NetEthics Note: This article was written in April of 1995 by T. K. Read, JD, L.LM., and is slated for publication by the Western State University, School of Law, Law Journal, in their Winter 1996 publication. Ms. Read is the founder of the world's first wholly on-line arbitration/mediation forum, GAMA, Inc. and is a member of the Netethics Committee.
According to Gareth Branwyn, a self styled "flag-waving Net citizen since 1987"1 and the author of numerous articles and books on and about the Internet:
Everyone is pouring into cyberspace.... The Net has become hip, essential to modern life. Ma, Pa and the kids want in on the action. Trolling the Net looking for news stories has become a full-time job for journalists and TV talk-show researchers. The business community is also hitching up its wagon trains and heading into the vast uncharted territory of cyberspace.. Current estimates put the size of the Internet at over 2 million sites and over 20 million users worldwide...2
With all the hype and hoopla, even the most conservative, old school attorneys have to wonder about what the Internet can offer the legal profession. Well, come aboard! We're about to take a one hour tour of the World Wide Web, the most interesting and visual route on Information Superhighway.3 Along the way, we will overview other Internet applications that can be used in conjunction with the Web and we will be stopping at sites that are either maintained by lawyers or are of general interest to the legal community. Our goal is to identify how the Net, and in particular, the World Wide Web, is presently being utilized as an advertising medium by legal professionals, and, after an overview of relevant case and statutory law and ethical rules, we will make an educated guess as to the outcome of any clash between use and regulation.
But, first, let me back up for a moment. For those of you for whom this is your first trip, the Internet, aka "the Net", aka "The Information Superhighway", aka "Cyberspace,"4 is an electronic medium composed of interconnecting computer memories and telephone networks from around the world.5
It is currently being dubbed as both the greatest democratization factor ever known and as history's greatest threat to an organized, peaceful society.6 The one thing agreed upon by both proponents and antagonists alike is that the Internet is as significant a technological development as the car, phone, or TV. and that it will change the world as we know it.7 Consequently, if global change is on the way, then a corresponding change in the practice of law is also imminent and the beginnings of this change can be seen from observing how lawyers today are currently utilizing the Net.
II. A BRIEF OVERVIEW OF INTERNET APPLICATIONS
Access to the Internet is typically provided by either universities, for whom the motive is the exchange of information to facilitate research, or by private, for profit companies called "access providers".8 I access the net through a private company on a PC loaded with Windows. With the click of my mouse I have just brought up a menu of various Internet applications designated by their own icon. Clicking the mouse on a particular icon sets that application in motion. My access provider's Internet start up software has several software applications, including: a browser for the World Wide Web, the destination of our travels; FTP, or File Transfer Protocol, which, as the name suggests, permits the transfer of computer files from one computer to another9; Gopher, a research tool10; IRC, or Internet Relay Chat, which permits real time, written communications between two or more parties11; An E-mail mechanism for reading and sending electronic mail12; and a newsreader for reading and posting articles to various newsgroups.13 Of these, the most pertinent to our discussion are the E-mail mechanism and FTP, due to their use in conjunction with Web sites14 and, of course, the web browser itself.
Right now I am accessing my E-mail mechanism. As I type in my password, electronic messages from all over the world are waiting to be passed from the storage space for my account that is maintained by my access provider to my computer. With the entry of my password, my E-mail application begins to down load these messages, one at a time. I can then retrieve and review these messages and/or "trash" or delete them. The "in" box of my mail program contains an index to these messages identifying each by a short title selected by the message sender.16
Internet E-mail is a useful tool for attorneys who have long distance clients as it is much less expensive than using the telephone, more dependable and quicker than regular or "snail" mail and permits the attachment of documents of any length to the main body of the message.17 With E-mail you can: send immediate replies to messages you receive; have your messages sent and received almost instantaneously; subscribe to mailing lists on topics of interest18; send and receive computer files; and send the same message to a number of different recipients.19 At present there are 406 different Internet mailing lists covering topics of legal interest.20
There is, however, a significant down side to the use of E-mail. E-mail cannot be relied upon for the transmitting of confidential information. By its very nature, E-mail is accessible by the Internet Access Provider and/or the Systems Operator.21 Additionally, the Access Provider and/or Systems Operator may keep back up copies of all the E-mail sent and received on its system. Thus, your client's E-mail may be retrievable by third parties long after it was sent.22 The many privacy and ethical issues involving the use of E-mail by law firms are outside the scope of this article.23
Having previewed E-mail and E-mail lists, we are now going to stop by for a quick visit to a cousin of Internet E-mail, the network newsgroups. Network newsgroups are accessible by way of software applications called "newsreaders".24 To access my newsreader, I simply click on the newsreader icon and within seconds I am part of a complicated web of connected computers and electronic bulletin boards that span the globe.25 Like the cork bulletin board in the community center, each newsgroup has public postings placed upon it by the newsgroup members.
