ethics of attorney Web sites: Updating the Model Rules to better deal with emerging technologies, The

INTRODUCTION

Within the last decade, the Internet has grown from a relatively obscure communication tool used primarily by academics and members of the military, to one of the fastest growing communications media.1 Among the primary identifiable reasons for this growth is the ease of use offered by the World Wide Web,2 an Internet protocol that was estimated to have over 110 million users in the United States by the year 2000 - roughly forty percent of the nation's population.3 Web sites provide information on a virtually unlimited range of topics, including the law. Since a boom in law firm Web sites began in 1995,4 the legal profession has attempted to use the medium for everything from an electronic "yellow pages" ad5 to establishing a "virtual law practice" where a lawyer sought to communicate with clients exclusively via the Internet.6

sites on the World Wide Web, search engine sites like Yahoo and Altavista' list thousands of Web sites containing information about law firms and individual attorneys. The size of the law firm does not seem to dictate whether or not it will have a Web site; firms as large as Skadden, Arps, Slate, Meagher & Flom, with over 1300 attorneys,8 share the medium with single practitioners like David M. Lurie of Kansas City, Missouri.9 The rapid growth of the medium and the confusion that often accompanies emerging technologies generated uncertainty among many early attorney Web site creators.10 While some attorneys recognized that existing ethical rules controlled the content of their Web sites, and that they could be subject to disciplinary action for violations, a large number of attorneys were less willing or able to recognize the applicability of ethical rules to the content they placed on their Web pages.11 The common perception was that because the Internet as a whole is unregulated, strict compliance with traditional ethical rules was unnecessary. This view is changing, as over the last several years, numerous state ethics opinions have found that ethics rules dealing with advertising, solicitation, and client communication apply to information conveyed via Internet just as they do to more traditional modes of communication. 12

For these issues, although some state bar associations have opted to issue advisory opinions to help their jurisdiction's lawyers better understand their ethical obligations,15 a far greater number have only narrowly addressed problems associated with the emerging technologies, adopting a wait-and-see approach for larger issues.16 A notable exception has been the State Bar of Georgia's formation of its Computer Law Section, which was created to examine issues raised by lawyers' use of the Internet. 17

ing attorney advertising,23 and Rule 7.3 dealing with direct contact with prospective clients.24 The purpose of this note is to suggest how to bring Section Seven of the Model Rules "up-to-date," both by specifically addressing issues present in applying the Model Rules to emerging technology, and by incorporating the Supreme Court's distinction between "commercial speech" and protected speech into the rules.

maintain Web sites. Finally, the note examines the language of Model Rule 7.3 and what changes should be made to expand its application to emerging technologies like the Internet. The note concludes that the value of the protections offered to the public by the Model Rules are especially great when applied to the Internet and that those protections will be even stronger if the rules are updated.

I. POSSIBLE APPROACHES TO REGULATING ATTORNEY WEB SITES

Among the reasons that the Model Rules exist is to provide a framework around and boundaries within which lawyers may ethically practice law ultimately for the service of the public.25 Indeed, every state provides its lawyers with such a framework in which to work.26 However, the ethical regulation of emerging technologies like the Internet poses problems for rule-makers in that it is often difficult to identify or predict what problems will arise from the technology to threaten the public. The central issue in regulating attorney Web sites is whether the communications constitute a permissible form of advertising under the Model Rules. The Model Rules require any communications about the lawyer's services to not be false or misleading, and require attorneys to limit their direct contact with potential clients. There are three basic ways that regulators can successfully regulate emerging technology like the Web to remain consistent with current rules that regulate information about legal services: (1) by trying to apply the existing rules to communications made through the new technology; (2) by creating new rules to cover the new types of communications; or (3) by amending the existing rules to regulate the new communications.

A. APPLYING THE EXISTING RULES

issues of how to apply the rules to this new medium.29 There are several problems with this interpretive approach. First, the regulating bodies have been slow to act, causing substantial confusion among attorneys as to what their ethical obligations are. Second, interpretations of the rules are often narrow, leaving numerous other questions undecided. Third, the interpretative decisions applying the rules to new forms of communication are not as readily available to practitioners as the rules themselves, leading to situations where inadvertent rule violations might have been avoided if actual rule changes had been adopted.

