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.
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 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.
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.
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.
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 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 "...contact 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.
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.
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 In.ter.net
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
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.
Putting Internet Resources into
Perspective
Home Pages and Web Sites
Newsgroups
Chat Groups
Direct E-Mail Solicitation
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
Endnotes