By Jordan Rappaport

Attorney Advertising on the Internet


This paper will examine the regulation of attorney advertising over the internet1. First, it will explain why attorney advertising over the internet has become an important issue in 1996. Second, it will look at how attorney advertising became protected commercial speech and the amount of protection current Supreme Court cases provide. Then it will examine the constitutionality and practicality of recent Florida ethics opinions regarding attorney advertising on the internet and the current level of protection afforded such advertising.

Why Internet Advertising has Become Important

An article in the March 25, 1996 issue of the National Law Journal states that more than 85 percent of the 200 largest U.S. law firms had World Wide Web (Web)2 pages or that they would have them in place by mid-19963. In late 1994, only 5 lawfirms were present on the Web and by March 1995, there were504. Web growth as a whole is growing at 341,000 percent with more and more advertisers, legal or otherwise, garnering for positions on the Web5. This sudden, massive increase in the popularity and visibility of the internet has led many lawyers to rethink their advertising methods. Much like lemmings jumping off a bridge, lawyers are following their advertising counterparts in the business world and discovering the abundant commercial uses of the internet ranging from interactive Web sites6 to direct e-mail7 solicitation. Attorney advertising has taken a giant leap into the deep end of the internet pool without taking adequate swimming lessons.

This jump into uncharted waters provokes not just new opportunities but new problems as well. In April 1993, Laurence Canter and Martha Siegel of the Phoenix law firm Canter & Siegel e-mailed thousands of newsgroups plugging their immigration practice in hopes of gaining new clients.8 Such a direct mailing to thousands of newsgroups9 and possibly millions of people who read those newsgroups, would have cost an enormous amount of money, but it can be done for free on the internet using a process called "spamming" in which one message is sent to every newsgroup in existence. This ad spawned a backlash of such epic proportions that the firm's internet provider received over 30,000 responses and actually cancelled Canter & Siegel's internet account. Many of those response were "flames".10 Despite such vigorous protests from thousands of internet citizens, Canter & Siegel claim to have gained clients from their advertising. Whether or not Canter & Siegel are to be believed, their actions clearly demonstrate why regulation of attorney advertising over the internet has fast become a hot issue.

One of the ways advertising on the internet has been regulated is through a set of rules called netiquette. Netiquette is " a set of standards and practices that guide 'proper' behavior of participants on the internet."11 Basically this meant that if most of the people reading a posting to a newsgroup or accessing a Web site didn't like it or thought it didn't belong on the internet, they would flame the author or sponsor of the advertisement, and play jokes on that person, like sending pizzas to their house, if they could find the address, or maybe just stuffing their e-mail box so full with junk e-mail that nothing else could get in. This system of self-regulation appears to be decreasing, both because of the increasing commercial aspect of the internet and the fact that many of the people with access to the internet simply are no longer offended by such advertising. That is not to say that many people who have been using the internet for a long time are now no longer upset that the internet has become more commercial; the internet has, however, been inundated with so many new users that those people protesting such commercialism are no longer in the majority.12

Advertising has increasingly become a part of the internet landscape. As attorney advertising has increased, so too has the call to regulate it. Unsurprisingly, the people crying the loudest for such regulation are the attorneys themselves, as represented by their state bar associations. Attorneys have always been the most critical of themselves and have often imposed more stringent restrictions than any the government has ever imposed or reccommended..

Attorney advertising, regardless of its form, has a long and winding history. From a near complete bar on advertising to current model rules and state bar regulations, lawyers have always tried to regulate themselves. Attorneys are highly conscious of how the public perceives them. William E. Hornsby, Jr. and Kurt Schimmel write "the legal profession is acutely sensitive to its own public image. Historically, that image has been unacceptably low. The public has most frequently cited corruption, greed and selfishness as factors contributing to this poor image. The profession, on the other hand, tends to blame the commercialization of the practice of law."13 The recent surge of high profile legal dramas, from the Menendez Brothers to the O.J. Simpson trial, combined with the ever- present lawyer advertisements on television, have only increased the legal professions scrutiny of itself and its regulations regarding advertising.