B. CREATING NEW RULES TO DEAL WITH THE INTERNET

An alternative to the interpretative approach is to adopt completely new rules to address the ethics of legal services communications on the Internet. This approach is supported by the way many attorneys have embraced the Web. Lawyer advertising is still looked down on by many in the legal profession.3 This stems from the traditional view that attorney advertising brought an unwelcome aspect of commercialism to a profession for which serving the public was more central a goal than realizing a profit.31 For most of this century, attorney advertising was generally prohibited in most states.32 It was not until 1977, when the Supreme Court found general advertising bans unconstitutional in Bates v. State Bar of Arizona,33 that attorney advertising generally became allowed, although with considerable restrictions in most jurisdictions. Despite the fact that advertising rules have become comparatively relaxed, many attorneys continue to believe that advertising is harmful to the legal profession.34

advertisements, the information provided in a Web site is subject to far fewer limitations of space and cost and, in many cases, can actually aid a member of the public in making an informed decision about legal rights and obligations. Many lawyers appear to see their Web sites not as advertisements, but rather as sources of information. This distinction is similar to courts' differentiation between "commercial speech," which is sometimes subject to regulation, and protected forms of communication like political speech.36 The existing Model Rules provide little guidance about what information a lawyer may generally make available without crossing into the realm of restricted commercial speech and thereby subjecting herself to the restrictions in the ethical rules.

As the rules are dependent "primarily upon understanding and voluntary compliance,"37 and unclear rules and standards will increase the likelihood of violations, understanding the restricted commercial speech distinction is necessary for the regulators who are making and enforcing the rules and to the lawyers who must follow them. Web sites, more than traditional media, have underscored the importance of having a clear understanding of the difference between commercial and protected speech because of the large amounts of information that can be disseminated through the medium.38 However, the Supreme Court has yet to provide a set of clearly comprehensible criteria for what constitutes commercial speech.39 It is this lack of a clear distinction that leads many in the legal profession to claim that their Web sites should be seen only as freely distributed information rather than advertising, even though their main purpose in creating a Web site may be to "propose a commercial transaction."40

public), while at the same time recognizing the ethical disconnect in the minds of most attorneys between traditional forms of advertising and a presence on the World Wide Web.

However, attorney Web sites still present many of the same problems that traditional forms of advertising do. Web sites, for example, can still contain false and misleading communications as prohibited by Model Rule 7. 1. In some ways there is more cause for concern that a false communication in a Web site might be less visible than one in another medium, because there are larger quantities of information present or it could be deliberately disguised by the web site's creator.42 Any set of ethical rules drafted specifically to address Internet communications would necessarily repeat many of the same requirements of the existing Section seven of the Model rules if the two sets of guidelines were to be consistent. Drafting distinct rules for the Internet would also create a precedent of not applying the existing rules to emerging technologies, and infer that new rules should be created for future technologies that are not well addressed by the existing rules. Rather than offering new interpretations of the current rules or drafting an entirely new ethical code for the Internet, the most reasonable approach seems to involve amending the current rules to better cover problems presented by attorney Web sites.

C. AMENDING THE EXISTING RULES TO ADDRESS EMERGING TECHNOLOGIES

that their ethical rules should be amended to specifically address computer advertising.46

In contemplating changes to the existing rules, there is an ongoing debate about how strict the restrictions should be, especially in the area of attorney advertising.47 Because compliance with the rules is partly dependent on "reinforcement by peer and public opinion,"48 the effectiveness of an expansion of Model Rule 7.2's advertising guidelines49 to take Web sites into account will be questionable if attorneys and the public see the expansion as unnecessary. Many commentators have observed that the public appears indifferent about attorney advertising, although the issue is still debated.50

Radio and television advertisements, traditional brochures, yellow pages advertisements, and other advertisements in print media are costly and subject to inherent space restrictions. Web sites have no similar limitations. Web sites can be relatively inexpensive to construct and "publish," and can contain virtually limitless amounts of information.51 Although that information may be provided to attract public attention and thereby to attract clients, it may also be of great value to the reader. For example, a tax attorney who regularly posts changes to the tax law on her Web site is providing a service to taxpayers who may not otherwise be aware of the changes. The public interest would be served by structuring ethical rules in such a way as to encourage this dissemination of information.

