against the needs of the interstate commercial system" and "compares an existing local interest to the interests of other states."); Lawrence, supra note 176, at 410 ("[T]he resolution of a particular case today will turn in large part on a consideration of the local (state) interest in regulating local affairs as it relates to the national interest in promoting interstate commerce."). Brilmayer states that the Constitution's "prohibition on overreaching essentially compels a state not to treat [a] person, business, or dispute as local when the state would prefer to do just that." Brilmayer, supra, at 123. The Constitution prohibits such state overreaching because "a state may find it is in its interest to apply its law, or employ its judicial authority, in situations where it has no legitimate concern." Id.
179 Loudenslager, supra note 172, at 213-14 (explaining the Supreme Court's modern dormant commerce clause test). "[T]he intrusive conduct that [the dormant commerce clause] prohibits is conduct that is too costly in its impact on out-of-state activity considering the limited domestic benefits it seeks to achieve . . . ." BRILMAYER, supra note 178, at 137.
180 397 y s 137, 142 (1970). "The commerce clause is violated when the state has a legitimate reason for regulating, but in doing so it imposes severe burdens on conduct in other states." BRILMAYER, supra note 178, at 136.
181 Loudenslager, supra note 172, at 215 (quoting Edgar v. MITE Corp., 457 U.S. 624, 642-43 (1982) (plurality opinion)). For a more extensive discussion of Supreme Court cases using this test, see generally Loudenslager, supra note 172, at 215-19.
182 CTS Corp. v. Dynamics Corp. of Am., 481 U.S. 69, 88 (1987).
183 Loudenslager, supra note 172, at 219-20; see, e.g., Raymond Motor Transp. Inc. v. Rice, 434 U.S. 429, 441 (1978) ("Our recent decisions make clear that the inquiry necessarily involves a sensitive consideration of the weight and nature of the state regulatory concern in light of the extent of the burden imposed on the course of interstate commerce."); S. Pac. Co. v. Arizona, 325 U.S. 761, 770 (1945) ("[T]he matters for ultimate determination here are the nature and extent of the burden which the state regulation of interstate trains, adopted as a safety measure, imposes on interstate commerce and . . . the relative weights of the state and national interests involved."). For an extensive discussion of the Supreme Court's "transportation cases," see Loudenslager, supra note 172, at 219-26.
184 See BRILMAYER, supra note 178, at 136-37, 144-48, 158-59 (discussing the limitations that the Commerce Clause puts on the application of state substantive law to interstate activity); Harold W. Horowitz, The Commerce Clause as Limitation on State Choice-of-Law Doctrine, 84 HARV. L. REV. 806, 824 (1971) (discussing how the "[recognition of the commerce clause as a limitation on state choice-of-law doctrine" serves "the federal interest in promoting uniform and unburdensome patterns of regulation"); P. John Kozyris, Some Observations on State Regulation of Multistate Takeovers-Controlling Choice of Law Through the Commerce Clause, 14 DEL J. CORP. L. 499, 505 (1989) (discussing under dormant commerce clause principles "the extent to which states other than the state of incorporation may apply their laws to the transfer of control of multistate corporations which have some local contacts" and "the scope of state authority to regulate multistate transactions in securities"); Louise Weinberg, Choosing Law: The Limitations Debates, 1 99 1 U. ILL. L. REV. 683, 690, 713-15 (discussing dormant commerce clause cases "bearing on extraterritorial applications of forum law when the forum may have only a 'fractional interest' in applying its law");.
185 See Brilmayer, 5w/?ra note 178, at 147 (stating that the dormant commerce clause analysis identifies the forum's interests and "explicitly considers the interest of the other states as well and forms a comparative judgment" in determining "how much of the statute's effect is legitimate and how much of it cannot be justified by a legitimate forum interest").
186 See Restatement (Second) of Conflicts of Law § 6 cmt. d ( 1 969) ("Probably the most important function of choice-of-law rules is to make the interstate and international systems work well. Choice-of-law rules, among other things, should seek to further harmonious relations between states and to facilitate commercial intercourse between them.").
Professor Brilmayer states that "[p]erhaps the most obvious benefits" of states joining with other states in a federal government "are the increased commercial prospects integration offers." Brilmayer, supranote 178, at 131. "One purpose of federalism was to establish a 'common market' nationwide, in which the products produced in one state would not be discriminated against in others." Id. "When one thinks of protection from discrimination against the business interests of other states, the constitutional provision that immediately comes to mind is the commerce clause." Id. at 132; see also supra note 174 and the authorities cited therein (discussing the purpose of the Commerce Clause to promote trade between states and prevent states from erecting internal trade barriers).
187 See Brilmayer, supra note 178, at 164 (stating that one of the manners in which constitutional determinations are different from traditional state choice of law determinations is that constitutional determinations "impose a minimal threshold rather than singling out one state's law as the best"); Horowitz, supranote 184, at 824 (describing "the commerce clause as a limitation on state choice-of-law doctrine"). The federal constitutional standard "is a minimal, rather than an ideal, test." Brilmayer, supra note 178, at 165.
188 Brilmayer, supra note 178, at 165 ("[C]urrent constitutional doctrine asks only whether a state might reasonably find that it has an interest or that application of its law is fair. A state need not have a greater interest than other states - It need only make a decision that falls within reasonable limits."). Thus, it is possible in any given circumstance that more than one state might reasonably have an interest in regulating an activity.
189 See, e.g., PSINet, Inc. v. Chapman, 362 F.3d 227, 230 (4th Cir. 2004) (invalidating, under the dormant commerce clause, a Virginia statute making it unlawful to "knowingly display for commercial purposes in a manner whereby juveniles may examine or peruse" images or an "electronic file or message containing an image" or an "electronic file or message containing words, or sound recording" depicting or describing "sexually explicit nudity, [or] sexual conduct" that "is harmful to juveniles"); Am. Booksellers Found, v. Dean, 342 F.3d 96, 99 (2d Cir. 2003) (holding unconstitutional under the dormant commerce clause a Vermont statute prohibiting the use of the Internet to distribute to minors sexually explicit materials "harmful to minors"); Am. Civil Liberties Union v. Johnson, 194 F.3d 1 149, 1 152 (10th Cir. 1999) (holding that a statute prohibiting dissemination of materials harmful to minors by computer was unconstitutional under the dormant commerce clause); Am. Libraries Ass'n v. Pataki, 969 F. Supp. 160, 163 (S.D.N. Y. 1997) (invalidating under the dormant commerce clause a New York statute making it a felony to "intentionally use any computer communication system" to communicate to a minor material of a sexual nature "which is harmful to minors" (alteration in original)). One commentator has termed these laws "dissemination statutes." Chin Pann, The Dormant Commerce Clause and State Regulation of the Internet: Are Laws Protecting Minors from Sexual Predators Constitutionally Different Than Those Protecting Minors from Sexually Explicit Materials ?, 2005 DUKE L. & TECH. REV. 8, ¶ 1 , http://www.law.duke.edu/ joumals/dltr/articles/PDF/2005DLTR0008.pdf.
