Lawyer and Law Firm Web Pages as Advertising: Proposed Guidelines
Browne-Barbour, Vanessa S., Rutgers Computer & Technology Law Journal
Currently, there are no uniform standards designed specifically to regulate lawyer communications on the Internet. Each state and each federal district court is free to promulgate its own rules of professional conduct. (1) Each federal court can adopt the rules of ethics for the state in which it is situated, develop its own set of rules or choose not to develop any local rules to govern professional conduct. (2) For example, without uniform standards, lawyers and law firms advertising through websites accessible to the general public risk violating ethics rules in numerous states, thereby becoming subject to civil and criminal penalties in multiple jurisdictions and possible disciplinary proceedings. (3) Even if the proposed Model Rules of Professional Conduct ("Model Rules") are adopted, it is very unlikely that each of the fifty states will adopt these Rules. The states that do adopt the Rules will likely do so with modifications.
The following scenario demonstrates the need for clear uniform guidelines to govern lawyer communications on the Internet. Ms. Able, licensed to practice law in Pennsylvania, launches an Internet (4) website to provide personal information, including her biographical profile, as well as professional information, such as her practice areas, office address, telephone number, and other information. Visitors to the website can communicate with Ms. Able through e-mail and real-time electronic communication, or "chat rooms." Ms. Able's website complies with Pennsylvania's ethics rules governing lawyer advertising. Among the visitors to the site are two non-lawyers: one who resides in Florida and one who resides in Minnesota. Both are in search of a lawyer to represent them in separate, unrelated personal injury actions in Florida and Minnesota.
As these visitors are from Florida and Minnesota, should Ms. Able's website comply with Florida and Minnesota regulations governing lawyer advertising and solicitation? Does Ms. Able's website constitute an offer to render legal services to Florida and Minnesota residents? Since Ms. Able's website can be accessed from each of the fifty states, must the website comply with regulations governing lawyer advertising in each state? Is Ms. Able subject to sanction or civil and criminal penalties for failing to comply with ethical rules governing advertising, solicitation and the unauthorized practice of law in those jurisdictions where she is not admitted to practice law? No uniform guidelines specifically govern lawyer communications and conduct on the Internet. Consequently, Ms. Able's website may potentially violate regulations governing lawyer advertising, solicitation and the unauthorized practice of law in other jurisdictions, thereby subjecting her to civil and criminal penalties, and possible sanctions in Pennsylvania, the jurisdiction in which she is admitted to practice law. (5)
A separate set of ethical issues is raised if Ms. Able communicates with non-lawyer potential clients using chat rooms. (6) Is such communication considered advertising, which is permissible, or is it considered solicitation, which is prohibited? (7) Generally, as discussed in Part III B, lawyer participation in real-time electronic communication is analogous to direct, in-person solicitation and, therefore is prohibited.
This Article reviews some of the ethical issues raised by lawyer and law firm advertising via websites. In addition, the Article considers the extent to which such websites must comply with advertising rules governing lawyers in every jurisdiction in which the advertising may be accessed. Further, it also considers the potential for civil and criminal liability if the information contained on websites for lawyers and law firms fails to comply with state rules regulating lawyer advertising. Finally, the Article proposes uniform guidelines for lawyer and law firm websites. These guidelines should demonstrate good faith compliance with conflicting advertising regulations, thereby creating a "safe harbor" from sanctions for inadvertent and unavoidable violations of the various irreconcilable state rules governing lawyer advertising. …