The Progression of Attorney Advertising

Attorney advertising has traditionally been regulated by state bar associations. In the later part of the nineteenth- century, some states allowed advertising but in 1908 the American Bar Association (ABA) issued the first uniform ethics code which forbade attorney advertising.14 This ban on advertising ended with the Supreme Court case Bates v. State of Arizona 15 which opened the doors for First Amendment protection of attorney advertising. How much protection such advertising receives still is an unsettled issue as the most recent case Florida Bar v. Went For It, Inc. 16 demonstrated in 1995. How much protection legal advertising will receive in cyberspace 17 is an even more unsettled issue, especially since the internet is a new technology and all advertising on it, including attorney advertising, is still in its infancy.

It is important to note that there is not a large amount of Supreme Court cases dealing with the issue of attorney advertising. The Supreme Court many times examines previously decided cases on other forms of advertising besides legal advertising in order to help reach a decision. The few legal advertising cases that have gone to the Supreme Court are important to the current view because the Court will apply different internet resources more readily to cases that most resemble them, not necessarily the most recent case decided. As the structure of the Court changes with the addition of new judges, some of the older legal advertising cases may begin to be over-turned or, at the least, strongly limited. The entire line of legal advertising cases thus retains its importance in the current view of state bar regulations of the internet.

Commercial speech was held to be protected under the First Amendment of the Constitution in the 1976 case Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc.18 The Court held that "speech does not lose that [First Amendment] protection because it is paid for, because it solicits money or because it proceeds from a profit motive."19 The Court also rejected paternalistic regulations of commercial speech but clearly stated that the government could constitutionally prohibit misleading or deceptive commercial speech.

It was no surprise a year later when the Supreme Court recognized First Amendment protection for attorney advertising in Bates v. State Bar of Arizona. Justice Blackmun, delivering the opinion of the Court, held that the State Bar Association of Arizona could not prevent lawyers from advertising for "routine legal services" because such advertising "helped to inform the public and allocate resources in our free enterprise system."20 The particular advertisement in question was a newspaper advertisement offering "legal services at very reasonable fees" while also listing a fee schedule.21 The Court did not, however, give legal advertising free reign. Bates continued with the limitations first brought to light in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council by stating that a state may still prohibit advertising that is false, misleading, or deceptive. It also held that the state may place time, place, and manner restrictions upon such advertising.

While Bates v. State Bar of Arizona dealt with a newspaper advertisement, it explicitly excluded advertising in the form of in-person solicitation. Two cases decided a year later dealt with the issue of in-person solicitation. In re Primus 22 and Ohralik v. Ohio State Bar Association 23 were decided the same day and held that some forms of in person solicitation of clients may be banned by state bar associations. The two cases, while decided together, were nothing like one another.

In In re Primus, a South Carolina lawyer wrote a letter to, and spoke to, a group of women who were being illegally sterilized as a condition of receiving Medicaid benefits. The letter offered the free services of the ACLU, for whom Primus worked, in filing a lawsuit. The South Carolina Supreme Court held that Primus violated anti-solicitation rules. The Supreme Court reversed that decision because her letter and the ACLU litigation were actions undertaken to "express personal political beliefs and to advance the civil-liberties objectives of the ACLU, rather than to derive financial gain."24 The Court concluded that the conduct of Primus indicated her interest in both free "political expression" and political objectives and was protected as core First Amendment values. The fact that Primus was not trying to solicit clients for financial gain aided the Court in finding First Amendment protection. The Court did, however, reiterate that states may reasonably regulate time, place, and manner of in-person solicitation and may prohibit such solicitations if they are misleading, overbearing, deceptive or exerting improper influence.25

Ohralik v. Ohio State Bar Association, in contrast to In re Primus, was clearly a case of in-personal solicitation for personal gain; a classic example of ambulance chasing. Ohralik solicited two accident victims, one in a hospital recovering from injuries and the other at home. He asked the accident victims to let him represent them for a contingent fee. The Supreme Court of Ohio suspended Ohralik indefinitely. On appeal, Ohralik argued "that his in-person solicitation was Constitutionally indistinguishable from the newspaper advertisement in [the] Bates case."26 The Supreme Court affirmed the Ohio Supreme Court and held that a state may forbid in-person solicitation for pecuniary gain if there exists a circumstance likely to pose the dangers of coercion and undue influence. The Supreme 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, let alone with forms of speech more traditionally within the concern of the First Amendment."27

In 1980, the Supreme Court decided Central Hudson Gas & Electric Corporation v. Public Service Commission of New York.28 In this case, the Court looked at the protection given to all commercial speech, including legal advertising. The Supreme developed a four-part test to help determine whether a state's particular restriction on commercial speech is constitutional.