Theoretically, each newsgroup covers a single subject and discussion is limited to that topic. Presently, there are over 4000 newsgroups with a topic to interest, annoy, or disgust nearly everyone.26 Of these over 430 have mirrored discussions in E-mail lists such as those described above and 82 deal with subjects of legal interest.27 Newsgroups differ from E-mail lists in that old postings are stored on the administrator's computer and are accessible long after the initial posting by anyone viewing the group's bulletin board.28
Finally, we are on to the motherload of communications devices for commercial enterprises, including law firms, that bill board in the sky known as the "World Wide Web". The World Wide Web has been called "the world's largest living document" and described as "thousands and thousands of text, graphic, audio and video files interlinked throughout the world."29 It uses "hypertext" to connect textual links to documents, graphics, software, movies and animations found on computers across the globe.30 Hypertext works by allowing you to click on a hypertext word (usually indicated as being such by its blue coloring) and pull up a "linked" or associated computer file.31
III. LEGAL PROFESSIONALS AND THE WORLD WIDE WEB
Because, as we all know, a picture is worth a thousand words, the World Wide Web is quickly becoming the net application of choice for many commercial enterprises, educational institutions, governmental organizations and legal professionals. Between May of 1993 and May of 1994, the number of sites grew from 100 sites to 3,800 sites.32 While this writer could not find any statistics on the total number of Web sites existing today, it would be hard to exaggerate the variety and number of sites that you can visit on a trip through the Web. To give you some idea, there are currently more than a hundred web sites hosted by legal based organizations and/or commercial enterprises alone. While it is all too easy to get sidetracked on a trip through the Web, we will be sticking to sites maintained for or by members of the legal profession.
To get to the Web, I simply click on my Web Browser icon and the browser interface screen promptly appears. Because I have pre-set my browser to go to The Global Arbitration Mediation Association's (GAMA), homepage, it appears in the viewing box.33 GAMA is the world's first wholly on-line arbitration/mediation forum. Because it is seeking a selective client base, GAMA's homepage is the principle way GAMA advertises its services. As such, the page is designed to attract visitors, and on the net the most acceptable way of doing this is to supply free information. GAMA's homepage provides an index with hypertext links to documents containing a free form bank of legal and business forms.34 Additionally, visitors to the page are told that they may direct their questions or comments to GAMA by clicking on a hypertext link to GAMA's E-mail where they can leave an E-mail message.35
GAMA is not the only legal site proffering free forms or other free information and instantaneous E-mail contact. Nearly every legal site I have visited has proffered some sort of free information designed to attract visitors and to keep them coming back for more and the option of letting the reader send an instant E-mail messages. A few examples of the more noteworthy are described below.
Attorney Marshall Dyer has established a site entitled "Net Watchers: A Monthly cyberzine featuring articles of interest to anyone following developments in the law as applied to Cyberspace and the On-line World."36 On his page, Mr. Dyer has a link to his e-mail which he calls a guest book for visitors to sign in and/or send him a short note. Amongst the various topics discussed in the March 12, 1995 Volume of Net Watchers are: An article on the settlement in the MTV v. Curry case; A "Special Update On The Jake Baker Prosecution", and; "House Bill HR666". The articles are accessible by clicking on the hypertext links in the page's index.37/p>
The second site on our short tour is Stanford University's Yahoo page.38 This site provides an interactive compass to the rest of the Internet. Yahoo is a comprehensive Internet directory of resources and information available via the Web. It has an index of hypertext links to other Internet homepages, and/or files, the scope of which is a good indication of the Web's current size. Presently this index has 19 primary categories with 34,978 linked connections to its database.39 These primary categories range from art to events, health, regional information and, yes, law. According to the Yahoo index, as of April 7, 1995 there were 221 new links in the "law" category, with subcategory topics like legal research, privacy, businesses and corporations, self help, and of course, arbitration and mediation.40 As a sub-subcategory of "law" you can access sub-sub topics, like: law firms and legal agencies; collection agencies; consultants; directories; firms; intellectual property; legal information providers; legal management consulting; paralegal; publishers; research; and technology.
Clicking on the sub-subcategory of "law firms and legal agencies" brings up a hypertext index of 51 law firms and legal agencies.41 These links take you to the Web sites, or homepages, maintained by these firms. The information contained on the index page about these firms ranges from as little as the firm name (which also poses as the hypertext link to that firm's homepage)42, to grandiose descriptions of the firm's alleged expertise that is best described as car salesman puffery. Only ten listings give regional references concerning which states and/or countries the firm is licensed to practice in. Of these ten, six were law firms located in countries other than the United States.
The following are examples of some of the home pages found at this index and what they have to offer:
a. Pepper & Corazzini, Attorneys At Law: Their page has an index with fancy, graphic, hypertext links to: A Firm Profile; Information Memos; Other Legal Resources On the Web; FCC WWW Site; FCC Gopher and Searchable WAIS Index. Additionally, the page has a request for comments with a hypertext link allowing the viewer to send direct Email.
b. Sokol & Timmons, P.A.: The Sokol & Timmons, P.A. page states, "This page is intended to help you get to know us better and to provide easy access to us. It also has an Email hypertext link and lists the firm's local phone, 1800 number and fax. Additionally, the page tells the viewer to watch the space for "FREE information with NO OBLIGATIONS..."
c. The Law Office of Larry G. Johnson: Mr. Johnson's page is one of the more conservative. It has no fancy graphic or logos, and in fact, looks like your typical business letterhead resume. In it he describes his experience, and gives his curriculum vitae which includes bar affiliations. His page also allows direct E-mail access.
