Netethics Note: This paper was prepared by Lori Christman, Keith Porterfield, and Brandon Unterreiner during August, 1995, for a "Law and the Internet" class at Georgia State University College of Law, Atlanta, Georgia, USA, taught by Professor Patrick Wiseman.
In Georgia, "a lawyer may advertise services through public media, such as a telephone directory, newspaper or other periodical, radio or television, or through written communication not involving personal contact".[1] This is limited by O.C.G.A. § 10-1-427 which prohibits false or misleading legal advertising in those media.[2] However what about the Internet? How should web sites, home pages, or discussion group contributions on the Internet be classified and regulated? Currently, the Georgia State Bar is considering the adoption of stricter rules on lawyer advertising in an effort to prevent further harm that bad legal adverting inflicts on the legal profession.[3] At this point, the Georgia Bar is working to draw adequate empirical data in order to justify restrictions on commercial speech.[4] While states are taking a renewed interest in the ethics of legal advertising, the issue of where advertising on the Internet, or "Netvertising", fits in needs to be included.
Upon taking a closer look at the ethics of legal Netvertising, it is clear that advertising on the Internet is actually a broad category which contains numerous individual legal and ethical issues. Some examples of these issues are: Is a web site on the Internet actually advertising? Is the informative nature of most web sites considered to be "giving legal advice"? Does the interactive/informative nature of some web sites constitute an attorney/client relationship? Does the interactive nature of many web sites and discussion groups create an implied waiver of confidentiality? Does the world wide audience of the Internet create jurisdictional problems for lawyers with web sites on the Internet? Is a Georgia lawyer who gives information on a web site, that is read in South Carolina by a South Carolina resident, practicing law without a license? Is a lawyer who practices Federal law able to have a web site immune from the problem of the unauthorized practice of law in other states simply because the lawyer practices federal law and not state law? Will communicating on the Internet disqualify a lawyer and/or the lawyer's firm from representation of other potential litigants?
This paper will discuss these questions, consider various judical and legislative efforts to answer them, and propose rules and statutes that might help states better regulate the growing field of netvertising.
Advertising for legal services was rare and generally prohibited until 1977.[5] It was at that time that the United States Supreme Court applied the protection of commerical speech, which it had only recently declared,[6] to the field of legal advertising in Bates v. State Bar of Arizona.[7] Different varieties of speech are afforded different levels of protection. Advertising which is considered political speech may not be regulated.[8] Commercial speech can be regulated and restricted if the speech is either false, misleading or promotes an illegal activity.[9] However, where commercial speech is not false, misleading nor promoting an illegal activity, government restriction is only allowed under "intermediate scrutiny". Government restriction on commercial speech must be narrowly drawn, and further a substantial state interest.[10]
In Bates the Court held that lawyer advertising was a form of commerical speech and thus could not be completely prohibited. Specifically, the Court held that a state could not prohibit an attorney from listing the fees the attorney charged for routine legal services. Of course, like other commercial speech, the Court made it clear that the full protection of the First Amendment was not given to lawyer advertising. For example, the Court stated that advertising which was false, deceptive, or misleading could be prohibited.[11]
However, in a later discussion of Bates, the Court made clear that a state did not have to treat legal advertising exactly as it does other commercial advertisements.[12] The Court noted: "The public's comparative lack of knowledge, the limited ability of the professions to police themselves, and the absence of any standardization in the 'product' renders advertising for professional services especially susceptible to abuses that the States have a legitimate interest in controlling."[13] The Court stated that regulation of legal advertising is allowable where the "form or method of advertising has in fact been deceptive" and that "claims as to quality or in-person solicitation might be so likely to mislead as to warrant restriction."[14]
The Court confronted the issue of in-person solicitation directly in Ohralik v. Ohio State Bar Association.[15] In that case the attorney went to the hospital to see if a recent accident victim would consider employing him as her lawyer in the matter. The prospective client, who had not yet graduated from high school, was in traction as a result of her injuries at the time. The Court stated that "in-person solicitation of professional employment by a lawyer does not stand on a par with truthful advertising about the availability and terms of routine legal services."[16] The Court went on to uphold the attorney's discipline by the state bar for his actions.