Most cases since the decision in Central Hudson have used the four-part test in helping to making determinations as to whether particular commercial speech is Constitutionally protected. One of the more recent and notable cases applying the four-part test is Shapero v. Kentucky Bar Association, decided in 1988.30 The Court there threw out the Kentucky Supreme Court ruling prohibiting targeted, direct-mail solicitation by attorneys for pecuniary gain. The Court restated its position that prohibition of commercial speech may be restricted only where it serves a substantial government interest. Since the letters were of no more influence than a simple print advertisement, the Court said there was a much lower risk of undue influence.

The most recent case to reexamine the protection given to lawyer advertising is Florida Bar v. Went For It, Inc., a 1995 case.31 Here the Court used the Central Hudson test to uphold a rule prohibiting attorneys from direct mail solicitation of personal injury or wrongful death clients within thirty days of an injury or death. The Court found the evidence presented by the Florida Bar, professional surveys and evidence of negative public reaction towards direct mail solicitations immediately after an accident, fulfilled the "directly advances the government interest" prong of the Central Hudson test. Went For It, Inc. is the first case, besides Ohralik, "in which the nation's highest court completely supported a state bar advertising/solicitation regulation."32

Some critics of Went For It, Inc. state that it is a perfect example of how inept the Central Hudson test is in its protection of commercial speech. Others hope the Supreme Court continues to rule in favor of regulations and give state bar associations more power to regulate attorney advertising. Regardless of where people stand, applying the recent Supreme Court rulings as well as the Central Hudson test to rules regulating advertising over the internet will produce many new definitional and constitutional problems that will be examined in the next section.

Putting Internet Resources into Perspective

Regulations set up by state bar associations, until recently, have not been applied to the internet. Television, newspapers, radio, billboards, pamphlets, flyers, and many other traditional means of advertising have all been examined by state bar associations as well as the Supreme Court but the internet presents new problems of definition. Case law for the past twenty years has dealt with traditional means of advertising. Since the Supreme Court has yet to deal with attorney advertising and the Internet, the state bar associations are left with no final word on how to deal with the influx of new markets and the use of new means of communications with prospective clients.

The practice of law is built around the concept of precedent, and state bar association build their rules around such concepts as well. Rules are not changed overnight and old regulations are not thrown out in favor of new ones. The Florida Bar Association, addressing the possibilities of internet advertising, issued an Ethics Update in the Florida Bar News, January 1, 1996 (Ethics Update).33 This update attempted to inform the Florida legal community how it would regulate advertising on the internet. Yet this update contained no new rules, but rather stated that the old regulations, located in Chapter 4-7 of the Florida Rules of Professional Conduct, would apply to the internet in addition to traditional media. It highlighted some of the relevant rules as they apply to the internet :

Exactly how the Florida Bar Association intends to regulate internet advertising is not made clear by the Ethics Update. What is clear is that they are aware of internet advertising and will view it in light of the already existing chapter 4-7 Florida Rules of Professional Conduct.34 The practicality of such a view by the Florida Bar Association will be examined in regards to the new resources the internet offers legal advertisers. The constitutionality of any regulations will be examined in light of recent Supreme Court cases and, where applicable, older Supreme Court cases.

Home Pages and Web Sites

The largest growing and most visible service offered on the internet is the Web site.35 A Web site is a term used to describe an advertisers Home page as well as all the links included within it. A Web site has many different pages but always begins with a home page, which is a combination of billboard, title page, and directory of services. It is accessible by anyone connected to the internet, which means that it can be viewed anywhere in the world. A typical Web site can offer anything from simple typed information, similar to a newspaper article to a flashy graphics driven, animated advertisement. (An example of a legal web site) A home page can contain the entire advertisement, but more than likely will not be self- contained. The reason why the Web is fast becoming so popular is the way it works. The Web is run by HTML (Hyper-Text Mark-up Language). This allows a viewer of a home page to click on a particular item located on the homepage and instantaneously view such an item. For example, a corporate lawyer may include a link to the home pages of different government agencies to help his clients access them. A home page can become something of a menu, offering readers much to choose from.