Law firms are not the only legal professionals with presences on the Web that are accessible through the Yahoo Directory. Additionally, you can find there: "LAWINFO", a division of the Experienced Attorneys Referral Service Inc., which purports to place viewers in connection with "the best legal help available."43; "The Law Mall," a virtual cornucopia of legal information and services whose site is maintained by New York Attorney Carl Perkins,44 and; Lexis Counsel Connect.
One final aspect of directories such as Yahoo which deserves mentioning, is that they allow corporations and law firms that do not have their own direct Web address, to develop a Web presence. This is because Yahoo will connect the viewer to computer files, via FTP, as well as to actual Web sites. Some enterprising attorneys are already taking advantage of this opportunity, using the provision of information via the Yahoo directory as their vehicle with which to be seen on the Web.
For example, Thomas Leavitt has established a small data bank of information on the Arizona law firm of Cantor & Siegel which he has placed in his FTP directory.45 By clicking on the subcategory of "Cases" in the "law" index of Yahoo, I can pull up an index to a group of hypertext linked documents on Cantor and Siegel. The index also allows me to direct comments to Mr. Leavitt, via direct hypertext link to his e-mail.
From this short tour, it should be readily apparent that the interactive and relatively inexpensive nature of the Web, combined with the easy accessibility to millions of people that it may provide, makes advertising on the Internet a tempting alternative for a growing number of law firms and legal professionals. With the Net, a solo practitioner whose office is located in Monkey's Eyebrow, Kentucky can entertain a world audience for less money each month than he/she spends on a week's worth of groceries. With all this opportunity, it is quite likely that the Information Superhighway will become clogged with scores of legal bill boards in the near future. Unfortunately, due to the reactionary nature of our profession, one legal commentator has noted, "the growth of electronic communication and data manipulation has not been matched by an equal growth in understanding on the part of legislatures, the judiciary, or the bar."46
IV. APPLICATION OF CURRENT ETHICAL RULES TO WEB BASED ADVERTISING
The influx of the legal profession into the World Wide Web raises many, interesting legal issues and questions that should be boggling to ethical theorists. If you build it and they come, what then? Are the home pages we find via the Yahoo directory a type of advertising? If so, what type of solicitation will they be considered? Does the interactive nature of these sites elevate them to the status of in person communications? Where does the advertisement take place if it has a potential world-wide audience? If you offer free, legal information that is accessible to people that live outside the jurisdiction in which you are licensed to practice, does this constitute practicing law without a license? What are the ramifications of offering free, legal forms and advice on the net? Do law firms having Web sites or proffering information via Web Directories such as Yahoo, have to comply with their state's ethical requirements for attorneys advertising in the print or electronic media?
These questions should be of even more interest to practitioners who are considering whether or not to ride the wagon west towards the hypermedia horizon. Historically, being one of the first attorneys to use an advertising medium has brought no guarantee that the practitioner would not be sanctioned for alleged ethical violations, or even disbarred.47
A. THE WEB IS A MIXED MEDIA FORUM
In deciding what ethical rules apply to attorneys erecting bill boards on the Web, the first question is how to classify this medium. Those legal experts who have examined this issue appear to agree that the Internet, and particularly that part of it known as the World Wide Web, is best described as a combination of the print and electronic media.48 As stated by David Loundy:
None of these analogies is especially useful taken individually. Each is accurate in describing some situations, but lacking in describing others. There is a tendency to look at a service and give it a label, and then regulate it based on its label. This labelling works well in some instances; but, when a service has a number of communication options, such as.... bulletin boards, E-mail, and a chat feature.... one analogy is insufficient.49
As a consequence of the Web's ability to allow a mixing of advertising mediums, an attorney's Web site must be analyzed on an individual basis by comparison with analogous cases from the older communications methods.
B. ARE ATTORNEY WEB SITES COMMERCIAL SPEECH?
In an informal poll I did of ten attorneys owning sites on the Web, I inquired as to what steps they had taken to insure that their page complied with their State Bar's rules for advertising. To my great surprise several responded that they did not consider their sites to constitute advertising, and therefore had done nothing. Instead of advertising their services as an attorney, they maintained that they were acting in another role - that of a publisher of free information.
This distinction is important because different varieties of speech are afforded different levels of constitutional protection.50 Commercial speech may be restricted by state and federal governments if it is false, deceptive and/or misleading51, or if it advocates an illegal action or transaction52, whereas political speech, even that promoting illegal action, may not.53 Commercial speech that does not fall within these categories may only be restricted if necessary to serve a substantial governmental interest, and then only by means that directly advance that interest.54
The obvious threshold question, then, regarding attorney maintained Web sites, is whether or not a particular site constitutes commercial speech or noncommercial speech. As stated by the United States Supreme Court in Ohralik v. Ohio State Bar Association, 436 U.S. 477, 98 S.Ct. 1912, 56 L.Ed.2d 444, the distinction between commercial speech and other varieties of speech, is whether or not the speech in question proposes a commercial transaction.