In defining "harmful to minors," these statutes often rely on the U.S. Supreme Court's First Amendment obscenity test and require that the material: (1) predominantly appeals to the prurient interest of minors; (2) be patently offensive to the prevailing standards of the adult community; and (3) lack serious artistic, political and scientific value. See, e.g., PSINet, Inc., 362 F.3d at 231 (describing the Virginia statute's definition of "harmful to juveniles"); Am. Booksellers Found. , 342 F.3d at 1 00 n. 1 (setting out the Vermont statutes "[h]armful to minors" definition); Am. Libraries Ass'n, 969 F. Supp. at 163 (describing New York statute's definition of "harmful to minors").
190 See PSINet, Inc., 362 F.3d at 235 (explaining that "speakers who publish on the Web generally make their materials publicly available to users around the world, regardless of age, and lack any practical or reliable means for preventing minors from gaining access to the information on their sites or for verifying the true age of users of their Web sites" (citation omitted)); Am. Booksellers Found., 342 F.3d at 100 (stating that the terms of the Vermont statute at issue "can be easily read to apply to material placed on a [W]ebsite or shared with an email or [!Internet discussion group"); Am. Libraries Ass'n, 969 F. Supp. at 168-69 (stating that under the New York statute at issue a Web site operator might be subject to "regulation by states that the actor never intended to reach and possibly was unaware were being accessed" and the statute was not limited to "person-to-person" communications); see abo Loudenslager, supra note 172, at 254 (explaining that by interpreting broadly the New York statute at issue in Am. Libraries Ass 'n, the statute "could reach a person or entity that simply intended to post or communicate the material considered 'harmful to minors' and did not intend for such material to reach a minor").
191 See infra notes 1 99-207 and accompanying text (explaining main grounds courts have used to invalidate statutes criminalizing posting of material harmful to minors on the Internet).
192 See, e.g., Hatch v. Super. Ct. of San Diego County, 94 CaI. Rptr. 2d 453, 464 (Ct. App. 2000) (examining a California statute making it a felony for a person to use the Internet to distribute "any harmful matter ... to a minor" knowing that a minor is receiving the matter "with the intent of arousing, [or] appealing to . . . passions or sexual desires of that person or of a minor" and with the purpose or intent of seducing a minor); Cashatt v. State, 873 So. 2d 430, 433-34 (FIa. Dist. Ct. App. 2004) (analyzing Florida statute making it a felony for a person to "knowingly" use the Internet "to seduce, solicit, lure, or entice," or to attempt any of these with, "a child or another person believed by the person to be a child, to commit any illegal act . . . relating to sexual battery . . . lewdness and indecent exposure" or "child abuse"); People v. Foley, 731 N.E.2d 123, 127 (N. Y. 2000) (scrutinizing a New York statute prohibiting "disseminating indecent material to minors" in order to "importune!], invite or induce a minor to engage in" sexual activity); State v. Snyder, 801 N.E.2d 876, 880-81 (Ohio Ct. App. 2003) (examining an Ohio statute prohibiting the use of the Internet to "solicit" another person and "to engage in sexual activity" when the solicitor is an adult and "believes that the other person is thirteen years of age or older but less than sixteen years of age").
193 See, e.g., Hatch, 94 CaI. Rptr. 2d at 460-61 (setting out the Internet communications between the defendant and a woman posing as two different thirteen year-old girls); Cashatt, 873 So. 2d at 433 (providing details concerning defendant's Internet communications with a police officer posing as a fourteen-year-old boy "by means of a 'bulletin board' posting and ensuing e-mail messages"); State v. Backhand, 672 N. W.2d 43 1 , 433 (N.D. 2003) (describing Internet chat room communications between defendant and a police officer posing as a fourteenyear-old girl); State v. Bolden, No. 19943, 2004 WL 1043317, at *1 (Ohio Ct. App. May 7, 2004) (summarizing communications between defendant and a police officer posing as a fifteen-year-old girl in an Internet chat room).
One commentator has described the crimes that these statutes proscribe as '"Internet luring' or 'enticement. ' " Julie Sorenson Stanger, Comment, Salvaging States ' Rights to Protect Children from Internet Prédation: State Power to Regulate Internet Activity Under the Dormant Commerce Clause, 2005 BYU L.REV. 191, 192; see also Pann, supra note 18941 (describing such laws as "luring statutes"). "Such a crime is patterned after the traditional crimes of solicitation and attempt but specifically addresses the sexual solicitation of a minor over the Internet." Stanger, supra, at 192.
194 See, e.g. , Hatch, 94 CaI. Rptr. 2d at 462 (defendant met with woman posing as thirteenyear-old at a hotel pool); Cashatt, 873 So. 2d at 433 (defendant arranged to meet with supposed boy and "showed up at the meeting place at the time agreed upon"); Backlund, 672 N.W.2d at 433 (defendant arranged to meet with police officer posing as a fourteen-year-old girl at a convenience store where the defendant ultimately was arrested); Snyder, 801 N.E.2d at 880 (defendant and police officer posing as a fourteen-year-old girl arranged to meet at a restaurant where defendant was arrested).
195 See infra notes 211-21 and accompanying text (explaining the analysis of courts holding that statutes preventing the use of the Internet to seduce or lure minors into engaging in sexual activity do not violate the dormant commerce clause).
Some commentators have noted that the opinions invalidating statutes criminalizing the posting of material harmful to minors on the Internet have largely come from federal courts, while the cases holding the statutes constitutional that prohibit the use of the Internet to lure minors into sexual activity with an adult are from state courts. Pann, supra note 189, ? 2-3 (explaining that this has likely occurred because "a multitude of interested parties seeking to protect their speech" initiated the cases dealing with "dissemination statutes" in federal court as "preemptive requests for injunctions" while state authorities brought the criminal charges against the defendants who challenged the "luring statutes"); Stanger, supra note 1 93, at 203, 211 (noting that "[although federal courts have not yet reviewed the validity of state Internet luring statutes, they have struck down other statutes intended to protect minors from sexually explicit and harmful Internet material" while "state courts have consistently . . . upheld state police power to regulate Internet activity harmful to minors").
196 See Beyond Sys., Inc. v. Keynetics, Inc., 422 F. Supp. 2d 523, 526, 531-36 (D. Md. 2006) (holding that a Maryland statute "authoriz[ing] recipients of commercial e-mail ... to sue senders who know or should know that the recipient's e-mail address is in Maryland and who use the domain name or e-mail address of a third person without permission or who send a message which contains false or misleading information" was constitutional under the dormant commerce clause); Ferguson v. Friendfinders, Inc., 115 CaI. Rptr. 2d 258, 260, 263-69 (Ct. App. 2002) (holding that a California statute regulating "conduct by persons or entities doing business in California who transmit unsolicited advertising materials" through electronic mail and fax machines was valid under the dormant commerce clause); MaryCLE, LLC v. First Choice Internet, Inc., 890 A2d 81 8, 840-45 (Md. Ct. Spec. App. 2006) (holding that a Maryland statute regulating unsolicited commercial e-mail, otherwise known as "spam," was valid under the dormant commerce clause); State v. Heckel, 24 P3d 404, 407 (Wash. 2001) (upholding under the dormant commerce clause a Washington statute that prohibited "sending a commercial e-mail message from a computer located in Washington or to an e-mail address held by a Washington resident" that misrepresented or disguised "the message's point of origin or transmission path, or use[d] a misleading subject line"); see also Commonwealth v. Jaynes, 65 Va. Cir. 355, 365-7 1 (Cir. Ct. 2004) (holding Virginia anti-spam statute was valid under the dormant commerce clause), aff'd, No. 1054-05-4, 2006 Va. App. LEXIS 41 1 (Ct. App. 2006).