The Florida Bar Ethics Update provides that the advertising lawyer must file three things.

The practicality of these requirements seems foregone in the face of advertising on the Web. First, a hard copy of the ad would seem to indicate a print-out of what the attorney has created; similar to a copy of a newspaper advertisement. All Web pages are not the same though, and depending upon the choice of browser36, the advertisement may appear different. Some browsers only show text, while others may allow sound and moving images like a television set. In addition, what makes a Web page attractive (assuming the attorney wants attractiveness) is its links to other documents available on the Web. So a print out may only show a table of contents that lead to many other Web sites in addition to the advertising at the attorney's site. Hard-copies of Web sites that the advertiser is linked to would be impractical because an attorney advertising many different services could be linked to thousands of pages of information. It also seems useless to require submitting a home page that is but a "door" to large amounts of information elsewhere on the Web. Submitting a print-out of an entire Web site is unfeasible and unworkable. Second, a statement of "when" and "where" the ad will appear is impossible. A Web site doesn't really exist until someone pulls it up on their computer. It exists only on its "server"37 and appears only when accessed. Anyone in the world can access a Web page. A Florida law firm advertising their practice could be seen by people in any state. This may present jurisdictional problems, as most states, including Florida, prohibit attorney advertising in jurisdictions where they are not licensed to practice.38 "When" the advertisement appears is also problematic. Similar to "where", "when" an advertisement appears is also subject to when someone accesses it. Until then, it doesn't actually appear, although one way to view it is that it is always appearing upon the servers computer and that people only "see" it when they access the server. Lastly, a filing fee of $50 per advertisement may prove to be unworkable as well. One of the greatest things about the Web is its ability to stay current. An attorney Web site could be modified weekly, or even daily, if that attorney keeps information pertinent to his practice on his site (which many do).

The Florida Bar has not addressed the issue of updated advertisements on the internet yet39, but it is clear that revisions of other forms of advertising require a new $50 fee every time a new advertisement is sent in for approval. The Florida Bar will have to take into consideration the speed with which advertisements can be changed and updated on the internet when it finally addresses these issues. It would be impractical for daily updates to be approved before posting, but whether that requirement will apply to the internet remains to be seen.

The Florida Bar must address these concerns in greater detail than its recent Ethics Opinion. The "where" requirement should become where the advertisement is located i.e. internet address and also include the address of the server , so the server could be served with papers if necessary. The "when" requirement should be the date of initial publication upon the internet. Lastly, the $50 fee will have to be modified as attorneys may wish to keep their Web sites up to the minute and may modify their pages more than weekly. If that is the case, the Florida Bar will have to find another way of either charging fees or else require less filings for subsequent modifications that do not change more than a certain percentage of the current advertisement.

The Constitutionality of regulating attorney advertising over the Web, whether a simple one document home page or a larger Web site, seems much clearer than the murky water surrounding the Florida Bar regulations. Advertising through the Web is similar to a client walking into a law office or calling them up on the phone and requesting information because the choice is totally left to the public. The four-part Central Hudson test indicates that a state may not prohibit such advertising. "A government regulation prohibiting a law firm from setting up an internet node or advertising in a service specifically set aside for advertising would be much broader than necessary to further the governmental interest in protecting the public from the evils of overreaching, undue influence, and fraud."40 A prohibition of attorney advertising on the net would harken back to the turn of the century when all attorney advertising was prohibited and as such it is not foreseeable such a prohibition will ever take place. However, regulating such Web sites and requiring that the advertisements not be false or misleading is clearly Constitutional as both Bates and Virginia Pharmacy held and as currently indicated by Florida Bar v. Went For It, Inc.