II. HOW LAWYERS HAVE PARTICIPATED IN INTERNET GROWTH

attract the maximum attention from potential clients,52 also serves a number of useful purposes. The most common function is probably to provide contact information for an attorney. While in most cases this information is als(5 available from a telephone or legal directory, the convenience of checking for such information on Web sites is increasingly surpassing the usefulness of traditional directories.53

Web sites are also emerging as a useful way for lawyers and firms to disseminate information. A common feature on many larger law firms' sites is the presence of scholarly articles written by members of the firm.54 These articles may be otherwise unpublished or difficult to obtain elsewhere. The sites are used to provide clients and the general public with current information about the law firm and the state of the law, judicial opinions that may otherwise be unreported,55 and to recruit associates as well as other employees and consultants.56

It is in light of these functions that the ethical restrictions on the content of attorney Web sites must be considered. The approach of many jurisdictions has been to presume that attorney Web sites are designed to sell a lawyer's services.57 For example, the Pennsylvania Commission on Legal Ethics and Professional Responsibility, in an informal 1996 opinion, took the position that attorney Web pages are advertisements per se.58 While extending application of the rules to all content on an attorney Web site eliminates the problem that disciplining bodies may face in determining what is or is not commercial speech, this tight control over all Web site content could cause a chilling effect on posting speech that would otherwise be useful to the public.59

misleading communications and other unethical behavior. How permissive the standards should be depends on whether one views the Internet as a tool for informing the public of legal rights, responsibilities, and opportunities, or as a force that corrupts the image of the Bar by moving it away from its classic public service image and toward common commercialism.

III. THE ABA COMMISSION ON ADVERTISING'S PROPOSALS FOR CHANGE.

The stated goal of the Commission on Advertising's White Paper is to amend the Model Rules in such a way as to provide guidance to legal practitioners about the ethical use of emerging technologies like the Internet and, in so doing, to assure the protection of consumers of legal services.60 The White Paper considers the history of both the ethical rules dealing with lawyers' communications of services and the constitutionality of restricting such speech. It concludes by proposing changes to Model Rule 7.1 dealing with communications about lawyers' services, Model Rule 7.2 restricting advertising, and Model Rule 7.3 advising on the permissive forms of direct contact with prospective clients. The goal of the proposed changes is to relax some of the restrictions binding attorneys with regard to advertising and communication, and to create language that will cover current and future technological innovations to minimize the need for future rule changes.

A. CHANGES TO MODEL RULE 7.2: COMMUNICATIONS CONCERNING A LAWYER'S SERVICES

On its face, the language of existing Model Rule 7.1 appears to apply well without change to Web sites and other forms of Internet communication. The rule bans false or misleading communications that contain misrepresentations or omissions, create unjustified expectations about possible results of representation, or compare one lawyer's services with those of another without factual substantiation.6' The rule addresses probably the most important ethical consideration controlling the marketing content of attorney Web sites and also probably provides the best protection to the public against legal ethics abuses on the Web. However, the Internet poses a number of problems for applying the existing Rule 7.1.

"HTML" programming code64 that comprises the page. In either case, the text is not readily apparent to the party accessing the page. Although false or misleading statements hidden in a page, such as a phrase like "best tax lawyer," may not be noticed by the reader, the misleading language may be scanned by an Internet search engine65 used to locate the page for the reader, and the reader may be directed to the offending attorney's Web site.66

Another issue is whether a Web link to information on a Web site not under the attorney's control might constitute a false or misleading communication not covered by the existing Rule 7.1.67 As it currently reads, Rule 7.1 would not hold an attorney responsible for information on an outside Web page to which the attorney has provided a link, but which would constitute a rule violation if posted directly on the attorney's site. For example, an attorney might provide a link to a page on a client's Web site that contains statements suggesting that the attorney "never loses a case." If this statement were made on the attorney's own web site, it would constitute a violation of current Rule 7.1 (b) as it is likely to create an unjustified expectation about the results that the lawyer can achieve. However, Rule 7.1 does not contemplate statements made by third parties to which the lawyer is calling attention.