Most recently, the Supreme Court, in Florida Bar v. Went for It, has entered a ruling that allows restrictions on direct-mail legal advertising.[17] The Florida Bar had conducted a survey of Florida public views regarding direct-mail solicitation occurring immediately after accidents. The survey revealed that the Florida Public viewed "...direct-mail solicitations in the immediate wake of accidents as an intrusion on privacy.."[18] As a result of this survey, Florida had adopted a rule prohibiting targeted mail solicitation for 30 days after an accident or disaster.[19] The state claimed that the rule advanced the interest of protecting its citizens from an invasion of privacy. The Supreme Court relied on the findings of the survey as providing a substantial state interest which justified the restriction on the attorney's commercial speech.[20]
Before determining how to apply past court decisions on legal advertising, we must determine whether or not maintaining a web site on the Internet constitutes advertising and thus within the category of commercial speech. If maintaining a web site is not determined to be commercial speech, then the web site is entitled to full First Amendment protection. Accordingly ethical rules regarding legal advertising become a moot point, and lawyers utilizing the Internet may surf on without fear.[21] If an attorney's web site is considered a form of advertising, then it must conform to the lawyer advertising statutes of the state of the attorney and possibly of all states where the web site may be viewed.
Whether or not a lawyer or law firm's web site constitutes advertising is a contested issue. Several lawyers with a web site or home page already posted on the Internet have considered their site to be an informative source and not advertising. This view is based on comparing the informative nature of a web site to the informative nature of a law review article. Like a law review article, a strictly informative web site or home page is generally not an advertisement.[22]
On the other hand, one could argue that even the submission of free information in a web site, home page or discussion contribution, if improperly used, is not only advertising, but in fact, is an illegal, bait and switch type of advertising. In the case of Kentucky Bar Assoc. v. Gangwish, bait and switch scheme was held to be an illegal form of advertising that breached ethical rules prohibiting fraud and dishonesty.[23] In Gangwish, an attorney advertised a service wherein he would assist in finding peoples' parents. However, when people responded to the newspaper ad, he would reply and only then would he reveal himself as a lawyer. In actuality, the service under which the attorney advertised did not exist. Similarly these web sites or home pages that purely give information may not even identify the attorney as the source of the information and thus run into the Gangwish problem. Additionally some web sites or home pages "may create an image of the owner as an expert in a field, that the site owner is a lawyer, thus enhancing his/her image having legal expertise in a specific area."[24] This also might be construed as misleading, unethical, and potentially illegal.
The view held by many Internet lawyers that a web site or home page is merely informative is beginning to change. Web sites and home pages are evolving away from merely being creatures of information. As a result, for the purposes of analogyzing the existing laws and restrictions on current advertising mediums like print, radio, television and how they apply to netvertising, the content of web sites, home pages and discussion contributions on the Internet must be examined carefully. The types of content found on web sites and home pages fall on a continuum. At one end of the continuum there exist web sites and home pages that are exclusively comprised of free information. However on the other end of the continuum, there exits the purest form of netvertising, the straight forward ad for legal services.
The problem with netvertising is that as one moves along the continuum, adding things to web sites and home pages such as a lawyer or firm's name, specialties and inducements to the reader, the sites begin to look more and more like the legal advertising with which people are already familiar. According to Zauderer v. Office of Disciplinary Counsel,[25] legal solicitation for profit which includes free beneficial information is advertising.[26] Under the Zauderer reasoning, informative web sites which contain any kind of solicitation are advertising.
Does the web site become advertising based on the information included on the lawyer's home page? For instance, if the attorney was merely attempting to provide free legal information, and did not list his or her name or even the firm's name, would it be advertising? By adding the firm name, real address, and e-mail address, does the "free information" turn into legal advertising? The courts have not yet addressed these issues.
The courts have addressed this issue, however, in relation to other forms of "free" information lawyers have dispersed. For example, the United States District Court for the Eastern District of Texas found that one lawyer's advertisement was a form of noncommercial speech and could not be regulated.[27]
In that case, a lawyer had placed an advertisement in a newspaper discussing the current system of electing state judges. He proposed a new rule regarding such elections. The court found that this advertisement did not propose a commercial transaction.[28] The Chief Disciplinary Counsel for the Texas State Bar had previously found that it was commercial speech, and, therefore, could be regulated because the advertisement was published with the hopes that subscribers of the newspaper would read it and hire the attorney.[29] The attorney admitted that he hoped to generate business by publishing it, yet the court found that the advertisement itself could not be said to propose a commercial transaction.[30] The same could be said for attorneys who provide free information on the Internet. Their main purpose may be noncommercial, but they may have the hopes of obtaining clients also.
Is it the desire to make money which turns noncommercial speech into regulatable commercial speech? In Texans Against Censorship, et al., the court found that it is only when the message conveyed by the communication suggests to the public, or a specific individual, that the lawyer's professional services are available for hire that the communication must meet the ethical rules of the state.[31] It would seem that this statement suggests that any time an attorney includes his firm name or address, that he may be suggesting that he is available for hire. How can attorneys avoid this pitfall? Disclaimers may help, but nothing seems concrete at this point.