The Florida Bar also has yet to address, or perhaps become aware of, some of the more subtle points of internet advertising. Lately, some advertisers and some people just out for attention have devised a method of having their Web sites prominently figured when a search engine is used. A search engine is a Web site that finds other Web sites. It basically looks for certain key words or terms that the user tells it to look for, and lists all those Web pages meeting that criteria. For example, if a search engine was to look for "bankruptcy attorney" it would pull up all the documents contain the word "bankruptcy attorney" in the title. The search engine lists all the Web sites by the frequency of the appearance of the words searched for. There is a way to add key words at the end of the home page without it appearing on the screen. This allows someone to type whatever word or phrase they want associated with their home page as many times as they desire without it showing up. The was discovered by people typing "sex" a hundred times and seeing how many times their page was accessed by these search engines. Attorneys could possible abuse the system by typing such words as "best lawyer" after their page and when someone search for the "best lawyer", their page would appear. The Florida Bar will want to regulate this to keep attorneys from abusing a research technique used by the general public.


Newsgroups can best be described as virtual bulletin boards. There are two type of newsgroups, moderated and unmoderated. The flow of information to a moderated newsgroup is controlled and postings that are not relevant or offensive are sometimes not posted depending on the moderator. Many newsgroups are unmoderated, and are actual virtual bulletin boards where anything can be posted. The bulletin boards are, for the most part, very specific. Topics range from recipe newsgroups to newsgroups about people with cancer. An attorney posting an advertisement to a newsgroup is best viewed in the same light as placing an ad in a newspaper. For instance, people must want to read it and must actively seek it out.

It was a newsgroup posting that caused the one of the biggest uproars yet in the internet community. As previously mentioned, the law firm of Canter & Siegel created an avalanche of anger towards advertising in general on the internet when they sent their advertisement for immigration services to thousands of different newsgroups, most of them having nothing to do with either law or immigration41. The on-line community tried to self-regulate these postings by bombarding Canter & Siegel with thousands of e-mail messages, including death threats, and by harassing the firm.42 Such self-regulation is outside the realm of government intervention, but it proves to serve a point that the internet has its own rules called "netiquette"43 with which to regulate advertising. It is also interesting to note that although the on-line, as well as the legal community, did express their disapproval of the Canter & Siegel advertising strategy, Canter & Siegel claim that they received over 20,000 positive responses and that some of them even became clients.44 Whether or not Canter & Siegel are telling the truth is unclear. What is clear is the impact, both on advertising and ethics, that the internet can produce.

States, on the other hand, could not Constitutionally bar such postings by attorneys, regardless of which newsgroups they were posted on. Using the analysis in Bates45, which dealt with a newspaper advertisement, the possibilities of undue influence and duress do not exist with the use of newsgroup postings because, like a newspaper, it is the computer user, much like the newspaper buyer, who controls the flow of information. If a state bar association were to prohibit such postings, the Supreme Court, if it got that far, would find such prohibition overbroad and thus unconstitutional. As long as the advertisement is not false or misleading, it should easily pass Constitutional muster as well as the Central Hudson test. In the future, the state bar associations may restrict newsgroup postings to newsgroups that are related to the services offered within the attorney's advertisement. While the ability to restrict the time, manner, and place of the advertisement seems to be supported by the string of cases beginning with In re Primus, if the state decided to regulate which newsgroups the advertisement could be posted to, First Amendment issues could be brought up under overbroadness and perhaps whether the government has a substantial state interest in whether advertisements are seen in all unmoderated newsgroups or just the ones approved by state bar associations.

The Florida Bar's requirement to provide "when" and "where" information could present some practical problems as well. A newsgroup posting should normally go up instantly, but since the people on the newsgroup mailing list may not log on everyday, not every person who reads the newsgroup will receive it the next day. In addition, similar to Web sites, people access newsgroups from everywhere, so the "where" requirement is not so easily dealt with. The Florida Bar would be better off addressing the issue by requiring the submission of the date the advertisement was submitted to the newsgroup and a list of the newsgroups posted to. If an attorney tries "spamming", a process by which all newsgroups will receive the posting, then a simple list of all active newsgroups could be given along with the rest of the required information.