Another potential problem is that of outdated information on a Web page.68 The larger and more elaborate an attorney's Web site becomes, the greater the chance that information provided on the site will be outdated and inaccurate. A lawyer might, for instance, post an article that promises tax relief through a certain type of tax planning strategy, and not remove it following a relevant change in the tax code. The communication might then constitute an inadvertent misrepresentation of law, and be punishable under Rule 7. 1(a).

incorporate the Supreme Court's distinction between commercial and protected speech into the rule. The proposed Rule 7.1 explicitly applies only to commercial communications and includes a new preamble to Section Seven of the Model Rules offering guidance as to the difference between commercial and protected speech. Taking its language from the Supreme Court's decisions in City of Cincinnati v. Discovery Network, Inc.70 and Central Hudson Gas & Electric Corp. v. Public Service Commission of New York,71 the preamble defines commercial speech as "that which `proposed a commercial transaction' or which is `related solely to the economic interests of the speaker and its audience.' ,72 Acknowledging that it is possible for commercial speech to be mixed with protected expressions, the preamble advises that "[i]f the speech is inextricably intertwined, it may be given full First Amendment protection."73

Incorporating the commercial speech language into the rule is a good idea and one that will aid practitioners in complying with the rules. The Internet provides a way for attorneys to communicate information with unprecedented ease without necessarily attempting to solicit clients. Although specifically writing the commercial speech limitations into the rule does nothing to change the enforceability of the restrictions, it provides the attorney who seeks to publish information on her Web site with the assurance that she is not violating the ethical rules.

changes are not made to the site by unauthorized individuals.75 The "make or permit" language in Rule 7.1(a) raises similar questions about an attorney's responsibility for changes made by unauthorized individuals.76

Instead of the mandatory language of the current Rule 7.1 and proposed Rule 7.1(a), proposed Rule 7.1(b) contains a list of points that lawyers "should" follow to avoid making false or misleading communications.77 One notable change is that mandatory prohibitions against creating unjustified expectations about the results a lawyer can achieve and implying that a lawyer can achieve results by violating the law or ethical rules in the current Rule 7.1 (b) would no longer be mandatory under proposed Rules 7.1(b)(1) and 7.1(b)(4). The White Paper offers no explanation for lessening these requirements by including them with the suggestions in the proposed Rule 7. 1(b) rather than with the mandatory language of proposed Rule 7.1 (a). The current Rule 7.1 (c), which prohibits a lawyer from comparing her services with other lawyers' services, is mysteriously eliminated altogether.

The proposed Rule 7. 1(b) does address many of the Web-related issues present under the current Rule 7.1. The issue of hidden text in a Web page is addressed under proposed Rule 7.1(b)(7), which bans communications that "may not be readily apparent to prospective clients,"78 but which would constitute misrepresentations if they were apparent. Under proposed Rule 7.1 (b)(6), the question of a lawyer's responsibility for false or misleading communications made by others that are accessible through links on the lawyer's site is addressed by advising that such references be avoided. Additionally, the question of a lawyer's responsibility for outdated information on her Web site is addressed under proposed Rule 7.1 (b)(5), with the instruction that attorneys should take "all reasonable steps" to prevent the dissemination of outdated or inaccurate information.79

B. CHANGES TO MODEL RULE 7.2: ADVERTISING

medium that require frequent updating to ensure the currency and accuracy of information.

How onerous the retention requirement is depends on the type of copies the attorney is required to keep. Requiring an attorney to save printed copies of her Web site after every change would impose a substantial cost and would probably lead to attorney Web sites that contained relatively little information and were seldom updated. Many states have adopted retention requirements in their ethical rules, although it appears that many lawyers may not comply by regularly saving updates to their Web sites. As the problem is unresolved in most states, cautious lawyers are likely to be forced to save copies of all changes.