Another issue to consider is whether or not the informative part of an attorney's home page, and the section which lists the attorney's e-mail address, guest book, and qualifications may be severable. If so, the first part would be appear to be free from regulation, while the second part may have to adhere to lawyer advertising standards.
The Supreme Court has previously held that where noncommercial and commercial speech are "inextricably intertwined", they will not apply one test to one phrase and one test to another phrase, so they apply the test for fully protected expression.[32] In Texans Against Censorship, et al., the court found that a newsletter an attorney disseminated with information regarding public safety, but with a statement on the back asking the readers to tell their friends who have been injured in accidents to contact the law firm, was not "inextricably intertwined" commercial and noncommercial speech.[33] The court stated that there was nothing to prevent the attorney from distributing the noncommercial information contained in the newsletters separately from the commercial information.[34]
This is not so easy on a home page. What if an attorney were to establish two separate home pages, one with general legal information without their name, etc., and one which gave information publicizing the law firm, listing fees, etc. If the two pages linked together, it could be said that the line between the two forms of speech was blurred and could be misleading to the public.
An example of an attorney's web site which appears to be a non-commercial, ethical use of the Internet is attorney Jeffrey R. Kuester's home page. This page is designed to provide research sources for technology lawyers, law students, businesses, etc. He has provided various hyperlinks to places on the Internet where legal information can be obtained. There is no "blatant" advertising of his expertise, his services, fees, etc.
Could this be deemed advertising, however? Some courts may determine that it is because laypersons have access to this information. Because the layperson may have read the information Mr. Kuester has made available, he or she may consider Mr. Kuester an expert in this area of the law and, because of his access to this information, may contact him for legal representation. For another example, see http://www.digimark.net/radiation.law/ and http://www.benedict.com/fund.htm#fund. The "radiation" page is slightly more advertising oriented in that it does state that the attorney is available to represent people in areas in which he is experienced and tells people how to contact him. The second URL is to a site with information about copyright law. It has only a link to the developer's resume (http://www.benedict.com/resume.htm#resume). It is not clear even from the resume whether he is seeking clients. There is also a similar type of site for patent law (http://www.ladas.com/index.html).
On the other hand the following sites clearly qualify as advertising. The site of the Goodman law firm includes fee information and has an internal link from the beginning of the document to the paragraph that explains how to engage the services of the law firm. The site of Carol McGowan gives a list of six reasons people need a lawyer, followed by her name, address, and phone number. Also see the section of the Seamless web site which explains their offering and then invites you to form a business relationship with the firm.
In conclusion, it appears that a home page that only provides accurate general information about the law is not advertising or commercial speech, and is thus not subject to regulation. However, if the general information is followed by an invitation to employ the attorney, the entire page will be considered an advertisement and will be thus subject to regulation. An attorney may also be subject to discipline for fraudulent behavior if he initially hides his identity as the author of the page and then uses it to gain new clients.
The flexibility of the Internet, and the World Wide Web in particular, forces a reevaluation of ethical restrictions. Lawyers are not limited to the equivalent of a newspaper advertisement. Lawyers also indirectly "advertise" by displaying their expertise in discussion groups and chat rooms. The flexibility of the medium brings up new issues.
One evolving issue is whether or not an attorney who offers information on the Internet is "giving legal advice", thereby opening himself up to malpractice claims, the attorney-client privilege, confidentiality and other issues relating to general attorney-client relationships. For instance, see the "Seamless Web" site.. At this site, anyone can get free advice on wills, trusts and estate planning. There is a disclaimer that the advice only pertains to California law, but it is not located at the beginning of the information. It's possible that laypersons from other states may follow this advice in designing their wills, but may not have noticed the state law limitation disclaimer. See also http://starbase.ingress.com/tsw/alawyer/criminal.html for a page concerning criminal law. Would the attorneys who provided this information be liable if the layperson's will were found invalid in their state? This is a frightening and very real concern for many lawyers. It is unknown whether or not malpractice insurance carriers have addressed theses issues. The prudent attorney should carefully read the exclusions listed in their insurance policy to be sure such communications are not excluded.
Are disclaimers the solution? Many attorneys use a version of the following disclaimer on their web sites:
"Please understand that the information referenced above is provided as only general information which may or may not reflect the most current legal developments, thus the information is not provided in the course of the attorney-client relationship and is not intended to constitute legal advice or substitute for obtaining legal advice from a licensed attorney."[35]
Would a layperson understand this to be telling them not to rely on the information? Would a court find that this notice was sufficient? The average attorney would certainly hope so, but without guidance from the courts, the answers are unknown.