Chat Groups

Chat groups are virtual on-line conversations between a group of people, all logged onto the same commercial server, such as America Online or Compuserve 46, and limited only by a persons ability to type. There are no graphics, only type- written words as they appear on the screen, and a name stating who typed them. This is the closest attorneys can get to in-person solicitation using the internet (graphical interfaces may soon be available). In the chat rooms, attorneys could talk and answer questions in real time, limited only by how fast they could type 47. The people in the room could be from any state and any jurisdiction. It's impossible to know who is in the room with you because most people use nicknames as their on-line personas.

States could prohibit such solicitations under the Central Hudson four-part test. Assuming that the information is truthful and not misleading and doesn't concern unlawful activity, therefore falling under commercially protected speech, the state clearly has a substantial interest in not allowing an attorney, trained in the art of persuasive writing, to participate in such discussions to gain business. A prohibition of attorneys from participating in such groups, to the extent they use it to advertise their services, would directly advance the asserted interest and would not be overbroad. While attorneys may argue that it's only the written word, such an argument sounds hollow when put into the perspective of a real-time chat room where people are typing as fast as they can talk and conversations are still conversations, lacking only sound. A distinction must be made between an attorney participating in a chat room and using a chat room specifically for advertising. Participation is the same as talking to people at a party. If the attorney were to set up a chat room where he distributes advice or keeps telling people in the room to visit his office for the continuation of advice only half-way given on- line, the Florida Bar will want to address the issue. This is unlike attorneys giving lectures in that there is a much smaller audience and the possibilities for undue influence are much greater. This is also unlike an advice column posted on the Web as there is interaction in a chat room that, once again, may cause undue influence.

The Florida Bar doesn't address the subject of chat rooms in its Ethics Update from January, 199648. It does however have Rule 4-7.4 which states "A lawyer shall not solicit professional employment from a prospective client with whom the lawyer has no family or prior professional relationship, in person or otherwise, when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain." The term "solicit" is later defined as " in person, by telephone, telegraph, or facsimile or by other communication directed to a specific recipient..." So it seems as if the Florida Bar's Rules of Professional Conduct would bar such chat group advertising. In reality though, the enforcement of such a rule would almost be impossible.

Direct E-Mail Solicitation

E-mail is similar in form to normal letters delivered by the post office. The differences being that e-mail is instant and that many of them could be sent out at no cost. This presents many new advantages for attorneys. First, they can send out as many letters as they want at a minimal cost. Second, the letters can get to their destinations instantly. Third, responses to the letters can also be instantly received. Such speed could enable a personal injury lawyer to send an e-mail to the victims of an accident moments after the accident occurred.

In Shapero49, the Supreme Court held that a state may not prohibit lawyers from soliciting clients for pecuniary gain by sending truthful and non-deceptive letters to people known to face particular legal problems 50. However, the Supreme Court has very recently swung in the opposite direction of Shapero. In Florida Bar v. Went For It, Inc.51, a prohibition of direct-mail solicitation to accident victims within 30 days of an accident was upheld. Using the Central Hudson test, the Court ruled that it passed it because "...the challenged regulation furthered a substantial governmental interest protected by a narrowly drawn regulation which advanced the interest in a direct and material way."52 The speed with which an e-mail would reach an accident victims family will surely be seen by the courts as posing a possibility of undue influence due to the emotional state of the victim's family. The fact that the Supreme Court upheld a 30 day ban seems to indicate that the speed of e-mail would definitely make prohibiting it Constitutional, although it seems as though the Court would have trouble prohibiting it past the 30 days it ruled for in Went For It, Inc. In cases other than accident victims, states could require attorneys to file such e-mail advertisements with the state bar associations, much the same way it works for normal mail.

The practicality of the Florida Bar regulating e-mail relies upon the willingness of the attorney to file such e-mails with the Florida Bar. Perhaps if the Florida Bar had a permanent presence on the internet, such mailings could be approved and sent out much more easily. The Florida Bar may also be unaware of how vast the e-mail system can become. A knowledgeable computer user could be able to obtain large mailing lists and be able to mail millions of people legal advertisements. Such mailings would ordinarily be impossible to do, but with e-mail, the possibility to abuse the system exists. The Florida Bar will have to examine how "mass" they will allow "mass mailings" to become.