As seen on our journey through the Web, sites, attorney maintained sites run the gamut between those that are there as an obvious inducement to the viewer to enter into a future commercial transaction with the firm, and those that appear to have been established for other, apparently noncommercial purposes. At one of the spectrum you have the page of a practioner which boldly requests that the viewer contact them for free information and at the other end, you have the NetWatchers' site, which makes no reference to its owner's status as an attorney, and appears to be a legitimate, publishing effort. The question therefor becomes, where does the demarcation lie between the two?
a. Obvious Advertising:
1. Provision of Free Information In Conjunction With Solicitation
As held by the United States Supreme Court, written communications wherein the Attorney makes a solicitation aimed at making a profit or drumming up new business is advertising. This includes instances where the advertisement provides accurate, free, information beneficial to a segment of the population.55
In Zauderer v. Office of Disciplinary Counsel56, an attorney was disciplined by the Ohio Bar for running a newspaper advertisement advising readers that his firm was representing women who had suffered injuries from the use of a contraceptive known as the Dalkon Shield Intrauterine Device and was willing to take on new clients. The ad included an accurate illustration of the Dalkon Shield and stated that the device had generated a lot of lawsuits, then proffered the legal opinion that the reader should not assume her claim was time barred. Not withstanding the provision of accurate, free information on a subject of public interest, the Court found these written statements to be "advertising pure and simple".57 Citing to Central Hudson Gas & Electric Corp. v. Public Service Comm'n of New York, the Zauderer court noted that simply because advertising "links a product to a current public debate" is not enough to entitle it to the constitutional protection afforded noncommercial speech.58 The test used to distinguish between commercial speech afforded limited protection and comments on public issues afforded the full panoply of protections is "common-sense".59
It would thus seem apparent that those Web pages where the site owners identify themselves as attorneys, refer in some way to their subject matter expertise, level of experience and/or skill, provide free legal information, and invite dialogue between the reader and the firm, must be classified as "advertising" which can be regulated by the states.
2. Provision of Free Information Without Solicitation
Less easily resolved, even applying the common sense analysis, is the question of how to categorize Web sites maintained by attorneys which, provide free legal information, invite dialogue between the reader and the lawyer and/or his firm, and which do not refer to the owner's status as an attorney.60 These are arguably more like a true publishing venture deserving the full spectrum of protection afforded free speech. However, the other side to the argument is that these sites may create an image of the owner as an expert in a field, and then, through invited dialogue, allow the reader to discover that the site owner is a lawyer, thus enhancing his/her image as having legal expertise in a specific area. This is analogous to the bait and switch method of advertising, where the free information and/or advice is proffered as the bait and legal services are the switch. More than one court has found such bait and switch tactics to be a punishable breach of ethical rules.
The most severally critiqued behavior appears in those cases where counsel baits the reader with a non-existent service or company. For example, in Kentucky Bar Assoc. v. Gangwish61, an attorney advertised in a newspaper under the name of a purported, incorporated genealogy service, offering to help people search for their natural parents. However, when readers responded to the ad, the attorney replied on his own stationary with letter head identifying him as an attorney and the reply letter stated that he represented the service. In fact, the alleged genealogy service had never been incorporated. As a result of these actions, he was found guilty of breaching an ethical rule, and of fraud, deceit and dishonesty.
Similarly, in People ex rel. Chicago Bar Assn. v. Ashton62, counsel used the fictitious name "Investors' Protective Bureau," on cards distributed to a stock broker for redistribution to stockholders. Noting that there was no such business, nor any intent to create one, and that the entire ruse was merely a blind to deceive the unwary and solicit business, the court suspended the attorney for a year.
Along the same line, in Re Pouker63, an attorney who sent out circulars in the form of a legal summons, purporting to be sent out by himself as an attorney, was disciplined for unethical advertising and solicitation, even though he testified that the circulars were actually printed on behalf of a casualty company for whom he was an insurance agent. Note that the court rejected argument that the attorney had the same right to advertise as any other citizen in a non-legal profession and implied that it was the attorney's intentional commingling of his roles that warranted discipline.
In contrast to the above cases where unethical conduct was found, in State v. Grindol64, a practicing attorney who also worked in a bank was found not guilty of improper advertising for the precise reason that he did not combine his roles, never indicating that he was an attorney while he was working at the bank. Similarly, in Re Thibodeau65, the court rejected a charge levered against an attorney that he used a business he owned and operated, Automobile Legal Association, as a mere cloak for unprofessional solicitation of business for himself and his firm. Important to the court's finding was the factual determination that the Automobile Legal Association was indeed a legitimate operation, that the attorney and his law firm were not even on the Association's list of recommended attorneys and did not split fees with the attorneys that were.
While the above cited cases arguably lose some of their authority if interpreted as being solely blanket prohibitions against certain types of advertising not permitted at the time the case was heard, however, their logic still stands to the extent that they prohibit misleading action and not just prohibited forms of advertising.