Also note the part of the disclaimer recited above which states that the information contained in the web site may or may not reflect the most current legal developments. If a person did not know the law had changed after relying to their detriment, could the attorney be liable? Must attorneys who provide information carry the burden of continually searching the case law and legal developments to update their links in order to avoid liability?
Another concern "net" lawyers have regarding their use of the Internet is e-mail. Many attorneys who have established web sites on the Internet provide their e-mail address for comments. See http://www.bsmwl.com/. If a person sends the attorney a question regarding a particular area of the law and the attorney responds, has the attorney-client relationship been created? If so, have the client and the attorney impliedly waived their right to confidentiality by communication over the Internet where access to such information by others is relatively easy? Does the attorney have the duty to warn the person at the outset that they may give up their right to confidentiality by sending any information to the attorney via e-mail? This is an especially hot topic for attorneys in discussion groups who receive inquiries from laypersons. Does sending a private reply rather than to the group save any privilege?
Another question attorneys have also relates to discussion group contact with other attorneys. Take this scenario for instance: Attorney A contacts attorney B requesting advice in regards to attorney A's client. The client's name is not disclosed. Attorney B gives advice. Is attorney B later foreclosed from representing or litigating against attorney A's client in a separate matter? This is a big concern for many attorneys. If attorney B is foreclosed, this tactic could be used by sly attorneys with large corporate clients. Do we want to dissuade attorneys from communicating with each other in discussion groups? This would seem counter to the spirit of cooperation and camaraderie of the legal profession.
Most current advertising mediums such as newspaper, radio and television have a limited jurisdiction or limited receiving audience of the advertisement. In comparison, the Internet has no such jurisdictional boundaries. Once a lawyer or law firm posts an advertisement on the Internet in the form of a web site, home page or discussion contribution, the netvertisement is there to solicit clients from all over the world. The Internet has no station range or circulation limitation and this possess one of the biggest ethical problems with advertising on the Internet. For example, a Georgia lawyer might place an advertisement on a local television station where the broadcast range of that advertisement will not go outside of Georgia and thus not outside the area in which the lawyer is licensed to practice law. However, a Georgia lawyer placing a netvertisement on the Internet will have an advertisement that may be read around the world or at the very least, outside the jurisdiction in which the lawyer is licensed to practice law. Not only is this misleading, but it is also potentially the unauthorized practice of law. This unethical practice of law issue does arise in the context of traditional advertising, but its effects on netvertising are significantly more prevalent.
Practicing law without a license is clearly unethical. Already in place for the existing mediums of advertisement, there exist ethical restrictions on legal advertising out of the geographic area in which a lawyer or law firm is licensed to practice law.[36] There is also relevant case law on the issue. For example, in the case of Re Schwartz, a lawyer who was sending cards and letterhead that implied that he was authorized to practice law in states where he was not, was disciplined for making intentional misrepresentations about where he could practice law.[37] Similarly, in the case of The Florida Bar v. Kaiser, a lawyer was convicted of practicing law without a license when his interstate law firm made advertisements that he was able to practice law in Florida when in fact he was not.[38] "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".[39] For example, in Georgia and according to Georgia Bar Standard 6(b) and (c), a written communication to a prospective client must be marked "advertisement" on the envelope of the advertisement and on each and every page. Also, a copy of any written communication must be kept for four years. However Georgia's ethical rules may not be the same nor comparable to Florida and South Carolina's ethical rules. As a result, lawyers run the risk of violating other state ethical codes when they netvertise on the Internet. So, as the debate unfolds, the issue is whether these strict restrictions or requirements placed on the traditional legal advertising mediums should be applied to advertising on the Internet? And if so how?
Many lawyers on the Internet state that they practice federal law, therefore, they are immune from such state law concerns. Is such a belief truly valid? Because one's practice focuses on civil rights and constitutional issues, the attorney must still be licensed to practice in their state. Simply because the information is provided over the Internet would not seem to convert their state license into a country-wide license. Some guidance from the courts would be helpful.
In 1994, the California Legislature passed a bill which specifically addressed, in part, advertising by lawyers via electronic media.[40] The act specifically takes into account networks, defining electronic medium as "television, radio, or computer network."
The Act begins with "legislative findings". The legislature found that lawyer advertising is commercial speech which is subject to regulation, particularly to protect the public from false or misleading information, and that advertising via electronic media is "uniquely pervasive and intrusive."[41] On the other hand the legislature also found that the public was in need of legal information including the type often found in legal advertising.