Where This Leaves the Florida Bar

The Ethics Opinion prepared by the Florida Bar Ethics Department and printed in the Florida Bar News in January, 1996 becomes more and more out-dated everyday.53

To see the entire update, click here

The issues it addresses are already moot and the Florida Bar is not taking the initiative. The Ethics Update states, ironically using hindsight, that "the committee is looking toward the not-so- distant future when, for example, e-mail will become more widespread and lawyers may begin using e-mail to send information to, or solicit business from, prospective clients." 54 Chapter 4-7 of the Florida Rules of Professional Conduct, also becoming out of date, will have to be gone over with a fine tooth comb in order to accommodate the new technology that the internet presents. An example is Rule 4- 7.4(b)(2)(C) which states "Written communications mailed to prospective clients shall be sent only by regular U.S. mail, not by registered mail or other forms of restricted delivery."55 This would seem to conflict with the entire notion of e-mail. The Ethics Update and the existing chapter 4-7 does not clear up the controversy. The Florida Bar does not even have a clear presence on the internet. While individual members of the Florida Bar Ethics Department may have e-mail address, the address of the Department itself is either non-existent or hidden. The Florida Bar must address this seemingly backward looking approach and face the new technologies head-on. Perhaps such regulations may even become less stringent. The internet could be a way for lawyers and clients to interact on a much more level field. Correspondence could be instantaneous; clients billed at an hourly rate could see daily how much time their attorney spent on their case; clients could have every letter mailed to them or that they mailed to the lawyers on the screen in front of them at any time of any day; the possibilities are endless. Advertising not only over the internet, but about the internet and how a law office will utilize it may be just what the legal profession needs to create a new client-friendly atmosphere. The Florida Bar should take the internet and make it work for them. Yet without making the Florida Rules of Professional Conduct more in tune with the internet, things will never progress.

Additional information from other Web sites and other sources.


1. The internet is "a global system for linking other computer networks together, using TCP/IP network protocols as the basis for communications" G. Burgess Allison, The Lawyers Guide to the Internet, American Bar Association, 1995 at 334. Back to the document

2. The World Wide Web (Web) is "an internet resource that utilizes a network of servers that use hypertext links embedded in documents to find and access other data resources." Allison at 336. Back to the document

3.(2) Todd A. Corham, Uses for a Firm's Web Site Go Beyond Marketing, National Law Journal, March 25, 1996. Back to the document

4. Elizabeth Gamsky Rich and Mark A. Shiller, An Primer for Lawyers, 68 SEP Wis. L. Rev. 14, (1995). Back to the document

5. Allison at 180. Back to the document

6. A Web site is basically electronic pages, filled with text and/or graphics that can be accessed by anyone in the world with a connection to the World Wide Web. A Web site resides on a "server" (see note 30) and can be a simple text-only display or an interactive document requiring input from the user who accessed it. Back to the document

7. E-mail is the electronic transfer of documents through the web. It is basically what it is called "(E)lectronic-mail". Back to the document

8. Mark Hansen, Lawyers' Internet Ad Angers Users, ABA Journal, July, 1994. Back to the document

9. "A newsgroup is a discussion group that is operated through the Usenet conferencing protocols. These discussion groups are similar to public bulletin boards-in which participants come to a common location to read and post messages." Allison, supra note 4, at 336. Back to the document

10. A "flame" is when "one person unleashes invective at another- through either e-mail or a discussion-group posting." These letters are a form of nasty letter sent to a disliked person. Allison at 333. Back to the document

11. Allison, at 335. Back to the document

12. See Allison Chapter 16, Fun With Statistics: Internet Growth. Back to the document

13. William E. Hornsby, Jr. and Kurt Schimmel, Regulating Lawyer Advertising: Public Images and the Irresistible Aristotelian Impulse, Geo. J. Legal Ethics, Winter, 1996 at 325-326. Back to the document

14. Robert Battey, Loosening the Glue: Lawyer Advertising, Solicitation, and Commercialism, Geo. J. Legal Ethics, Fall, 1995, p291. Back to the document

15. Bates v. State Bar of Arizona 433 U.S. 350 (1977). Back to the document

16. Florida Bar v. Went For It, Inc. 115 S.Ct. 2371 (1995). Back to the document

17. Cyberspace, as in the entire electronic world opened up by the internet. Back to the document

18. Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. 425 U.S. 748 (1976). Back to the document