The White Paper proposes that commercial communications under Rule 7.2(b) be retained for ninety days after their last dissemination.84 The Rule also allows certain communications that are in compliance with the proposed Rule's advisory language to be exempt from the retention requirement.85 The information exempted is essentially what might be found in a typical legal directory listing, including the names of clients regularly represented, the attorney's participation in a prepaid or group legal services plan, participation in a non-profit lawyer referral service, available credit arrangements, and appointment scheduling information.86 The comment to the proposed section explains that the ninety-day retention period is designed to eliminate the disincentive the two-year rule provides for keeping information current.87

Keeping the two-year retention requirement of the current Rule 7.2(b) is probably the best answer to the problem. Despite the Commission on Advertising's assertion that technologies like Web pages complicate the "otherwise simply [sic] task of record retention,"91 the expense of saving the information can be minimized by allowing lawyers to retain the information electronically. It is now possible to purchase data storage devices at a relatively low cost that can reliably store large quantities of electronic information.92 The revised rule should keep the two-year retention period and specify that electronic copies are sufficient to comply with the retention requirement.

Requiring that copies of Web sites be maintained electronically should not only be allowed but should be required. Web sites are increasingly using active and interactive components. A site may, for example, ask a visitor to answer questions and based on the answers entered, automatically customize the site for the user. That customization could take the form of pages with individualized content with information about the specific area of law about which the visitor is interested. The way such interactive components work can be much more accurately represented by an electronic, functioning copy of the Web site than by a printed paper copy.

shifts the record-keeping burden to the disciplining authority and makes the investigation and proof of ethical transgressions more difficult. Disciplinary agencies' budgets are notoriously small, and they have inadequate staffing and resources.96 Because the burden of electronically retaining Web site changes is low, the safe-harbor provision of proposed Rule 7.2(b) makes little sense.

A positive labor-saving feature of the Commission on Advertising's proposed rules is its rejection of a filing requirement for advertising materials.97 Although the current Model Rules reject filing requirements as being "burdensome and expensive relative to [their] possible benefits" and of "doubtful constitutionality,"98 many states have policies that require attorneys to file copies of advertisements with the disciplinary authority for review.99 Some states even charge filing fees.100 Although a filing requirement might be a workable safeguard for other forms of advertising such as yellow pages advertisements, requiring attorneys to file every change made to a Web site would be tremendously burdensome even for attorneys who maintain small Web sites. Further, it would discourage both the growth of Web sites and the updating of posted information. Some states have already come to realize how unworkable this ethical safeguard is when applied to attorney Web sites and have modified filing requirements previously in effect.101

comments to those sections have been amended to include references to the Internet.105

C. CHANGES TO MODEL RULE 7.3: DIRECT CONTACT WITH PROSPECTIVE CLIENTS

The main problem with the current Model Rule 7.3 is similar to the problem with the current Model Rule 7.2(a): the rule, which was introduced in 1983, mentions nothing about electronic communications like those through the Internet. Rule 7.3, which deals with an attorney's direct contact with prospective clients, specifically addresses communications conveyed in person, over the telephone, or through recorded communications, but mentions nothing about other electronically transmitted communications.106 Many state ethics opinions have found this a low hurdle to overcome, and have almost universally applied the current Rule 7.3 to Internet communications.107 However, as with the other rules, the more specific the rule is, the greater the likelihood that practitioners will follow it.

designed to initiate contact between individuals already known to each other or individuals who share pre-stated conversational interests (as with the wellestablished computer chat room). While such technology has not yet developed for general use, it is easy to anticipate a way by which new visitors to a Web site could be identified by something like an ICQ number, contacted in real-time, and solicited for legal services.

Proposed Rule 73(c) adds the Internet to the existing language of the current rule to improve its clarity. Rule 73(c) requires that solicitations sent to a prospective client state clearly that the communication is "Advertising Material." 16 For electronic communications, the rule requires that the warning be included at the beginning of the communication.117 While the biggest effect of this change would probably be on e-mail communications, with the development of the instant-messaging technology such as ICQ, it will become increasingly relevant to the Web. While the "Advertising Material" warning probably would not be required on Web pages because users must request that material be downloaded to them from Web sites, it is possible that Web features such as windows that are programmed to open automatically without the user's request would require the label.

CONCLUSION

J. CLAYTON ATHEY*

* J.D., Georgetown University Law Center (expected) May 2000.

Copyright Georgetown University Law Center Spring 2000
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