The Act adds section 6158 to the business and professional code which requires that the message of an advertisement via electronic media, when taken as a whole, "may not be false, misleading or deceptive, and . . . must be factually substantiated."[42] To assist in applying this standard to multi-media presentations now possible, the section states that "The message means the effect in combination of the spoken word, sound, background, action, symbols, visual image, or any other technique employed . . . ."[43] Although this prohibition fully covers the area of electronic multimedia advertising, it is somewhat vague. What types of presentations would be considered misleading? Would a message stating that a firm won twelve personal injury claims for over $100,000 each be misleading even if it were true?
The Act provides some assistance to this type of question. It establishes rebuttable presumptions that certain messages are false, misleading, or deceptive. The classes so considered are messages that either: (1) provide the outcome of a case without an adequate factual background,[44] (2) depict accident or injury scenes,[45] and (3) refer to money received by a client in a case,[46] or (4) refer to a potential recovery for a prospective client.[47] To be included in areas (3) or (4) the references do not have to be to specific dollar amounts. The Act states that references to "a specific dollar amount, characterization of a sum of money, monetary symbols, or the implication of wealth."[48]
In addition to requiring that electronic advertising not be false or misleading, California also requires that certain disclosure be made, while noting that such disclosure does not necessarily erase the presumptions of the false or misleading character of information of the type discussed above. If an advertisement refers to the outcome of a case, the Act requires that the advertisement either disclose sufficient facts to justify the result or state that "the result portrayed in the advertisement was dependent on the facts of that case, and that the results will differ if based on different facts."[49] (The Alexander Law Firm is an example of a California firm that has put examples of cases won on one of its pages. One synopsis states: "Trial attorney for plaintiff in Aiello v. Bank of America Realty, for injuries suffered by a 35-year- old operating engineer. Before trial plaintiff offered to settle his claim for $45,000. The defendant responded by offering $7,500. The final judgment plus interest paid to Mr. Aiello after trial totaled $277,871." )
The Act also establishes a "safe harbor" for electronic advertisement.[50] The Act provides that the provision of information such as specialization, fees for routine services, articles that the attorney has published, and foreign language ability will be presumed to comply with the statute. Along with this substantive safe harbor, California also provides a procedural safe harbor. The law provides that if any person complains of an advertisement they must serve a copy of the complaint on the advertiser, and that if the advertisement is withdrawn within nine days, there will be no further action on the complaint.[51] In practice however, the advertiser has much longer to withdraw the material. If the advertiser ignores the complaint, he has seven days to produce a copy of the advertisement and the Bar Association has up to twenty-eight days to review the complaint.[52] If the Bar determines that "substantial evidence of a violation exists", the lawyer still has an additional three days to withdraw the advertisement and still be safeguarded from further action.[53] In practice therefore, an attorney has 31 days from the date of the initial complaint to safely withdraw the advertisement.
If an attorney does not take advantage of these safe harbors, he could be subject to a penalty of up to $5,000 per broadcast that violates the Act.[54] This money is to be paid into a "'Client Security Fund' maintained by the State Bar."[55] The Act makes it clear that this remedy is in addition to any other cause of action that might exist.[56] The Act also requires that a copy of all advertisements be kept for one year.
Iowa has also made some effort toward addressing the issue of electronic advertising. Iowa's approach takes the form of Supreme Court Rules, as opposed to a statute.[57] Iowa provides different restrictions on lawyer advertising dependent on the media used.[58] Some of the areas included are in-person, telephone directory, general print (newspapers, and periodicals etc.), and electronic.[59]
For electronic media the rules require that information may be "articulated only by a single nondramatic voice, not that of the lawyer, and with no other background sound." The rules also provide that for television advertisements "no visual display shall be allowed except that allowed in print as articulated by the announcer."[60] In addition, the rules provide a general restriction that advertising not appeal to the "emotions, prejudices, likes, or dislikes of a person, or which contains any claim that is not verifiable."[61]
The constitutionality of these rules was addressed in Committee on Professional Ethics and Conduct of the Iowa State Bar v. Humphrey.[62] The defendant in that action argued that the rules were unconstitutional because they infringed on his First and Fourteenth Amendment rights.[63] The Iowa Supreme Court upheld the rules, stating that the United States Supreme Court had made clear that regulation is "permissible where the record indicates that a particular form or method of advertising has in fact been deceptive."[64] The Iowa court also noted that the Supreme Court had previously recognized the "special problems" of television advertising,[65] and concluded that a state "can regulate advertisements which . . . experience has proven to be subject to abuse."[66]
The defendant appealed the decision, and while the appeal was pending the Supreme Court handed down their decision in Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio. The Supreme Court subsequently vacated the initial judgment and remanded the case for consideration in light of Zauderer. On remand the court reaffirmed its position that the Rules were constitutional.[67] Zauderer had struck down Ohio's prohibition on the use of illustrations in lawyer advertisements. The court distinguished Zauderer by noting that it concerned print advertising, and that the courts language repeatedly referred to it as such.[68]
The court inserted language that virtually invited overrule if their interpretation of Zauderer was incorrect. Referring to the statements by the Supreme Court to the effect that electronic media presented "special problems" the court stated: "We took this exclusion seriously and at face value because we emphatically agree that "special problems" do exist in the field of electronic advertising. It was because of them that we, and those who helped us, went to considerable effort to consider and draft our electronic advertising rule. If we misapprehended the language just quoted, if there are in fact no special problems in this area which warrant a special rule, then we have squandered those efforts."[69] The defendants again appealed the decision, but it was refused by the Supreme Court for lack of a federal question. A subsequent request for rehearing was also denied.[70]
Although these rules are useful efforts at more effective regulation of lawyer advertising via electronic media, they have major shortcomings. The primary one is that they establish a category of "electronic media" that purportedly includes computer networks, but the provisions aimed at the category were clearly developed with an eye toward radio and television advertising.