C. WEB SITES ARE PROTECTED IF LAWFUL AND NOT MISLEADING
Under the guidelines set by the United States Supreme Court for the regulation of advertising, a Web site would have constitutional protection if it was lawful and was not misleading. As stated by the Court:
Our general approach to restrictions on commercial speech is.. by now well settled. The States and Federal Government are free to prevent the dissemination of commercial speech that is false, deceptive or misleading.. Commercial speech that is not false or deceptive and does not concern unlawful activities, however, may be restricted only in the service of a substantial governmental interest, and only through means that directly advance that interest.66
1. Lawful Speech
Because advocating that Web travelers pay to partake in unlawful behavior is without a doubt commercial advertising that can be constitutionally regulated by the states, our discussion shall focus on commercial advertising by attorneys that falls in to the gray area between lawful and unlawful advertising, and in the even fuzzier area between lawful and unethical advertising.67 In doing so we will attempt answer the following questions: Where does the advertisement take place if it has a potential world-wide audience? If you offer free, legal information that is accessible to people that live outside the jurisdiction in which you are licensed to practice, does this constitute practicing law without a license? Unfortunately, these questions involve the effects of advertising on the Web, a unique, unprecedented advertising medium, and they can only be answered by inference after reviewing those cases having some factual elements in common. Note that none of these cases can be termed "factually close", only the most factually similar available.
a. Provision of Forms And/or Free Information
The United States Supreme Court has upheld the provision of free legal information by an attorney that is not deceptive or misleading in attorney advertising.68 However, given the global nature of the Web, the cautious attorney should not apply this holding as the basis for enriching his Web site with the provision of general legal information, FAQ's on a legal subject, or legal forms. It should be remembered that the owner of the site will NOT be a licensed attorney in the judicial district of the majority of those individuals having access to it and, unfortunately, the states are divided on how to treat the provision of such information by a layman.
A good number of states dealing with the issue have held that the provision of legal forms and information by a layman constitutes the unauthorized practice of law.69 These states have precluded the provision of will forms70, divorce forms71, estate planning forms72, mechanics' liens kits73, and bankruptcy forms.74 Further, at least one court has specifically prohibited the use of a question and answer format giving advice on a legal subject.75
Additionally, attorneys should be especially cautious in erecting sites that provide legal forms and information and have a direct E-mail connection. This is because, even those cases holding that the provision of free information and legal forms does not constitute the unauthorized practice of law emphasize that they are authorizing this practice only to the extent that no contact is made between the publisher and the purchaser.76
b. Use Of Firm Name On Medium Having Global Dispersion
Equally disturbing, given the global nature of the Web, is the line of cases finding that the practice of multi-state law firms that use their firm name in a jurisdiction where none of the named partners is licensed to be unethical. Applied to the Web, this legal analysis could render the mere presence of sites maintained by law firms unethical as obviously, not even the largest firm will have a named partner who is licensed in every state and country in the world.
In Re Professional Ethics77, dealt with the problem of a multi-state law firm that wanted to use as its firm name, the names of two partners who had never been members of the state bar, their standing to complain of a rule prohibiting this use, and the effect of out the firms use of out of state television advertising which was beamed into New Jersey. As such, In Re Professional Ethics dealt with three issues relevant attorney advertising on the Web: 1. Firm name as implied statement that the named members are licensed to practice in the state; 2. Standing of state to effect attorneys who are not members of the state's bar; 3. The effect of an advertising medium that crosses state lines.
In In Re Professional Ethics, Jacoby & Meyers, a law firm having offices in California and New York, petitioned the Advisory Committee for revision of a disciplinary rule which appeared to prohibit it from opening an office in New Jersey under its name based upon the fact that neither named partner was, or had ever been, a member of the New Jersey Bar.78 The Disciplinary Rule under review required that the lawyers whose names were used for the firm name be members of the New Jersey Bar.. In order to have the opportunity to hear the firm's petition, the Disciplinary Committee gave its jurisdictional rules a broad reading, after recognizing that a stricter reading would result in dismissal. It then held that the Disciplinary Rule was not unconstitutional, and that its plain language prohibited Jacoby & Meyers from opening a Jew Jersey office under that name. Jacoby & Meyers then appealed to the New Jersey Supreme Court.
Prior to ruling on the substantive issues, the New Jersey Supreme Court first dealt with the jurisdictional question. While it too recognized that its rules appeared to prohibit the firm from seeking relief before it, the Court found that a relaxing of the jurisdictional rules was appropriate as "a strict application would both needlessly delay the resolution of an important issue and result in an injustice."
The New Jersey Supreme Court then went on to affirm the Advisory Committee's ruling on appeal over a panoply of constitutional challenges.79 Finding that the Rule did not violate any of Jacoby & Meyer's constitutional rights80, the Court specifically held that the First Amendment did not protect the use of the firm name "Jacoby & Meyers" in New Jersey. In so holding, the Court noted that a trade name, such as a law firm name, is subject to regulation if its use poses "possibilities for deception," and that such regulation has been up held by the United States Supreme Court.81
Emphasizing that the potential for misleading the public via the "ill defined associations" found in trade names was precisely the evil that the Disciplinary Rule was designed to address, the Court went on to hold that the firm name "Jacoby & Meyers," as used in New Jersey, had the potential to mislead the public as it implied that those named attorneys were practicing New Jersey attorneys and/or that those clients retaining the firm would actually be represented by the named partners themselves.82
The Court then went on to confront the issue of how to deal with Jacoby and Meyers' use of out of state television advertising that crossed the geographic border into New Jersey. Noting that, at the time, New Jersey banned attorneys from advertising on TV, the Court found that permitting Jacoby and Meyers to beam television ads into New Jersey from New York that emphasized the availability of their legal services in New Jersey, via associated firms, would give a substantial advantage to any New Jersey Firm that was associated with them over competing non-associated firms. The Court then held that to prevent this unfair occurrence, any New Jersey firm that was associated with Jacoby & Meyers would not be permitted to advertise that association unless and until the firm ceased its out of state advertising activities.
