E-mail & Web Sites Qualify as Advertising in California

by Carole Levitt J.D., M.L.S.

California Attorneys and Paralegals can earn one hour of Self-Study Legal Ethics MCLE credit by submitting this quiz after reading this article.

Most attorneys are familiar with the term “neti-quette,” which is the code of proper behavior online. Basic netiquette applies as much to the legal professional as it does to a lay person, but more specific rules have been crafted to guide the online behavior of attorneys. As early as 1996, many state bar associations began issuing opinions on Internet ethics, often focusing on law firm Web sites. Most of the rules and opinions relating to online communications apply the advertising rules that already exist for print advertising. The State Bar of California has issued only one opinion on Web site ethics. The principles behind the opinion, which was issued in 2001, may be applied to other online forms of communication, including e-mail, URLs and domain names, e-mail addresses, online articles, discussion groups, and chat rooms.

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Formal Opinion No. 2001-155 of the State Bar of California Standing Committee on Professional Responsibility and Conduct deals specifically with the ethical issues attorneys must address when creating and displaying Web sites relating to their law practice. The specific question that COPRAC addressed was, “What aspects of professional responsibility and conduct must an attorney consider when providing an Internet website containing information for the public about her availability for professional employment?”

In a nutshell, the opinion views Web sites as a “communication” under Rule 1-400(A) of the California Rules of Professional Conduct and an “advertisement” under Business and Professions Code Sections 6157 to 6158.3. Consequently, the text, images, and sounds on an attorney’s Web site cannot be false, misleading, or deceptive. Surprisingly, Web sites are not considered to be a solicitation under Rule 1-400(B), even in a situation in which a potential client can e-mail a specific attorney directly from the site. Attorneys are warned, however, that their Web sites may be subject to another jurisdiction’s regulations and may also be considered the unauthorized practice of law in that jurisdiction. To avoid being regulated by another jurisdiction or facing an accusation of unauthorized practice of law, COPRAC suggests that attorneys use a disclaimer on the site stating that they are advertising only in California and that they do not seek to represent someone based solely on that person’s visit to the Web site. The disclaimer should include a statement indicating where the attorney is licensed, what the attorney practices, where the attorney maintains an office, and in which courts the attorney is willing to appear. Even with these precautions, California attorneys who are licensed or have offices in another state may still may be subject to that state’s rules on Web sites. For this reason, a California firm should know if anyone in the office is licensed outside of California. If someone is, the firm should review the rules of the state or states in which the attorney is licensed. Most of the rules will be found in ethics rules relating to attorney advertising, solicitation, and marketing. (For links to the rules of each state, users may go to http://www.abanet.org.)

To augment the one opinion from the State Bar of California, it is helpful to look to the American Bar Association and other state opinions for guidance. For example, the ABA’s Formal Opinion 99-413 holds that sending unencrypted e-mail does not violate the Model Rules of Professional Conduct. Additionally, COPRAC’s opinion No. 2001-155 does not address whether an attorney’s domain name or e-mail address is also a communication or advertising; other states, however, have answered this question in the affirmative. In Arizona, State Bar Opinion 2001-05 holds that while a firm’s domain name does not have to be identical to the firm’s actual name, the domain name must not be false or misleading. Furthermore, a law firm’s domain name cannot state or imply any special competence or unique affiliations unless the claim is factually true (http:/ /www.azbar.org/EthicsOpinions /Data/01-05.pdf). The opinion also indicates that a for-profit law firm domain name should not use the .org suffix or use a domain name that implies that the law firm is affiliated with a particular nonprofit or governmental entity. Thus, a private firm’s request to call itself arizonalawyer.org was rejected.

It is likely that the California bar would agree with these holdings if presented with the question. For example, if a California attorney were to use domain names such as bestresults.com or bestattorney.com, the act may be considered unethical under Section 6157.2 of the Business and Professions Code, which prohibits any guarantee of outcome, or Section 6157.1, which prohibits false or misleading advertising. It is possible that a naive consumer may assume that an attorney with these domain names is promising to be the best or is guaranteeing the best results. Using the domain name bestattorney.com may also violate ABA Model Rule 7.1, which prohibits using superlatives to distinguish one law firm from another without factual proof. A bankruptcy attorney who uses the domain name paynobills.com can expect to face ethical problems if, for example, the domain name misleads a client who is reorganizing instead of declaring outright bankruptcy.