Netvertising is fundamentally different from television and radio advertising. One of the characteristics of broadcast advertising that makes it vulnerable to regulation is the almost passive nature of the receipt of information via the media. A person turns on "Gilligan's Island" and tucked in between scenes is an advertisement for a personal injury lawyer. The person does not seek this information, it is simply broadcast at him. The same is not true for netvertising. People browse web sites looking for information and entertainment. They actively select locations. Because of this distinction between netvertising and television advertising, much of the rationale supporting the regulation of television broadcasting is not available.
On the other hand Netvertising has two characteristics which make it more dangerous than television advertising: it's high information capacity, and it's worldwide character. The economics of Netvertising enable it to provide much more information than would be feasible via television or radio. One law firm has summaries of over twenty cases that it has won (http://tsw.ingress.com/tsw/talf/cases.html). Their home page is actually different pages of information. This capacity brings up issues that aren't reached with respect to television and radio.
The global nature of Netvertising makes some rules obsolete. For instance the Iowa rules state that electronic advertisements only be made, to the extent possible, "in the geographic area in which the lawyer maintains offices."[71] This is not really practical in the case of Netvertising.
Even within the area of the Internet there are different methods of communication. Conversation in an IRC channel is much different than a home page or a discussion list. While a strong analogy can be drawn between an IRC channel exchange and a telephone conversation, on the other hand,a home page is a unique form of communication. Because of these differences and similarities revisions need to be made to current ethical restrictions on advertising and practicing law.
It is already illegal to practice law in Georgia without a license.[72] Practicing law already includes the provision of legal advice, without reference to whether it has been paid for. This should be extended to the provision of legal advice over the net as follows.
A person furnishes legal advice within the meaning of O.C.G.A. § 15-19-51 if the person provides legal information to a resident of Georgia about an issue generally covered at least in part by state law unless it is clearly stated that the information may not apply to Georgia, and no course of action is recommended other than contacting a Georgia licensed attorney. It is the responsibility of the person giving advice to ascertain the residence of the person receiving the advice. The physical location of either person at the time the advice is given is immaterial.
Georgia should make it illegal for persons who are not competent in Georgia law to advertise legal services to Georgia residents. Georgia has a legitimate state interest in making sure that its citizens are not given incorrect legal advice.
It shall be unlawful for an individual or corporation to advertise the availability of legal services in the state unless the individual or corporation is qualified to perform the service advertised.
An individual or corporation advertises within the state when he places advertising material where he reasonably expects people from the state of Georgia to access it without a clear and conspicuous disclosure that the service is not available to those whose legal issues pertain to the state of Georgia. A statement to the effect that the service is only available to persons whose legal issues pertain to the States of A, B, and C (not including Georgia) will suffice. All advertising material must be clearly labeled as such at the beginning and end of the document (electronic or otherwise).
An individual is qualified to perform a particular legal service if the individual is licensed to practice law in Georgia, or the advertised service concerns solely issues of federal law, will not foreseeably involve appearance in a federal or state court within Georgia, and the attorney conducts no more than 25% of his business with Georgia clients, and the individual is licensed to practice in another state.