Two additional cases do not fit into any of the three categories mentioned in the text but have dealt with statutes that largely regulate non-Internet activity and only incidentally regulate Internet conduct. See Ford Motor Co. v. Texas Dep't of Transp., 264 F.3d 493, 505 (5th Cir. 2001) (holding that the application of the Texas motor vehicle code to a car manufacturer's use of a Web site to sell cars in that state did not violate the dormant commerce clause); SPGGC, Inc. v. Blumenthal, 408 F. Supp. 2d 87, 102 (D. Conn. 2006) (holding that applying the Connecticut Gift Card Law to Internet sales of gift cards to Connecticut residents did not violate the dormant commerce clause).
197 See, e.g.,BeyondSys., Inc.,422 F. Supp. 2d at 526-27; Mary C LE, LLC, 890 A.2d at 827; Jaynes, 65 Va. Cir. at 356; Heckel, 24 P.3d at 407; see also Ferguson, 115 CaI. Rptr. 2d at 260 (describing California statute requiring senders of unsolicited e-mail to "include as the first text in the e-mailed document a statement informing the recipient of the toll-free number or [the valid sender operated] return [e-mail] address that may be used to notify the sender not to e-mail any further unsolicited material").
198 See infra notes 220-27 and accompanying text (setting out the analysis of courts holding that anti-spam statutes are valid under the dormant commerce clause).
199 PSINet, Inc. v. Chapman, 362 F.3d 227, 240 (4th Cir. 2004) ("Given the broad reach of the Internet, it is difficult to see how a blanket regulation of Internet material, such as [the Virginia statute at issue], can be construed to have only a local effect."); Am. Booksellers Found, v. Dean, 342 F.3d 96, 104 (2d Cir. 2003) ("In practical effect, Vermont [through the statute at issue] 'has "projected its legislation" into other States, and directly regulated commerce therein,' in violation of the dormant Commerce Clause." (quoting Brown-Forman Distillers Corp. v. N. Y. State Liquor Auth., 476 U.S. 573, 584 (1986))); Am. Civil Liberties Union v. Johnson, 194 F.3d 1 149, 1 161 (10th Cir. 1 999) (finding that the New Mexico statute at issue "represents an attempt to regulate interstate conduct occurring outside New Mexico's borders, and is accordingly a per se violation of the Commerce Clause"); Am. Libraries Ass' ? v. Pataki, 969 F. Supp. 160, 177 (S.D.N. Y. 1997) ("New York has deliberately imposed its legislation on the Internet and, by doing so, projected its law into other states whose citizens use the Net.").
200 See Am. Libraries Ass 'n, 969 F. Supp. at 177 ('The nature of the Internet makes it impossible to restrict the effects of the New York Act to conduct occurring within New York - [C]onduct that may be legal in the state in which the user acts can subject the user to prosecution in New York and thus subordinate the user's home state's policy ... to New York's local concerns.").
The Second Circuit described the effect of such legislation in the following manner:
A person outside Vermont who posts information on a [W]ebsite or on an electronic discussion group cannot prevent people in Vermont from accessing the material. If someone in Connecticut posts material for the intended benefit of other people in Connecticut, that person must assume that someone from Vermont may also view the material. This means that those outside Vermont must comply with [the Vermont statute] or risk prosecution by Vermont. Vermont has "project[ed]" [its statute] onto the rest of the nation.
Am. BooL·ellers Found., 342 F.3d at 103 (second alteration in the original).
201 PSINet, Inc. , 362 F.3d at 240 (holding that the Virginia statute at issue "fails under the Dormant Commerce Clause analysis oí Pike v. Bruce Church"); Am. Civil Liberties Union, 194 F.3d at 1 161 ("[U]nder the balancing test oí Pike v. Bruce Church, Inc., the burdens on interstate commerce imposed by [the New Mexico statute at issue] exceed any local benefits conferred by the statute."); Am. Libraries Ass 'n, 969 F. Supp. at 1 8 1 ('The severe burden on interstate commerce resulting from the New York statute is not justifiable in light of the attenuated local benefits arising from it.").
202 PSINet, Inc., 362 F.3d at 240 ('There is no question that Virginia has a compelling interest in protecting the physical and psychological well-being of minors."); Am. Civil Liberties Union, 194 F 3d at 1 161 ("We agree that the protection of minors from [harmful] materials is an undeniably compelling governmental interest - "); Am. Libraries Ass 'n, 969 F. Supp. at 177 ("[T]he protection of children against pedophilia is a quintessentially legitimate state objective ....").
203 PSINet, Inc., 362 F.3d at 240 (noting that if the Virginia statue only reached intrastate communication, "it will have no local benefit given the vast number of other communication options available to a juvenile seeking them"); Am. Civil Liberties Union, 194 F.3d at 1 162 (noting the "practical difficulties" of New Mexico prosecuting parties for violating the statute concerned "but whose only contact with [New Mexico] occurs via the Internet" (alteration in original) (quoting Am. Libraries Ass 'n, 969 F. Supp. at 178)); Cyberspace, Commc'ns, Inc. v. Engler, 55 F. Supp. 2d 737, 751 (E.D. Mich. 1999), affd, 238 F3d 420 (6th Cir. 2000) ("[T]he [Michigan] Act will be wholly ineffective in achieving the asserted goal because nearly half of all Internet communications originate overseas."); Am. Libraries Ass 'n, 969 F. Supp. at 178 ('The local benefits likely to result from the New York Act are not overwhelming. The Act can have no effect on communications originating outside of the United States - Further, in the present case, New York' s prosecution of parties from out of state who have allegedly violated the Act, but whose only contact with New York occurs via the Internet, is beset with practical difficulties, even if New York is able to exercise criminal jurisdiction over such parties.").
204 Am. Booksellers Found., 342 F.3d at 1 04 ("We think it likely that the [I]nternet will soon be seen as falling within the class of subjects that are protected from State regulation because they 'imperatively demand a single uniform rule.'" (alteration in original) (quoting Cooley v. Bd. of Wardens, 53 U.S. (12 How.) 299, 319 (1851))); Am. Civil Liberties Union, 194 F.3d at 1162 ("[C]ertain types of commerce have been recognized as requiring national regulation - The Internet is surely such a medium."); Am. Libraries Ass 'n, 969 F. Supp. at 1 8 1 ('The courts have long recognized that certain types of commerce demand consistent treatment and are therefore susceptible to regulation only on a national level. The Internet represents one of those areas; effective regulation will require national, and more likely global cooperation.").
Some courts have described this effectively as a pre-emption argument. Hatch v. Superior Court, 94 CaI. Rptr. 2d 453, 471 (Ct. App. 2000) ("Pataki's [argument] ... is a sort of preemption argument: that simply logging on the Internet automatically places one beyond the reach of state criminal prosecution."); People v. Hsu, 99 CaI. Rptr. 2d 184, 191 (Ct. App. 2000) (describing this analysis as "essentially a preemption analysis").
205 Am. Libraries Ass 'n, 969 F. Supp. at 1 82 (stating that the Internet "requires a cohesive national scheme of regulation so that users are reasonably able to determine their obligations"); see also Am. Boohellers Found., 342 F.3d at 103 ("Because the [I]nternet does not recognize geographic boundaries, it is difficult, if not impossible, for a state to regulate [I]nternet activities without 'project[ing] its legislation into other States.'" (alteration in original) (quoting Healy v. Beer Inst., 491 U.S. 324, 334 (1989))).