The New Jersey Supreme Court's concerns that use of firm names by non-licensed attorneys and the consequent potential for deception, are particularly applicable to advertising over the Internet via Web pages. Further, the problems inherent in regulating multi-state law firms is also exacerbated by the Web. On the Web, home pages by attorneys who are only legitimately practicing law in one or two states, receive a global audience, a large percentage of which will not understand that a licensed attorney in Georgia, whose trial practice is stated by his web page to include DUI, does not have the same authority to consider questions from an individual charged with DUI on the Santa Monica Freeway.
Unfortunately, given the global nature of the Web, it is not inconceivable that an attorney advertising via a Web page could find his/her self charged with practicing law without a license, or with misleading advertising, for a Web advertisement that may comply with one state's advertising rules, yet violate another. Consider In Re Schwarz83, wherein an attorney was disciplined for sending out cards and letterhead which implied that he was authorized to practice law in two states where he did not hold a license. Counsel was found to have intentionally misrepresented his ability to take on clients to numerous persons. Likewise, consider the case of The Florida Bar v. Kaiser.84 In that case, Kaiser, a New York attorney who maintained an interstate law firm with offices in Florida and in several other states, was convicted of practicing law without a license for giving the impression, via advertising, that he was authorized to practice law in Florida when he was not even a member of the Florida bar. The referee found that Kaiser knew that his ads were misleading and knew that they created the impression that he was authorized to practice law in Florida.
Part of the problem of applying the analysis made by the various courts described above to attorney maintained Web sites is the question, not as easily answered as it first appears, of where the Web site is actually located, and hence where the advertisement takes place. This question is important because as Web based Interstate Commerce grows, it will become more and more common for consumers, including attorneys, to purchase their Web sites from companies located outside their state.
Thus, their home page might be physically located on computer files 1000 miles away from their home office. Consequently, Attorney Smith who is licensed to practice in State A could maintain a site in State B in which he advertises his ability to practice law, via Web pages seen around the Globe. If on these pages, he fails to advise that his practice is limited to the representation of clients in State A, he may as a consequence draw the wrath and ire of bars across the continent and even abroad. It would appear from our case law that Attorney A may be subject to disciplinary action in State A for misleading advertising and might be prosecuted for practicing law without a license in State B and in the rest of the country.
What are the possible solutions to this dilemma? The United States Supreme Court has suggested one, and Internet culture another.
a. Disclosures, Limitations, And Disclaimers
With all the confusion to consumers that may result from a World Wide Web clogged with attorney maintained Web sites, it is not inconceivable that a state may decide to prohibit the use of such sites for attorney advertising all together. However, such all inclusive techniques are not likely to be upheld by constitutional challenge.
The Supreme Court of the United States has repeatedly held that a state should use discloser requirements to regulate commercial speech, as these tread more narrowly on an attorney advertiser's constitutional rights than does a flat prohibition.85 There are even limitations to regulation through the use of such requirements, as the Court has warned:
We do not suggest that disclosure requirements do not implicate the advertiser's First Amendment rights at all. We recognize that unjustified or unduly burdensome disclosure requirements might offend the First Amendment by chilling protected commercial speech. But we hold that an advertiser's rights are adequately protected as long as disclosure requirements are reasonably related to the State's interest in preventing deception of consumers.86
In Zauderer v. Office of Disciplinary Counsel87, the United States Supreme Court sustained the reprimand of an attorney who failed to comply with a disclosure requirement that he reveal in his advertising of his firm's availability to take on contingent fee's cases that clients will have to pay costs even if their lawsuits are unsuccessful. In Zauderer, counsel's advertisement, seeking clients who had used the Dalkon Shield, stated that "if there is no recovery, no legal fees are owed by our clients." The high court found this to be grossly misleading as the ad failed to clarify the distinction between "legal fees" and "costs". Said the Court:
When the possibility of deception is as self-evident as it is in this case, we need not require the state to conduct a survey of the public before it may determine that the advertisement had a tendency to mislead.88
In a footnote to Zauderer, the Supreme Court noted that any attempt by a state to disbar an attorney for failure to comply with vague, disclosure requirements, "would raise significant due process concerns", however, were the state to "articulate its disclosure rules ..... in such a way that they provided a sure guide to the advertising attorney, neither the Due Process Clause, nor the First Amendment, would preclude disbarment as a penalty for the violation of those rules.89
This Supreme Court precedent up-holding the use of disclaimers may be applied by practitioners advertising on the Web to attempt and keep their sites trouble free in this pre-Web regulation era. Disclaimers can be used to notify Web travelers that the free information and forms provided at a site should not be substituted for sound legal advice by an authorized attorney on the particulars of their legal problems; bold, large font warnings may label a site an "advertisement"; and large letter type may state the jurisdictional limitations of the firm's ability to practice law.
b. Restricting Access To Web Sites
As an additional solution to the many jurisdictional and ethical problems presented by attorney advertising on the Web, it is not inconceivable that states may require the implementation of limited access to attorney sites by requiring that attorney sites have restricted publication. This would mean that an attorney who is licensed in Georgia and California would have to restrict publication of his site to Web travelers in Georgia and California.