A corporation is qualified to perform an advertised legal service if an employee of the corporation is licensed to practice law in Georgia, and that employee will be responsible for performing or directly supervising the provision of the advertised service, or the advertised service concerns solely issues of federal law, and will not foreseeably involve appearance in a federal or state court within Georgia, and the corporation conducts no more than 25% of his business with Georgia clients, and the individual perofrming the work is licensed to practice law in another state.
Advertising material is any combination of sounds, images, and text which could be reasonably expected to increase the likelihood that the person reading the material would select the attorney providing the material as their attorney.
There is a rebuttable presumption that material which gives only general information about the law, and which is scholarly in tone, is not advertising material, even if the material gives the author's name and electronic or postal address and phone number. Such material should be accompanied by a disclaimer placed no further down than the third screen of the web site. Such disclaimer should state that the information is only being provided for general use and is not being provided in the nature of the attorney-client relationship. It should also state that the information may not include current legal developments and that the information is not intended to substitute for legal advice by a licensed attorney.
There is a rebuttable presumption that information is advertising material where the information gives any indication that the attorney is open to establishing a attorney client relationship or to discussing specific facts, or where an expedited way of contacting the attorney is provided. This includes a situation where a person is invited to register their "visit" to a home page if the attorney ever sends additional material to those registering which would be classified as advertising material under this paragraph.
It is already illegal for a lawyer to include false or misleading material in advertisements.[73] The use of electronic media such as the internet increases the amount of material that may be disseminated and thus requires that more specific direction as to what types of material may be provided be given.
Current restrictions on the inclusion of information on specific cases provide too much opportunity for abuse. Individual cases are so unique that there use in advertising is inherently misleading. For example, consider the section above regarding the Alexander Law Firm and California's restrictions. How is one to know whether the synopsis complies with the restrictions? Note that there are no "losing" cases included. Unless the firm has never lost a case, isn't this in itself inherently misleading?
The prohibition of false and misleading material should be expanded to include the following rebuttable presumptions (taken partially from California law) regarding material that is or is not misleading:
A. There exists a rebuttable presumption that the following information is inherently misleading:
1) The inclusion of information of specific cases won.
2) The inclusion of amounts recovered for any specific case or for any type of case. This includes any indication of the average amount recovered for a type of claim, either in specific numbers or in multiples of another number such as "six times medical damages."
3) Any statements by the attorney or anyone else regarding the level of skill the attorney or firm advertising has in relation to other attorneys.
4) Any characterization of fees except for the specific charges for routine services, or the firm's hourly rates.
B. There exists a rebuttable presumption that the following information is not misleading:
1) Information regarding professional degrees earned.
2) Number of cases handled in a general area of law.
3) Number of cases brought to trial in a general area of law.
4) Scholarly articles written.
5) General, accurate, and reasonably complete statements of the law.
Direct solicitation of clients is inherently subject to abuse. The restrictions should also be applied to real time electronic conversation.
Direct solicitation of clients either in person, via telephone, or through real time electronic exchange is prohibited. Direct solicitation includes the provision of legal advice if the attorney subsequently establishes an attorney-client relationship with the individual. This paragraph does not apply if the discussion of legal issues is prompted by the prospective client.
The rule which requires attorneys to keep copies for a number of years (four years in Georgia[74]) of all advertisements as they were disseminated is unworkable as to web sites. There is no way to take a "snapshot", if you will, of a web site as it is viewed by persons who use the Internet. What is able to be saved for future reference is the attorney's "html" file which generates the web site. Also, web sites are changed very frequently as new information becomes available. Generally information is not deleted from the site; instead it is added to the site. The current rule should be amended to require attorneys to save a copy of their web site every six months, or prior to the deletion of any material, or prior to a substantial change to the site. The computer file copy could then be kept for the appropriate number of years.
The Internet is a new a complicated medium which creates an entirely new way to communicate and to conduct business. Although there are many issues pertaining to Netvertising that have not been addressed, bar associations and lawyers alike are in need of guidance. Rapid steps should be taken in order to develop guidelines and rules so that both lawyers and laypeople are protected.
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[1] Standard 6(a) of Georgia Code of Ethical Conduct.
[2] O.C.G.A. § 10-1-427 (1994).
[3] Ann Woolner, Ga. Bar Getting Ammo to Get Touch on Ads, Fulton County Daily Report, June 26, 1995, at 1.
[4] Id.
[5] Committee on Professional Ethics and Conduct of the Iowa State Bar v. Humphrey. 355 N.W.2D 565, 567 (1985), vacated by 472 U.S. 1004 , on remand, 377 N.W.2d 643, appeal dismissed by 475 U.S. 1114, rehearing denied by 476 U.S. 1165.
[6] Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. 748 (1976).
[7] Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691 (1977).