206 Am. Libraries Ass'n, 969 F. Supp. at 181; see also Cyberspace, Comme' ns, Inc., 55 F. Supp. 2d at752 ('The [Michigan] Act, and other state statutes like it, would subject the Internet to inconsistent regulations across the nation. Information is a commodity and must flow freely.").
207 Am. Libraries Ass 'n, 969 F. Supp. at 1 83; see abo Am. Booksellers Found., 342 F.3d at 103 ("Although Vermont aims to protect only Vermont minors, the rest of the nation is forced to comply with its regulation or risk prosecution."); Cyberspace, Comme 'ns, Inc., 55 F. Supp. 2d at 75 1 ("A New York speaker must comply with the Act in order to avoid the risk of prosecution in Michigan even though (s)he does not intend his [or her] message to be read in Michigan."). This third ground for invalidating statutes - criminalizing the mere posting of material on the Internet - appears to "double dip" because it uses the supposed extraterritorial reach of state regulation to argue for national regulation of the Internet. Therefore, this actually is not a separate ground, as stated by these courts, but it is just a continuation of the argument for the first ground.
208 See supra note 183 and accompanying text (discussing the ultimate test applied by the Supreme Court in the "transportation cases"); see also Loudenslager, supra note 172, at 250 (refuting the argument asserting the necessity of consistent Internet regulation as a grounds for invalidating state Internet regulations under the dormant commerce clause).
209 See Loudenslager, supra note 172, at 250 ("[T]he Court has tended to invalidate a state's regulation of railways and highways when the regulation is widely out of step with most other states' regulation of the subject matter, thus greatly raising the cost of compliance with the regulation . . . .").
210 See infra notes 236-38 and accompanying text (explaining how the interactivity of a Web site affects the potential burden of complying with different state regulations).
211 See infra notes 212-21 and accompanying text (explaining the reasoning of courts faced with "luring" Internet statutes for holding that such statutes do not violate the dormant commerce clause).
212 See infra notes 213-17 and accompanying text (explaining courts' reasoning that defendants have acted within the jurisdiction through Internet communications with residents).
213 See People v. Hayne,No. F036401, 2002 WL470853, at *9 (CaI. Ct. App. Mar. 27, 2002) (finding that California's "seducing" statute at issue "in the context of the [California] Penal Code as a whole, only penalizes acts that occur within the state"); Hatch v. Superior Court, 94 CaI. Rptr. 2d 453, 472 (Ct. App. 2000) (stating that "[t]he assumption that extraterritorial enforcement of state criminal statutes is normative is incorrect" and that in order to be subject to California's criminal jurisdiction a person must have committed part of the crime within California); State v. Cunningham, 808 N.E.2d 488, 494 (Ohio Ct. App. 2004) ("Ohio has jurisdiction to prosecute crimes that are partially committed in the state and also where the object of the crime is located in Ohio.").
214 People v. Ruppenthal, 771 N.E.2d 1002, 1008 (Dl. Ct. App. 2002); see also State v. Backlund, 672 N. W.2d 43 1 , 436 (N.D. 2003) (quoting Ruppenthal and holding that "a person who, while outside of this state, solicits criminal action within this state and is thereafter found in this state" is subject to criminal jurisdiction); Commonwealth v. John, 854 A.2d 59 1, 595 (Pa. Super. Ct. 2004) (holding that a defendant who sent e-mail communications from Maryland and Delaware to a Pennsylvania police officer posing as a thirteen year-old girl made solicitations in Pennsylvania "where they were received").
Courts have treated telephone communications in a similar manner. See United States v. Pezzino, 535 F.2d 483, 484 (9th Cir. 1 976) (holding that federal statute prohibiting the transmission of bets or wagers on sporting events over interstate communication facilities included both the "use of interstate facilities for sending or receiving wagering information"); United States v. Synodinos, 218 F. Supp. 479, 481 (D. Utah 1963) (holding that Utah was a proper venue for a prosecution for transmission of bets or wagers on sporting events over interstate facilities because "the District of Utah [was] where the use of the interstate wire faculties had its ultimate impact, i.e., it was here that the messages . . . were actually received"); State v. Meyers, 825 P.2d 1 062, 1 064-65 (Haw. 1 992) (upholding conviction in Hawaii for terroristlike threats made by a defendant located in California through a telephone call to a probation officer in Hawaii).
215 See Cunningham, 808 N.E.2d at 495 (finding Ohio's criminal jurisdiction appropriate because, among other things, the defendant's intended "victim was located in Ohio" and "[t]he recipient of the Defendant's Internet communications was located in Ohio, and the Defendant was given notice of this during the communications"); John, 854 A.2d at 596 ("Certainly, a person who receives a criminal solicitation while sitting at her computer terminal in Pennsylvania is being solicited within this Commonwealth.").
216 See supra note 194 (providing examples of cases where the defendant attempted to meet the intended victim in person).
217 People v. Hsu, 99 CaI. Rptr. 2d 184, 191 (Ct. App. 2000) ("When [the California statute at issue] is harmonized with the entire California penal scheme, it does not effectively regulate activities beyond California."); Hatch, 94 CaI. Rptr. 2d at 473 ("[T]here is no reason to suppose California would attempt to impose its policies on other states in light of the relevant California penal statutes coveringjurisdiction over public offenses[,] which generally bar punishment for wholly extraterritorial offenses."); Cunningham, 808 N.E.2d at 495 (holding that the defendant's "over-extension and over-breadth arguments do not apply to this case").
218 E.g., Cashatt v. State, 873 So. 2d 430, 436 (FIa. Dist. Ct. App. 2004) ("[N]o legitimate commerce is burdened by penalizing the transmission of harmful sexual material to known minors in order to seduce them."); People v. Foley, 73 1 NE.2d 123, 133 (N. Y. 2000) ("We are hard pressed to ascertain any legitimate commerce that is derived from the intentional transmission of sexually graphic images to minors for the purpose of luring them into sexual activity. Indeed, the conduct sought to be sanctioned by [the New York statute at issue] is of the sort that deserves no 'economic' protection."), cert, denied, 531 U.S. 875 (2000); Backlund, 672 N.W.2d at 438 ("[I]t is difficult to ascertain any legitimate commerce that is derived from the willful transmission of explicit or implicit sexual communications to a person believed to be a minor in order to willfully lure that person into sexual activity.").
One commentator has gone a step further and asserted that "luring a minor over the Internet" does not involve commerce at all, "and, as such, should not be subject to the dormant Commerce Clause blocking power." Stanger, supra note 193, at 220. But see Pann, supra note 189, f 29 (stating that "the state courts have overstated their position when contending that no legitimate commerce is burdened, as states may have different policies on what conduct is prohibited").