While the technology enabling the restriction of the publication of Web sites is not yet apparently developed, it is not inconceivable that as the Web grows more cluttered, this technology will evolve and perhaps even be demanded. There is Internet precedent available for the use of such restrictions. For example, at present, publication restrictions are permitted (and even encouraged) by Newsgroups, where the poster of a message can restrict access to his message by choosing a level of distribution from the following choices: World, North America, US, State, City or Local.90 However, presently, the very nature of the Web, with its linked sites and pro-access culture, will make the restriction of access to sites an unpopular choice.
V. CONCLUSION:INTERNET CULTURE & MEDIUM WILL AFFECT REGULATION AND USE
Finally, it should be noted and considered by any practitioner provisioning his wagon for a trip to the new frontier that the Internet culture itself must be taken into account in deciding what may be safely done and what may not and how regulation of attorney advertising in this new medium will evolve. Acts acceptable as normal elsewhere may not be acceptable in communications on Web and elsewhere on the Net. For example, the use of large letters in E-Mail communications and on Newsgroup postings are considered VERY impolite and the verbal equivalent of shouting.91
The application of this culture to the unique features of the Internet which allow what must be essentially described as "interactive advertising" may well result in an entirely new system of ethical rules and regulation. Rules and regulations applied to other mediums, even other electronic mediums, may simply not be practical as applied to the Internet.
An example of this is that presently, some states require publishers of electronic, ie; radio or TV advertising, to keep an accurate copy of the advertisement for four years after it is published.92 Such a rule will be particularly hard to enforce against attorney owners of Web based sites, who may very well change the format of their site on a weekly basis. As a result, evidence of allegedly objectionable material found on a site may be destroyed before its owner is even aware of an ethical objection. Thus, the changeable nature of Web based advertising, may require a whole new system of regulation, or stricter enforcement of the present one.
The former appears to be the more likely alternative, as noted by esteemed constitutional scholar, and Harvard Law School Professor, Laurence Tribe. According to Mr. Tribe, the pattern of development evidenced in our legal system is that the Courts are more apt to start over each time a new technology emerges, instead of applying law by analogy.93 Should this be the case, the courts may very well find that the interactive capabilities of the Internet may require more restrictive regulation than allocated other advertising mediums. It may be determined that the Internet permits solicitation that comes closer to in your face, in person solicitation which the United States Supreme Court has banned altogether, than to permissible, arms length, written advertising.94 As a consequence, the practitioner who decides that a ride into the hypermedia horizon is worth the not inconsiderable risk, would be well advised to take with him enough limitations, disclaimers and disclosures to protect himself against every eventuality.
1. Gareth Branwyn, 'Mosaic Quick Tour Fo rWindows', Bentana Press, 1994, at Section V.
2. Id. at 1.
3. See also, 'The Windows Internet Tour Guide,' by Michael Fraase, Ventana Press, 1994.
4. The term 'cyberspace' was created by William Gibson in his novel, 'Neuromancer.'
5. David Loundy, the revised 'E-Law: Legal Issues Affecting Computer Information Systems Operator Liability,' Volume III, No. 1, Albany Law Journal of Science and Technology.
6. Edward A. Cavazoa and Gavino Morin, 'Cyberspace And The Law," MIT Press, 1994, at Chapter 5, and G. Burgess Allen, 'Technology Update', October 1994, American Bar Association.
7. 'Cyberspace And The Law,' supra.
8. 'The Window Internet Tour Guide,' supra, at pages 14-17.
9. Id., at Chapter 6.
10. Id, at Chapter 7.
11. Id, at page 282.
12. Id, at Chapter 4.
13. Id, at Chapter 5.
14. The 'place' maintained on the Web by an individual, law firm, governmental entity or commercial enterprise, is frequently referred to as a web 'site' or 'homepage'.
15. 'Windows Internet Tour Guide', supra at Chapter 4.
17. 'Cyberspace And The Law,' supra.
18. Members of an e-mail mailing list post messages of general interest to other members of the list concerning a designated subject. Presently there are more than 40 legal e-mail lists having topics that range from law enforcement to software used in trials.
19. 'Windows Internet Tour Guide', supra, at page 65.
20. Lyonetter Louis Jacques, 'Lyo's List'. Found on the Net at: gopher://lawnext.uchicago.edu.
21. 'E-law: The Legal Issues Affecting Computer Information Systems,' supra.
22. Note that the Electronic Communications Privacy Act of 1986 makes it a felony to intercept e-mail on public service e-mail systems. At present, no case law has held that the Internet constitutes a public service e-mail system covered by the Act.
23. See 'Cyberspace And Your Rights, ' supra.
24. 'Windows Internet Tour Guide, ' supra at page 149.
25. Id., at page 148.
26. Id., at page 148 to 150.
27. David Laurence, 'Mailing Lists Available On Usenet', found on the Net at: xref: bloom-beacon.mit.edu-news.lists:1397-news.groups:61957-news.announce.newg.
28. 'Windows Internet Tour Guide,' supra at page 150.