ABA Model Rule 7.1 also prohibits communications that contain “guarantees, warranties, or predictions regarding the result of the representation.” Thus, advertising past client successes on an attorney’s Web site may be deemed unethical because it may indicate to a potential client that he or she can expect similar results. Personal injury attorneys who use their sites to detail past successes or advertise damage awards may therefore want to reconsider.

What type of graphics or images on an attorney’s site could be considered unethical? Placing a picture of a person on your site that implies that the person is either a member of your firm or is an actual client, when in fact the person is not, may be considered mis-leading. This would violate Rule 1-400, Standard 13, unless you label the photograph as a dramatization.

Keep Copies of Web Pages

Many attorneys do not realize that Rule 1- 400(F) (which dictates that attorneys must retain for two years copies or recordings of any communications they have made by written or electronic media) applies to their Web sites and any revisions of their sites. The easiest way for attorneys to comply with this rule is to simply print a copy of each new or revised page that is added to the Web site and keep all the printouts in a chronological file. Attorneys who prefer less paper could save the HTML files that constitute the Web site on a separate disk or in a separate folder on a hard drive. Attorneys may thereafter make a habit of transferring pages as they are created or revised. For those who have not kept copies of each earlier version of their sites, the omission might be rectified with a visit to the Internet Wayback Machine (http://web.archive.org/collections/web.html). The Internet archive, dating back to 1996, recently made its collection of outdated Web pages available to the public. By entering the firm’s URL into the wayback machine’s search box and clicking the Take Me Back button, attorneys can determine if their Web sites are included in the archive. Attorneys who locate the desired site there can print their old pages and keep them in a paper file in order to satisfy Rule 1-400(f).

Since Web sites are considered communications and advertisements, other online communications may be too. Attorneys’ online communications that do not appear on their Web page could pose ethical problems. For example, many attorneys send e-mail invitations for seminars or e-mail newsletters about an area of law. Should they label the e-mail as an advertisement in the subject line? Probably yes, if one is to extrapolate from regular mail to e-mail. With print materials, attorneys are instructed under Standard 5 of Rule 1-400 that “[n]ewsletters, recent legal development advisories, and similar materials…transmitted in an envelope…shall bear the word ‘Advertisement,’ ‘Newsletter’ or words of similar import on the outside thereof.” A cautious attorney would also apply Rule 1-400 to e-communications. A Tennessee attorney was disbarred when he e-mailed an advertisement about the firm’s immigration services to more than 5,000 Internet groups and thousands of e-mail lists without the required words: “This Is an Advertisement” (see http://www.legalethics.com/?p=355). He also violated several other professional responsibility rules in the same matter.

Attorneys should also consider the ethics of their e-mail signature line or tag line (a signature block that includes “King of Torts,” for example, is probably not a good idea). An attorney’s e-mail signature should not include anything that could be interpreted as false, deceptive, or tending to confuse or mislead the public.

Another ethics issue for attorneys online is giving legal advice or soliciting clients in chat rooms or discussion groups. The Florida Bar Standing Committee on Advertising held (http://www.floridabar.org/TFB/TFBETOpin.nsf/ca2dcdaa853ef7b885256728004f87db/2636a9893f38296385256b2f006c8a6b?OpenDocument) that “[a]n attorney may not solicit prospective clients through Internet chat rooms, defined as real time communications between computer users.” Thankfully for attorneys who write for magazines, articles that are published online—with or without the author’s knowledge—are probably protected by the First Amendment. If someone in or out of state reads the article and relies upon the information to his or her detriment, the attorney author may not be liable for either the unauthorized practice of law or malpractice. This ethical area becomes more problematic, however, when attorneys begin expressing their opinions in chat rooms or discussion groups that feature, as most do, two-way communication.

The ethical principles that apply to attorney advertising and communications in older media may serve as a guide for attorneys seeking to avoid ethics difficulties online. Attorneys and firms should keep copies of their Web sites (including every different page) and consider the ethical ramifications of their e-mail content, domain names, e-mail addresses, and discussion group and chat room posts. Finally, it pays to observe common netiquette. The Tennessee attorney, for example, violated it by spamming (i.e., sending out an unsolicited e-mail message to many recipients), thus drawing complaints from offended computer users. One’s manners online can matter just as much as they do in person.