19. Valerie D. Wood, The Precarious Position of Commercial Speech: Rubin v. Coors Brewing, Harv. J.L. & Pub. Pol'y, Winter 1996, p621. Back to the document

20. Battey at 292. Back to the document

21. Brian G. Gilpin, Attorney Advertising and Solicitation on the Internet: Complying with Ethics Regulations and Netiquette, J. Marshall J. Computer & Info. L. Rev., Summer, 1995, p702. Back to the document

22. In re Primus, 436 U.S. 412 (1978). Back to the document

23. Ohralik v. Ohio State Bar Association, 436 U.S. 447 (1978). Back to the document

24. 436 U.S. at 423. Back to the document 25. Gilpin at 705. Back to the document

26. Gilpin at 706. Back to the document

27. 436 U.S. at 469. Back to the document

28. Central Hudson Gas & Electric Corporation v. Public Service Commission of New York, 447 U.S. 557 (1980). Back to the document

29. 447 U.S. at 557-559. Back to the document

30. Shapero v. Kentucky Bar Association, 486 U.S. 466 (1988). Back to the document

31.Florida Bar v. Went For It, Inc., 115 S.Ct. 2371 (1995). Back to the document

32. Battey at 302. Back to the document

33. Ethics Update, Prepared by The Florida Bar Ethics Department, The Florida Bar News, January 1, 1996. (hereinafter Ethics Update) Back to the document

34. see note 55. Back to the document

35. supra note 2. Back to the document

36. "This is the generic term for anything that lets you browse through various internet service collections. Most frequently though, it's used in the context of a 'web browser'-which is the client part of the World Wide Web internet service." Allison at 330. Some of the more popular browsers are Netscape, Mosaic, and Lynx. Back to the document

37. For purposes here, a "server" is nothing more than the computer or computer network where the advertiser's Web page resides. Back to the document

38. See Arvid E. Roach II, The Virtues of Clarity: The ABA's New Choice of Law Rule for Legal Ethics, S. Tex. L. J., November, 1995. Back to the document

39. The Florida Bar Joint Presidential Advertising Task Force is meeting on May 14, 1996, to decide this issue among many others involving the internet and advertising. Back to the document

40. Gilpin at 715-716. Back to the document

41. The incident involving the Canter & Siegel "Green Card" advertisement has become something of a legend in the cyberspace community. It proves the point that even if there are no regulations stopping an attorney from advertising in a particular fashion, information should be found as to how the prospective audience may react. In this particular case, the law firm found out how truly anti-commercial some newsgroups were. Back to the document

42. Martha Siegel, Letter from Martha S. Siegel to the American Bar Association Journal, A.B.A. J., Sept. 1994, p13. Back to the document

43. "A set of standards and practices that guide the "proper" behavior of participants on the internet." Allison, p335. Back to the document

44. Supra note 42. Back to the document

45. 433 U.S. at 354. Back to the document

46. America Online and Compuserve are both commercial on-line service providers that provide hundreds of thousands of people with connections to the internet as well as their own on- line services, which include chat rooms. Their chat rooms are usually capable of holding 20 or more people and allowing all of them to participate in the virtual conversation by typing what they would be saying, as if they were actually in the same room together in reality. Many of these chat rooms are categorized by theme, with people going into the rooms to "chat" about such themes. For example, A room titled Divorce Lawyers would (ideally) have a group of people talking about divorce lawyers, while some people may or may not be divorce lawyers or even lawyers themselves, they all could participate in the conversation. Back to the document

47. Some new computers come equipped with voice recognition devices which could make conversations even more personal. Back to the document

48. Ethics Update. Back to the document

49. 486 U.S. at 470. Back to the document

50. Id at 471. Back to the document

51. 115 S.Ct. at 2376. Back to the document

52. 115 S.Ct. at 2378. Back to the document

53. Ethics Update. Back to the document

54. Id. Back to the document

55. The Rules Regulating the Florida Bar and Ideals And Goals of Professionalism, A Handbook for Florida Law Students, Developed by the Florida Bar Committee on Lawyer Professionalism, p81. Back to the document