29. Gareth Branwyn, 'Mosaic Quick Tour Guide For Windows,' Ventana Press, 1994.
30. Id., at pages 2 to 4.
32. Id., at page 9.
33. GAMA's home page is found on the Net at: http://www.gama.com.
36. Found on the Net at: http://www.ionet.net/~mydyer/netwatch.html.
37. For example, clicking on the hypertext link "House Bill Hr666" pulls up the hated bill.
38. Found on the Net at: http://akebono.standford.edu/yahoo.
39. Id., the statistics are based on information found at the Yahoo site, Id., on April 8, 1995.
43. Found on the Net at: http://www.lawinfo.com/~netlaw/index.html.
44. Found on the Net at: http://www.lawmall.com.
45. Cantor & Siegel is the infamous law firm that became net legend by breaking netequette when they sent out junk mail to a large number of newsgroups.
46. 'E-Law: Legal Issues Affecting Computer Information Systems.' supra.
47. See: Re Scharwz, 186 NEYS 535, aff'd 231 NY 642 (1921), where an attorney was disbarred for mailing 4,500 circulars; Mayer v. State Bar of California, 2 Cal 2d 71, 39 P2d 206 (1934), where an attorney was disbarred for mailing 80 postcards to other attorneys; Librarian v. State Bar of California, 21 Cal 2d 862, 136 P2d 321 (1943), where an attorney was suspended for installing a 4 feet by 8 feet sign on the top of a building; and Re Burgess, 279 SC 44 (1983) where an attorney was disbarred for 'showy' undignified bankruptcy advertisements.
48. 'E-Law: Legal Issues Affecting Computer Information Systems, supra.
50. Zauderer v. Office Of Disciplinary Counsel, 105 S.Ct. 2265 (1985), at pages 2274 to 2275.
51. Friedmand v. Rogers, 99 S.Ct. 887 (1979).
52. Pittsburgh Press Co. v. Human Relations Comm'n, 93 S.Ct. 2553 (1973).
53. 'Cyberspace And The Law,' supra at pages 72 to 79.
54. Central Hudson Gas. & Electric, 100 S.Ct. 2343.
55. Zauderer, supra.
57. Zauderer, supra at 2274.
58. Central Hudson, supra at 563, n. 5.
59. Zauderer, supra at 2274.
60. 'Cyberspace And The Law,' Chapters 5 and 6.
61. 618 SW2d 176 (1981).
62. 347 Ill 570 (1932).
63. 197 NYS 190 (1922).
64. 485 P2d 219 (1971).
65. 3 NE2d 749 (1936).
66. Zauderer, supra at 2275.
67. Central Hudson, supra at 566.
68. Zauderer, supra.
69. Akron Bar Assn. v. Singleton Sale, 573 NE2d 1249 (Ohio 1990); People v. Divorce Ass. & Pub., 407 NYS2d 142 (1978); Fadia v. Unauthorized Practice Of Law Committee, 830 SW2d 162, (Tex App 1992); Re Webster, 120 BR 111 (Wis. 1990); Florida Bar v. American Legal & Business Forms, Inc., 274 So. 2d 225 (Fla 1973); and Shortz v. Yetter, 38 Pa D & C 291 (1940).
70. Florida Bar, supra and Akron Bar assn., supra.
71. Re Webster, supra.
72. Dunbar v. Schmitt, 251 P2d 915 (Colo 1952); Shortz v. Yetter, supra; Palmer, supra; and Fadia, supra.
73. The Florida Bar v. Carmel, 287 So2d 305 (Fla 1973).
74. Re Webster, supra.
75. Shortz v. Yetter, supra.
76. Oregon State Bar v. Gilchrist, 538 P2d 913; People v. Bennet, 74 P2d 671 (Colo 1937); New York County Lawyers' Assn. v. Dacey, 234 NE2d 459 (NY 1967); and State v. Winder, 348 NYS2d 270 (1973).
77. 89 NJ 74, 444 A2d 1092 (N.J. Sup. Crt. 1982).
78. Disciplinary Rule 2-102(c).
79. Jacoby & Meyers challegend the Advisory Committee's ruling, citing to the First Amendment, the Commerce Clause, the Privileges And Immunities Clause, and the Equal Protection Clause.
80. The Court found that the rule served the important purpose of insuring that the public was not deceived.
81. Friedman v. Rogers, supra.
82. The Court found that the public had the right to have named partners be attorneys licensed in New Jersey who could actually serve as their attorney in the state.
83. 186 NYS 535, aff'd 231 NY 642, reh den., 232 NY 520.
84. 397 So2d 1132 (Fla. 1981).
85. In Re R.M.J., 455 U.S. 191 (1982) at 201; Central Hudson, supra; Bates v. State Bar of Arizona, 433 U.S. 350 (1977); and Virgina Pharmacy, supra.
86. Zauderer, supra at 2282.
88. Id., at 2265.
90. 'Windows Internet Tour Guide,' supra at 176.
91. Id., at 159.
92. For example, see Georgia Disciplinary Standards #5 and #7.
93. Address to Computers, Freedom and Privacy Conference, San Francisco, California, 1991.
94. The U.S. Supreme Court has categorically banned all in person solicitation in Ohralik v. Ohio State Bar Assn, 436 U.S. (1978). Additionally, see Shapero v. Kentucky Bar Ass'n, supra, wherein the Court compares written advertising to face-to-face solicitation.98 S.Ct. 1912, 56 L.Ed.2d 444 (1978).