219 People v. Hayne, No. F036401, 2002 WL 470853, at *8 (CaI. Ct. App. Mar. 27, 2002) ("[T]he intent to seduce requirement greatly narrows the scope of the law and its effect on interstate commerce."); Hatch, 94 CaI. Rptr. 2d at 472 ("While a ban on simple communication of certain materials may interfere with an adult' s legitimate rights, a ban on communication of specified matter to a minorer the purposes of seduction can only affect the rights of a very narrow class of adults who intend to engage in sex with minors."); Cashatt, 873 So. 2d at 436 ("[T]he statute does not burden Internet users with inconsistent state regulations because of the 'intent to seduce' element, which makes it much narrower than the statute invalidated in American Libraries Association - "); People v. Foley, 692 N.Y.S.2d 248, 256 (App. Div. 1999) (noting that "[t]he inclusion of the second ['luring'] prong [of the New York statute at issue] narrows its scope and lessens any burden on commerce"), aff'd, 731 N.E.2d 1213 (NY. 2000), cert. denied,531 U.S. 875 (2000); Stanger, supra note 193, at 227 ("[LJuring statutes are unlikely to have any type of 'chilling effect' on Internet commerce because they proscribe only a narrow range of Internet activity.").
220 Hsu, 99 CaI. Rptr. 2d at 191 ("Only when material is disseminated to a known minor with the intent to arouse the prurient interest of the sender and/or minor and with the intent to seduce the minor does the dissemination become a criminal act."); State v. Bolden, No. 19943, 2004 WL 1043317, at *7 (Ohio Ct. App.) (explaining that the Ohio statute at issue "does not regulate the mere transmission of pictures, images, or messages that are deemed harmful to children;" instead, the statute "regulates the conduct of adults who seek to solicit minors to engage in sexual activity in conversations by means of the Internet").
221 Hatch, 94 CaI. Rptr. 2d at 473 ("[N]o rational analysis supports the proposition that [the California statute at issue] imposes any burden on interstate commerce."); Cashatt, 873 So. 2d at 436 ('The effect of [the Florida statute at issue] on interstate commerce is incidental at best and is far outweighed by the state's interest in preventing harm to minors."); Foley, 73 1 NE.2d at 133 (holding that the New York "luring" statute at issue was "a valid exercise of the State' s general police powers") ;Bo lden, 2004 WL 10433 17,at*7 (holding that Ohio "soliciting" statute "[did] not unduly interfere with interstate commerce" (quoting State v. Snyder, 801 NE. 2d 876, 886 (Ohio Ct. App. 2003))).
One case used reasoning similar to the two arguments set out in the text above to find a California statute prohibiting the use of "an electronic communication device" to "willfully threaten  to commit a crime which will result in death or great bodily injury to another person" constitutional under the Commerce Clause. People v. Vijay, No. H024123, 2003 WL 23030492, at *6, 9-10 (CaI. Ct. App. Dec. 19, 2003) (alteration in original). The defendant had threatened the husband of an ex-girlfriend with bodily harm in an e-mail. Id. at *4-5. The court found that: "California prosecutes only those criminal acts that occur wholly or partially within the state. . . . Thus, [the criminal threat statute at issue] cannot be enforced beyond that which is jurisdictionally allowed." Id. at * 10. Furthermore, the court found that the intent requirement of the statute greatly narrowed the effect of the statute on Internet activity: 'To violate [the statute] the offender must willfully threaten to commit a crime that would result in death or great bodily injury, and he must make the threat with the specific intent that the statement be taken as a threat." Id. The court stated that it could not "envision any legitimate commerce involving the sending of messages that threaten death or great bodily injury to the recipient such that that person is put in sustained fear for his or her own safety." Id. at *10 n.7.
222 Ferguson v. Friendfinders, Inc., 1 15 CaI. Rptr. 2d 258, 264 (Ct. App. 2002); MaryCLE, LLC v. First Choice Internet, Inc., 890 A.2d 818, 842-44 (Md. Ct. Spec. App. 2006); Commonwealth v. Jaynes, 65 Va. Cir. 355, 368 (Cir. Ct. 2004), aff'd, No. 1 054-05-1 1 , 2006 Va. App. LEXIS 44 (Ct. App. 2006); State v. Heckel, 24 P.3d 404, 412 (Wash. 2001); see also Beyond Sys., Inc. v. Keynetics Inc., 422 F. Supp. 2d 523, 534-35 (D. Md. 2006) (finding that Maryland anti-spam statute did not operate extraterritorially by expressly adopting the analysis from Heckel and MaryCLE).
223 Ferguson, 115 Cal Rptr. 2d at 264 (finding that the California anti-spam statute "applies only when [unsolicited commercial e-mail] is sent to a California resident by means of an electronic-mail service provider who has equipment in the State"); MaryCLE, LLC, 890 A2d at 844 (finding that the Maryland anti-spam statute "has built-in safeguards to ensure that it does not regulate conduct occurring wholly outside of Maryland" because "[i]n order to violate the Act, an email advertiser must either use equipment located in the State of Maryland or send prohibited [unsolicited commercial e-mail] to someone he knows or should know is a Maryland resident"); Heckel, 24 P.3d at 412-13 (finding that the Washington anti-spam statute "addresses the conduct of spammers in targeting Washington consumers" and that the statute "reaches only those deceptive [unsolicited commercial e-mail] messages directed to a Washington resident or initiated from a computer located in Washington"); see also Jaynes, 65 Va. Cir. at 368 (finding that in order for Virginia's anti-spam statute to apply, "[i]t would have to be established that either the unsolicited bulk electronic mail was transmitted through or into a computer network of an electronic mail provider or one or [sic] its subscribers located in Loudoun County, Virginia").
224 Ferguson, 115 Cal. Rptr. 2d at 268 ('To the extent that section 17538.4 requires truthfulness in advertising, it does not burden interstate commerce at all 'but actually "facilitates it by eliminating fraud and deception.'"" (quoting Heckel, 24 P.3d at 41 1)); Jaynes, 65 Va. Cir. at 369 (stating that requiring "disingenuous information, intentionally created, be deleted from the routing process is not a weighty burden, if a burden at all, to be imposed on any person or business choosing to send bulk e-mails"); Heckel, 24 P.3d at 41 1 (finding that "the only burden the Act places on spammers is the requirement of truthfulness, a requirement that does not burden commerce at all but actually 'facilitates it by eliminating fraud and deception'" (quoting Jack L Goldsmith & Alan O. Sykes, The Internet and the Dormant Commerce Clause, 1 10 Yale LJ. 785, 819 (2001))); see also MaryCLE, LLC, 890 A.2d at 842 ("When the only burden [the Maryland anti-spam statute] imposes is that of sending truthful and non-deceptive email, '[t]hat [the Respondent] considers [the statute's] requirements inconvenient and even impractical does not mean that statute violates the [C]ommerce [C]lause.'" (quoting Ferguson, 115 CaI. Rptr. 2d at 265)).
225 See MaryCLE, LLC, 890 A.2d at 844 ("No state is likely to consider that the welfare of a business that engages in false or misleading advertising is a legitimate interest, worthy of state protection."); Jaynes, 65 Va. Cir. at 369 ("A survey of state laws regulating bulk electronic mail finds that none conflict with the Virginia statute."); Heckel, 24 P.3d at 412 ('The truthfulness requirements of the Act do not conflict with any of the requirements in the other states' statutes, and it is inconceivable that any state would ever pass a law requiring spammers to use misleading subject lines or transmission paths.").
226 Ferguson, 115 CaI. Rptr. 2d at 268 (finding that "California has a substantial legitimate interest in protecting its citizens from the harmful effects of deceptive [unsolicited commercial e-mail]," which include unsolicited commercial e-mail containing "offensive subject matter, [being] a favored method for pursuing questionable if not fraudulent business schemes, and [being] successfully used to spread harmful computer viruses"); MaryCLE, LLC, 890 A.2d at 835 ("Maryland certainly has an interest in protecting its consumers, not only from the costs associated with [unsolicited commercial e-mail] proliferation, but also from becoming victims of fraud and schemes initiated by false and misleading email.").