[8] Pittsburgh Press Co. v. Pittsburgh Comm. on Human Relations et al., 413 U.S. 376, 93 S.Ct. 24453 (1973).
[9] Friedmand v. Rogers, 440 U.S. 1, 99 S.Ct. 887 (1979).
[10] Central Hudson Gas & Electric v. Public Service Comm'n of NY, 447 U.S. 557, 100 S.Ct. 2343 (1980).
[11] Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691 (1977)..
[12] In re R.M.J. 455 U.S. 191, 199-202 (1982).
[13] Id.
[14] Id.
[15] Ohralik v. Ohio State Bar Association, 436 U.S. 477 (1978).
[16] Id.
[17] 115 S.Ct. 2371 (1995). "http://www.law.cornell.edu/supct/supct.june.1995.html" or "ftp://ftp.cwru.edu/hermes/ascii/94-226.ZO.filt"
[18] Florida Bar v. Went For It, 115 S.Ct. 2371 (1995)
[19] Florida Rule 4-7.4(b)(1).
[20] Florida Bar v. Went For It, 115 S.Ct. 2371 (1995).
[21] Peel v. Attorney Reg. & Disciplinary Comm'n, 496 U.S. 91, 97 (1990).
[22] T.K. Read, Pushing the Advertising Envelope: Building Bill Boards in the Sky along the Information Superhighways, Western State College of Law Journal (To be published Fall 1995)
[23] Kentucky Bar Assoc. v. Gangwish, 618 S.W.2d 176 (1981)
[24] T.K. Read, Pushing the Advertising Envelope: Building Bill Boards in the Sky along the Information Superhighways, Western State College of Law Journal (To be published Fall 1995).
[25] Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626,639, 105 S.Ct. 2265, 2274-75 (1985).
[26] T.K. Read, Pushing the Advertising Envelope: Building Bill Boards in the Sky along the Information Superhighways, Western State College of Law Journal (To be published Fall 1995)
[27] Texans Against Censorship, Inc. v. State Bar of Texas, 888 F.Supp. 1328 (E.D. Tx 1995).
[28], Id., at 1343.
[29] Id.
[30] Id., at 1344.
[31] Id.
[32] Riley v. Nat'l Fed. of the Blind of North Carolina, 487 U.S. 781, 796 (1988).
[33] Texans Against Censorship, Inc. v. State Bar of Texas, at 1344-47.
[34] Id.
[35] http://www.kuesterlaw.com
[36] Model Code of Professional Responsibility, Ethical Cannon #2, DR 2-101(B)(4).
[37] In re Schwartz, 195 App.Div. 194, 186 NYS 535 (1921).
[38] The Florida Bar v. Kaiser, 397 So.2d 1132 (Fla. 1981)
[39] T.K. Read, Pushing the Advertising Envelope: Building Bill Boards in the Sky along the Information Superhighways, Western State College of Law Journal (To be published Fall 1995)
[40] 1994 CA Legis. 711.
[41] Id.
[42] CA Bus & Prof. s 6158, (1994).
[43] Id.
[44] Id. at § 6158.1(a).
[45] Id. at § 6158.1(b).
[46] Id. at § 6158.1(c).
[47] Id.
[48] Id.
[49] Id. at § 6158.3
[50] Id. at § 6158.2
[51] Id. at § 6158.4(a).
[52] Id.
[53] Id. at § 6158.4(b)(1).
[54] Id. at § 6158.4(e).
[55] Id. at § 6158.4(h).
[56] Id. at § 6158.4(k).
[57] See Iowa Ct. R. DR-201.
[58] See Id. at 201(B).
[59] Id. at 201(B)(5).
[60] Id.
[61] Id. at 201(A).
[62] 355 N.W.2D 565, vacated by 472 U.S. 1004 , on remand, 377 N.W.2d 643, appeal dismissed by 475 U.S. 1114 , , rehearing denied by 476 U.S. 1165.
[63] Id. at 566-67.
[64] Id. at 568.
[65] Id. at 569.
[66] Id. at 570.
[67] Committee on Professional Ethics and Conduct of the Iowa State Bar v. Humphrey377 N.W.2d 643, 644 appeal dismissed by 475 U.S. 1114 , , rehearing denied by 476 U.S. 1165
[68] Id. at 645.
[69] Id.
[70] See Review of Selected 1994 California Legislation, 26 Pac. L.J. 281 (1994).
[71] Iowa Ct. R. DR-201(B)(5).
[72] O.C.G.A. § 15-19-51(a).
[73] O.C.G.A. § 10-1-427.
[74] Standard 6(c), State Bar of Georgia Handbook, 1994-1995.