Newspaper Articles

This collection of articles was published in the Detroit Legal News from 1995-1997. All were written in the infancy of the modern Internet, before the landscape surrounding Internet legal and business issues began to develop. Access to the Internet largely consisted of dial-up connections on a 14.4 kbs modem or slower. Both the technology and state of the law have evolved considerably since these were first published.

Using the Internet for Legal Marketing

Originally published May 1, 1996

In the 1977 ruling in Bates v. State Bar of Arizona, 433 U.S. 350 (1977), the Supreme Court determined that lawyer advertising is commercial speech that generally cannot be prohibited unless it is false, deceptive or misleading.

Since Bates, legal marketing has taken a variety of forms, the most recent of which are the electronic “home page” and e-mail-based solicitations by attorneys.

Attorney conduct, including marketing, advertising and "commercial speech," is governed on a state-by-state basis under the Model Rules of Professional Conduct (MRC) and, to a lesser extent, the Model Code of Professional Conduct (MPC). While the MRC and MPC are "uniform" laws, there are numerous variations among states.

Whether any changes to existing ethical rules are necessary to appropriately regulate attorney conduct on the Internet depends in large part on the rules in effect in a particular state.

Michigan, for example, has adopted the MRC. There are several MRC rules in Michigan which seemingly apply to attorney advertising on the Internet and home pages on the World Wide Web without the need for further modification.

For example, Rule 7.1 permits attorney use and participation in any form of public communication that is not false, fraudulent, misleading or deceptive. The official comment notes that this rule applies to all attorney communications, including advertising.

Rule 7.2 permits attorney advertising provided that a copy of the advertisement or communication is kept for a period of two years following its last dissemination.

Rule 7.3 restricts solicitation of prospective clients "by telephone or telegraph, by letter or other writing, or by other communications directed to a specific recipient.

Because these rules are not dependent on the specific form of communication, regulation of the presence of Michigan attorneys on the Internet presumably falls within the framework of existing Michigan laws.

Thus, a Web page that is deceptive, creates unjustified perceptions about results or that seeks to compare a lawyer’s services with those of other lawyers is prohibited, just as it would be in the case of television or radio advertisements with these characteristics.

Retaining copies of Web pages and other electronic media, while clearly required, is a relatively easy task in the case of computer driven communications.

Targeted e-mail solicitations by a lawyer presumably would violate rule 7.3 as it currently is written in the same manner as telephone or even fax-based solicitation.

While the Michigan version of the MPC was adopted without anticipation of the Internet, the rules can be applied fairly easily to the more common Internet and World Wide Web offerings of attorneys.

In other states, the rules may be drafted in a manner that is more media specific. In such instances, application of existing rules to the unique Internet environment is more difficult. In many cases, changes may in fact be necessary to accommodate the unique nature of the Internet.

Among the variations in attorney advertising rules are restrictions on electronic communications outside a specific geographic area, content pre-approval or filing requirements, mandatory labeling or disclaimers and prohibitions on certain types of advertisements, such as those containing testimonials, illustrations or animations.

Several states already have promulgated draft or final legislation, rulings or interpretations directed specifically at the Internet and on-line communications in light of the difficulty in applying existing ethical rules to the Internet or as a result of a perceived need for additional

For example, the Texas State Bar Advertising Review Committee recently issued interpretative comments to the Texas Disciplinary Rules of Professional Conduct. Under the rules, attorneys publishing a home page must file the first screen and any linked information concerned primarily with the solicitation of prospective clients. The comments list several types of information (articles, newsletters, etc.) that generally are not addressed at solicitation and as such, are exempt from filing requirements.

Attorney presence and marketing on the Internet, like Internet offerings in general, is quite diverse. Despite the much publicized incident involving the Phoenix firm that bombarded Usenet groups with the wonders of its immigration practice, many of the current Web offerings by individual attorneys and firms are a mix of informational, educational and cross-indexing tools.

Atlanta patent attorney Jeffrey Keuster's site, entitled "Keusterlaw," is but one notable example. (See http://www.keusterlaw.com). While there are references or links to Jeff and his firm (together with plenty of disclaimers), the site is principally a useful compilation of hypertext links to legal-related Internet sites.

Web pages of individual attorneys, local firms and firms with large national practices also are springing up constantly. These sites range from meager to lavish. While they may have a marketing undertone, they also provide valuable information to clients, prospective employees and the public at large.

On the other extreme, inappropriate, false and misleading advertisements by attorneys (or pseudo attorneys) are increasingly common on the Internet. Such activity violates most state laws and the form of delivery medium should not change the prohibition of such conduct.

Increased regulation of attorney conduct on the Internet may be inevitable. However, given the infancy of the technology and its applications, and the relatively minor role it plays in the current legal environment, care must be exercised before adopting new laws and regulations that are burdensome or premature or that unnecessarily (and perhaps unintentionally) discourage attorney presence on the Internet.