227 Ferguson, 115 CaI. Rptr. 2d at 267 (stating that "Internet Service Providers (ISPs) incur significant business-related costs" due to spam and that "[i]ndividuals who receive [unsolicited commercial e-mail] can experience increased Internet access fees"); MaryCLE, LLC, 890 A.2d at 836 ("[T]he financial costs of spam and [unsolicited commercial e-mail] are great. To this effect, a recent University of Maryland study concluded that deleting unwanted email costs nearly $22 billion annually in lost productivity."); Jaynes, 65 Va. Cir. at 368 (acknowledging that the United States Congress has stated that "[t]he growth in unsolicited commercial electronic mail imposes significant monetary costs on providers of Internet access services, businesses, and educational and nonprofit institutions that carry and receive such mail" (alteration in original) (quoting 15 U.S.C. § 7701(6) (2004))); Heckel, 24 P.3d at 409-10 (describing the economic costs experienced by businesses, such as Internet service providers, and individuals that receive spam).
228 Ferguson, 115 CaI. Rptr. 2d at 268 ("[P]rotecting a state's citizens from the economic damage caused by deceptive [unsolicited commercial e-mail] constitutes a 'legitimate local purpose."' (quoting Heckel, 24 P.3d at 410)); Jaynes, 65 Va. Cir. at 368 ('The Commonwealth clearly has an interest in the protection of the property interests of its citizens [affected by spam]."); Heckel, 24 P.3d at 410 (finding that the Washington anti-spam statute "serves the 'legitimate local purpose' of banning the cost-shifting inherent in the sending of deceptive spam").
229 See, e.g., Ferguson, 1 15 CaI. Rptr. 2d at 267-69; MaryCLE, LLC, 890 A.2d at 842; Jaynes, 65 Va. Cir. at 368-69; Heckel, 24 P.3d at 409-1 1 ; see also Beyond Sys., Inc. v. Keynetics Inc., 422 F. Supp. 2d 523, 538 (D. Md. 2006) (holding that the Maryland anti-spam statute did not violate the dormant commerce clause by adopting the analysis from Heckel and MaryCLE).
230 Transience is another significant characteristic of Internet communications that potentially makes compliance with different state regulations problematic. Loudenslager, supra note 172, at 242. 'Transience refers to the almost infinite number of paths, through numerous states, that data can travel when two computers on the Internet communicate with one another." Id. Transience results from the distributed network and packet-switching technology used to transport computer data across the Internet. Id. at 203-04; see abo id. at 195-97 (providing a more in-depth explanation of the distributed network and packet-switching technology used in Internet communications).
However, two factors decrease the potential burden of transience. First, a state has very little incentive to regulate activity when transient data travels through computers located in that state en route to an end recipient in another state because such activity "does not cause any practical effect in the first state." Id. at 247. "A state only has an incentive to regulate Internet communications that either originate or are received physically within the geographic boundaries of that state because those are the situations when the activity can cause harmful effects in that state." Id. at 247-48.
Second, criminal jurisdiction limits the ability of a state to enforce its regulations on the Internet. Id. at 248. Criminal jurisdiction requires that a defendant commit at least part of an offense within the prosecuting state. Id. Moreover, in order to prosecute an individual, a state normally "would have to extradite a person located in another state." Id. "[EJxtradition from one state to another is limited to individuals who have fled the state that seeks extradition." Goldsmith & Sykes, supra note 224, at 815. 'Thus, it seems very unlikely that '[a] Web site operator who has never had a presence in the regulating state' would face prosecution there." Loudenslager, supra note 172, at 248 (quoting Goldsmith & Sykes, supranoie 224, at 815); see also id. at 247^-9 (providing a more in-depth explanation of how the lack of a state incentive to regulate Internet activity involving transient computer data and criminal jurisdiction decreases the potential extraterritorial effect of state Internet regulations).
231 I DOUGLAS E. COMER, INTERNETWORKING WRRA TCP/IP: PRINCIPLES, PROTOCOLS, AND ARCHITECTURES 465 (4th ed. 2000) (describing the "mechanism that implements a machine name hierarchy" for Internet computers to communicate with each other "is called the Domain Name System (DNS)").
232 CHRiSTOS J.P.MOSCHOVITS ET AL., HISTORY OF THE INTERNET: A CHRONOLOGY, 1843 TO THE Present 164 (1999) (stating that Universal Resource Locators are known as "URLs").
233 Loudenslager, supra note 172, at 204. "Some authorities refer to the URL as the Uniform Resource Locator as opposed to the Universal Resource Locator." Id. at 202 n.7 1 (first emphasis added); see also Shea v. Reno, 930 F. Supp. 916, 929 (S.D.N. Y. 1996), aff'd, 521 U.S. 1113 (1997); Comer, supra note 231, at 528; JoeHabraken, Absolute Beginner' s Guide t? Networking 236 (3d ed. 2001).
234 Loudenslager, supra note 1 72, at 204. For a more in-depth explanation of how computers transport computer data over the Internet and the World Wide Web, see id. at 198-203.
235 Id. at 205 ("By itself, the transporting of computer data across the Web from a server to a computer using Web-browser software does not provide the site operator with any information about the location of the person using the Web browser.").
236 Id.; see also Zippo Mfg. v. Zippo Dot Com, Inc., 952 F. Supp. 1119, 1124 (W.D. Pa. 1997) (describing a "passive Web site" as a site "that does little more than make information available to those who are interested in it").
237 Loudenslager, supra note 172, at 205-06. Additionally, when a Web site sells tangible goods, the operator will likely need to know the physical location of the site user in order to ship those goods to the user. Id. at 206. While this assumes that the shipping address corresponds to the physical location of the user, "the buyer [in most instances will have] every incentive to provide the host with accurate shipping information in order to receive the goods purchased." Id. This factor, however, is less relevant to the current analysis because this article involves the provision of a service, specifically the giving of legal advice, over the Internet and not a tangible good.
239 Id. at 25 1-52, 254-55 (reconciling the Hatch ana American Libraries Ass 'n cases according to the interactivity of the Internet conduct affected by the statutes at issue in each case).
240 Id. at 254 (analyzing the statute at issue in the American Libraries Ass 'n case).
241 Id. (analyzing the statute at issue in the American Libraries Ass'n case); see supra notes 189-90 and accompanying text.
242 See Loudenslager, supra note 172, at 254 (analyzing the statute at issue in the Hatch case).
243 See supra note 194 and accompanying text.
244 See supra note 193 and accompanying text.
245 Loudenslager, supra note 172, at 251.
246 See id. at 252; see also supra note 194 and accompanying text.
247 See supra notes 197-98 and accompanying text.
248 See, e.g., MaryCLE, LLC v. First Choice Internet, 890 A.2d 818, 844 (Md. Ct. Sp. App. 2006) (finding that "[i]n order to violate the [Maryland anti-spam statute], an email advertiser must either use equipment located in the State of Maryland or send prohibited [unsolicited commercial e-mail] to someone he knows or should know is a Maryland resident"); State v. Heckel, 24 P.3d 404, 412-13 (Wa. 2001) (finding that the Washington anti-spam statute "addresses the conduct of spammers in targeting Washington consumers" and that the statute "reaches only those deceptive [unsolicited commercial e-mail] messages directed to a Washington resident or initiated from a computer located in Washington").
249 MaryCLE, LLC, 890 A.2d at 844 ("[W]hereas a commercial emailer can choose between one recipient and another, 'no Web siteholder is able to close his site to' persons from other states." (quoting Am. Libraries Ass'n v. Pataki, 969 F. Supp. 160, 174 (S.D.N. Y. 1997))).
250 See supra notes 179-83 and accompanying text (explaining the basic dormant commerce clause test from Pike v. Bruce Church).
251 Model Rules of Prof'l Conduct R 8.5(b)(2) (2002).
252 Cf. On Petition for Review of Opinion 475 of Advisory Comm. Prof 1 Ethic & DR 2-102(c), 444 A.2d 1092, 1 100 (N.J. 1982) (holding that a New Jersey restriction on use in firm names of names of attorneys not licensed to practice in New Jersey did not discriminate against interstate commerce because the restriction applied to both residents and non-residents who were not licensed to practice in New Jersey, and applying the Pike v. Bruce Church balancing test to examine whether the regulation violated the dormant commerce clause), appeal dismissed, 459 U.S. 962 (1982).
253 Thus, a maximum of two occupants would be allowed in one-bedroom apartments, and three occupants would be allowed in two-bedroom apartments.
254 Several characteristics of this Web site are based on a hypothetical presented in a California ethics opinion. CaI. Bar Standing Comm. on Prof 1 Responsibility and Conduct, Formal Op. 2005-168 (2005).
255 See supra notes 229-35 and accompanying text.
256 See supra notes 236-49 and accompanying text.
257 See supra note 24 and accompanying text.
258 MODEL RULES OF PROF'L CONDUCT R. 8.5(B)(2) (2002).
259 See Goldfarb v. Va. StateBar,421 U.S. 773, 792 (1975) ("We recognize that the States have a compelling interest in the practice of professions within their boundaries, and that as part of their power to protect the public health, safety, and other valid interests they have broad power to establish standards for licensing practitioners and regulating the practice of professions.") ; MODEL RULES OF PROF'L CONDUCT R. 5.5 cmt. 2 (2002) ("[L]imiting the practice of law to members of the bar protects the public against rendition of legal services by unqualified persons."); RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 4, cmt. b (2000) ('The primary justification given for unauthorized practice limitations was that of consumer protection - to protect consumers of unauthorized practitioner services against the significant risk of harm believed to be threatened by the nonlawyer practitioner's incompetence or lack of ethical constraints."); Ritts, supra note 97, at 24 ("[W]hen foreign lawyers act in a state, outside of court, the state clearly has an interest in regulating their conduct, in order to protect such residents of the state as might come in contact with them."). But see RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 4, cmt. c (2000) (stating that "[s]everal jurisdictions recognize that many [out-of-court legal] services can be provided by nonlawyers without significant risk of incompetent service" and "that actual experience in several states with extensive nonlawyer provision of traditional legal services indicates no significant risk of harm to consumers of such services"); Rhode, supra note 10, at 89 ('Three years in law school and passage of a bar exam are neither necessary nor sufficient to ensure expertise in the areas where nonlawyer services flourish; lay specialists may be better able to provide cost-effective services than lawyers who practice in multiple fields."); Richard L. Abel, United States: The Contradictions of Professionalism, in 1 LAWYERS IN SOCIETY: THE COMMON LAW WORLD 186, 188 (Richard L Abel & Philip S.C. Lewis eds., 1988) (stating that with regard to legal ethics attorneys' "substantive rules and  disciplinary process have been unresponsive to consumer grievances, especially since neither does anything to ensure continuing technical competence among lawyers"); Roger C. Cramton, Delivery of Legal Services to Ordinary Americans, 44 CASE W. Res. L. Rev. 53 1, 57 1 (1994) ('The current law of unauthorized practice goes too far in seeking to protect consumers from competitive services provided by nonlawyers. Consumer groups and ratings can guide consumers in choosing services. Malpractice liability is likely to provide greater protection than professional controls applied to lawyers.").
260 SeeRa. Barv. Went For It, Inc., 515 U.S. 618, 620-21, 624-25 (1995) (recognizing that states have "a substantial interest in protecting the privacy and tranquility of personal injury victims and their loved ones against intrusive, unsolicited contact by lawyers" while examining Florida regulations that created "a brief 30-day blackout period after an accident during which lawyers may not, directly or indirectly, single out accident victims or their relatives in order to solicit their business"); Chambers v. Stengel, 37 S.W.3d 741, 743 (Ky. 2001) (holding that the "General Assembly [was] within its police power to respond . . . through legislation" to the "emotional harm to the accident and disaster victims" who received direct solicitations from attorneys soon after an incident); ModelRules ofProf'lConductR 7. 1 (2002) (prohibiting attorneys from making a "false or misleading communication about the lawyer or the lawyer's services"); id. R. 7.1 cmt. 3 (noting that "[a]n advertisement that truthfully reports a lawyer's achievements on behalf of clients or former clients maybe misleading if presented so as to lead a reasonable person to form an unjustified expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client's case"); id. R 7.3 cmt. 5 (recognizing that even written forms of solicitation, which are permitted under the Model Rules, "can be abused" and should not be "false or misleading" or involve "coercion, duress or harassment" as defined under Model Rules 7.1 and 7.3(b)(2)).
261 In re Coale, 775 N.E.2d 1079, 1080-81 (Ind. 2002) ("By their own admission, the respondents sent videotapes, personal letters and folders containing information about their law firm and a firm brochure to seven people who were widows, widowers or surviving parents of the crash victims or to the crash victims themselves."); In re Murgatroyd, 741 N.E.2d 719, 720 (Ind. 2001) (noting that the attorneys "caused to be delivered by United States mail written solicitations to prospective clients in connection with the crash"); see also Stems v. Lundberg, 922 F. Supp. 164, 166 (S.D. Ind. 1996) ("[The attorneys,] although not admitted to practice law in Indiana, directed mailings to survivors and the families of deceased crash victims in order to solicit potential clients.").
262 See In re Coale, 775 N.E.2d at 1 080-8 1 (holding that the Indiana Supreme Court could properly exercise disciplinary jurisdiction over one attorney licensed to practice in the District of Columbia and one attorney licensed to practice in California who directed written solicitations by United States mail to airplane crash victims); In re Murgatroyd, 741 N.E.2d at 720-21 (holding that the Indiana Supreme Court could properly exercise disciplinary jurisdiction over two attorneys licensed to practice in California who directed written solicitations by United States mail to airplane crash victims); see also Sterns, 922 F. Supp. at 168, 169 (holding that federal court would abstain from interfering in Indiana disciplinary proceeding when, among other things, the state court had already ruled on the propriety of asserting disciplinary jurisdiction and decided that subjecting "out-of-state lawyers who solicit Indiana citizens to [Indiana's] disciplinary rules [was] not foreclosed by existing caselaw [sic]").
263 In re Murgatroyd, 741 N.E.2d at 721; accord In re Coale, 775 N.E.2d at 1081 (quoting In re Murgatroyd, 741 N.E. 2d at 721).
264 In re Murgatroyd,! AX N.E.2dat721 (citation and footnote omitted); seealsoln reCoale, 775 N.E.2d at 1081 (quoting and applying analysis from Murgatroyd to other attorneys not licensed in Indiana who directed solicitations to survivors and families of victims of the Indiana airplane crash). A federal court also held that the Indiana Disciplinary Commission had a reasonable argument for subjecting the attorneys to Indiana's disciplinary jurisdiction in deciding to abstain from interfering in one of Indiana's disciplinary actions. Sterns, 922 F. Supp. at 169 ("[T]he Court is simply not convinced that the Commission has no chance of subjecting out-of-state lawyers to Indiana's disciplinary rules - [A]t worst, the Commission's attempt to subject out-of-state lawyers who solicit Indiana citizens to this state's disciplinary rales is not foreclosed by existing caselaw [sic] and might even constitute an important case of first impression."). Although never explicitly stated in any of the decisions, the attorneys apparently directed at least some of their solicitations to Indiana residents.
265 The court explicitly applied Indiana law to Coale and Allen. See In re Coale, 775 N.E.2d at 1 083-84. Because Murgatroyd and Sterns presented the court with a proposed agreed judgment with the state disciplinary commission, the court cited and discussed Indiana ethics law without directly applying it. See In re Murgatroyd, 741 N.E.2d at 72 1-22 nn.3-8, 722; see abo 111. State Bar Ass'n Comm. on Prof 1 Conduct, Advisory Op. 94-2 (1994) (applying Illinois's unauthorized practice of law statute to an attorney licensed "only in a state other than Illinois" who mailed "packets of material advertising his law firm's personal injury litigation services, with letters of solicitation, to persons who were injured in major disasters in Illinois").
266 Such a view effectively would fold the choice of law analysis into the disciplinary jurisdiction decision. This might have arisen from the fact that at the time of these decisions Indiana had only incorporated the original version of Model Rule 8.5, which did not contain a choice of law provision into its ethics mies. Ind. Rules of Prof' l Conduct R 8.5 hist. & statutory notes (West 2005) (setting out the language of the version of Rule 8.5 effective from Jan. 1, 1987, to Dec. 31, 2004). It is also possible that the Indiana court simply did not think about the appropriateness of applying its law in this situation.
267 See supra notes 75-78 and accompanying text (setting out the ethical issues, recognized by various jurisdictions, that electronic representations raise).
268 The rationale for such extraterritorial application ofthe licensing jurisdiction's ethics rales is that the licensing state has "an obligation to protect the 'purity' ofthe state's bar, and that 'purification' [requires] vigilance against questionable conduct of lawyers, no matter where it [occurs]." Ritts, supra note 97, at 27.
269 See id. at 27, 33-40 (discussing cases asserting that purification of a jurisdiction's bar justified the application of its ethics rules to extraterritorial conduct of lawyers licensed by that jurisdiction); see, e.g., People ex rei. Colo. Bar Ass'n v. Lindsey, 283 P. 539, 546 (Colo. 1929) ('The respondent's oath of office as an attorney and counselor at law is not only binding here in Colorado but everywhere . . . . It abides with him at all times and places, and he will be held responsible to this court for his misconduct as an attorney so long as his name continues on the roll; nor can he put himself in a position which will place him beyond the inherent power of this court to purify the bar of its unworthy members, and to keep its roster clean."); FIa. Bar v. Wilkes, 179 So.2d 193, 196, 197 (FIa. 1965) (recognizing that "to ignore acts of professional misconduct merely because they occurred outside this state would be to ignore our duty to protect the people of this state from one who has been held by another state to be . . . unfit" and giving collateral estoppel effect to the factual findings of the other state' s judgment but determining that "the discipline to be awarded for such acts by this state shall be determined by this court and its agencies in the same manner as in all other disciplinary proceedings"); In re Veach, 287 S.W.2d 753, 759 (Mo. 1956) ("If one has been guilty of conduct inconsistent with the standard expected of lawyers as officers of the court, it should make no difference whether the acts were committed on this side or the other of a theoretical fence. There are no territorial boundaries in cases of such misconduct. The wrong and the guilt is within the person himself, and he carries it with him; he cannot be mentally and professionally pure in Missouri and impure in Illinois.").
270 Ritts, supra note 97, at 55.
271 See id. at 34-35 ("[I]n the interest of bar 'purification,' a court has subject-matter jurisdiction to hear any case involving alleged professional misconduct of its attorneys; the purification interest, however, is not so strong, standing alone, as to justify application of the foreign state's rules where they conflict with the forum's rules which are more permissive.").
272 See id. at 40 (stating that "'purification' alone is not an adequate answer to choice-oflaw questions when they arise, since the purification goal was advanced equally well in both sets of cases [where courts asserted disciplinary jurisdiction over attorneys licensed in that state for extraterritorial conduct], regardless of whether forum or foreign law was applied"). For two cases applying identical reciprocal discipline to attorneys disbarred in another jurisdiction for misconduct occurring in the other jurisdiction, see In re Harris-Smith, 87 1 A.2d 1 183, 1 1 84-85 (D.C. 2005), and/n re Barneys, 861 A.2d 1270, 1274-75 (D.C. 2004). Furthermore, if ethics rules are recognized as "only an imperfect representation of the 'moral purity' required for the responsible practice of law, then a state's concern for attorneys' 'moral purity' cannot alone justify application of its ethics rules in an extraterritorial manner, at least not where the other jurisdiction has meaningful standards of professional conduct to apply." Ritts, supra note 97, at 55.
273 MODEL RULES OF PROF'L CONDUCT R. 8.5(b)(2) (2002).
274 Id. R. 8.5(b)(2).
275 See supra notes 153, 156-57, 168 and accompanying text.
276 See supra note 187 and accompanying text (stating that dormant commerce clause principles determine whether the application of a particular state' s laws meets minimum constitutional thresholds rather than determining the one jurisdiction's law that would be most appropriate to apply in a given situation).
277 FLA. BAR R. 3-4.6; IND. RULES OF PROF'L CONDUCT R. 8.5; NJ. RULES OF PROF'L CONDUCT R. 8.5.
278 CAL RULES OF CT. R. 967 (allowing an attorney licensed and in "good standing" in another United States jurisdiction to provide "legal advice in California to a client concerning a transaction or other nonlitigation matter" as long as the attorney agrees that the provision of legal services is subject to California's rules of professional conduct); Colo. R. Qv. P. 220 (allowing an attorney "licensed to practice law ... in another jurisdiction in the United States" and "in good standing ofthe bar of all courts and jurisdictions in which he or she is admitted to practice" to "practice law in the state of Colorado . . . subject to the Colorado Rules of Professional Conduct"); NEV. RULES OF PROF'L CONDUCT R. 5.5A (requiring an attorney "admitted and in good standing in another jurisdiction ofthe United States, and who provides legal services for a Nevada client in connection with transactional or extra-judicial matters that are pending in or substantially related to Nevada" to file an annual report, along with a fee, to the State Bar of Nevada and to "familiarize himself or herself and comply with the standards of professional conduct required of members ofthe State Bar of Nevada").
Michael W. Loudenslager*
* Associate Professor of Law, Appalachian School of Law. This article is dedicated to my sons, Max, Alex, and Ben, who were bom shortly before I began to write this article. None of you will probably ever be able entirely to understand what your mother and I went through to have, raise, and love you all. The author would like to thank Professor Catherine Lanctot and Professor Allan Ides for reviewing earlier drafts of this article and providing helpful comments.…