The Marketing of Legal Services on the Internet and the Model Rules

Untangling the Wicked Web: The Marketing of Legal Services on the Internet and the Model Rules

Hurld, Christopher

INTRODUCTION

Over the past decade, the rapid growth of the Internet has given lawyers the opportunity to market their legal services on a previously unheard of scale. However, the Model Rules of Professional Conduct (“Model Rules”) have not kept pace with issues created by the Internet explosion and Internet-based lawyer advertising. Although Ethics 2000 (formed by the American Bar Association in 1997 to review the Model Rules) made some Internet related changes to Rules 7.1, 7.2, and 7.3, these changes were limited. Regulation of lawyers on the Internet seems to require a combination of traditional ethical limits on advertising that have been applied to other media and a recognition that some aspects of the Internet require a new way of thinking about lawyer advertisements.

Part I of this Note begins by examining the ethical concerns that have led to the regulation of lawyer advertisement and the history of that regulation. Part II briefly describes the explosive growth of the Internet in an effort to demonstrate the enormity of the potential problems that legal marketing on the Internet could cause. Part III describes specific aspects of the Internet that present challenges to the traditional regulation of advertising and solicitation. Part IV discusses the Ethics 2000 changes to the advertising and solicitation rules. Finally, Part V introduces possible changes to the Model Rules that would better address Internet advertising difficulties.

I. ETHICAL CONCERNS OVER LAWYER ADVERTISEMENT AND THE HISTORY OF REGULATION

A. ETHICAL CONCERNS

At the heart of the concern over lawyer advertisement lies the fundamental paradox of the American legal profession. The monopoly of the legal profession is sustained by its definition as a profession as opposed to a business.1 Businesses are endeavors fueled by the quest for pecuniary gain; the legal profession is supposed to be fueled by a desire to serve the public.2 The legal profession originally sought to ensure this distinction by not allowing business oriented practices such as advertising.3 However, in order to serve the public, the members of the profession must be financially sustained by their practice of the law. Advertising, although seen as a crass “business” practice, is needed to help ensure the continued existence of the legal profession.

There are other ethical concerns regarding the marketing of legal services. For example, there is concern that in-person solicitation of a prospective client may lead to the lawyer overbearing the prospective client’s will.4 The two main reasons for this concern are as follows: first, a lawyer is specially trained in the art of advocacy, while the potential client is almost certainly not; second, the prospective client may already feel emotional and overburdened by the circumstances that occasion their possible need for legal advice.5 Another concern regarding the marketing of legal services is that widespread marketing will lead to stirring up of frivolous lawsuits.6 Such behavior was seen as not only unprofessional, but also “indictable at common law.”7

B. HISTORY OF REGULATION

The modern regulation of legal services began in 1908 when the American Bar Association (“ABA”) adopted the first national standards governing the behavior of lawyers, the Canons of Professional Ethics (“1908 Canons”).* The 1908 Canons banned both direct and indirect advertising, as well as solicitation.9 State supreme courts generally accepted these bans, and for seventy years the 1908 Canons stood as the controlling law regarding the marketing of legal services.10 In the 1977 case of Bates v. State Bar of Arizona, the Supreme Court held that outright bans on lawyer advertising violated the free commercial speech doctrine of the First Amendment, and were therefore unconstitutional.11 However, the Court also stated that some regulation of the marketing of legal services was not only permissible, but desirable.12 For example, the Court stated that claims regarding the quality of the legal services to be provided might be so immeasurable that they would be inherently misleading.13 The Court also stated that the same concerns “might justify restraint on in-person solicitation.”14 However, the Court did not provide any substantial guidance as to specific regulations that would be allowed. It became the responsibility of the ABA to create a new set of standards regarding the advertising of legal services and the solicitation of clients.

New regulations were adopted as part of the amended Model Code of Professional Responsibility (“Model Code”) a mere six weeks after the Bates decision.15 Although many of these new regulations are no longer in effect, the ABA retained the provision prohibiting in-person solicitation.16 In 1978, this ban was upheld by the Supreme Court in Ohralik v. Ohio State Bar Ass’n}1 The Court found that the ban would prevent attorneys highly trained in the art of advocacy from taking advantage of emotionally vulnerable prospective clients.18 Thus, one of the main ethical concerns regarding the marketing of legal services could still be protected.

Another case important to the regulation of lawyer advertising and solicitation actually had nothing at all to do with the marketing of legal services.19 In 1980, the Supreme Court decided Central Hudson Gas & Electric Corp. v. Public Service Commission of New York.2″ This case laid out the following test for determining whether or not a state restriction on commercial speech was constitutional:

In commercial speech cases, then, a four-part analysis has developed. At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.21

In Board of Trustees of State University of New York v. Fox, the Court held that the government restriction on commercial speech need not be minimized, but that there need only be a “reasonable fit” between the regulation and the governmental interest.22

The Model Rules were adopted by the ABA in 1983.23 Since 1983, forty-two states and the District of Columbia have adopted some form of the Model Rules.24 Unlike the Model Code, which had both ethical considerations and disciplinary rules, the Model Rules simply set the minimum floor of ethical conduct.25 This considerable change, combined with the recent flurry of state bar ethical changes occasioned by the Bates decision, “led to substantial diversity among the states for those standards governing lawyer advertising.”26 This diversity has only been exacerbated by numerous Supreme Court decisions which have found the advertising/solicitation portions of the state rules based on the Model Rules to be unconstitutional.27 In fact, from the 1983 adoption of the Model Rules to 1998, six of the nineteen changes to the rules have concerned advertising and solicitation.28 This variation in state rules and the vast expansion of the Internet’s use for the marketing of legal services provided the context for the Ethics 2000 changes to the advertising and solicitation provisions of the Model Rules.

II. A POTENTIALLY HUGE PROBLEM

The Internet has grown explosively over the last twenty years. In 1984 just over 1000 “host” computers were linked to the Internet.29 By 1990, the number of host computers had grown to 300,000. Also in 1989, the World Wide Web was created using Hypertext Transfer Protocol (“HTTP”), which simplified the writing of Internet addresses, and the ability to search the Internet for the addresses.30 By the end of 1992, there were only about 50 web sites; a year later there were 150.31 By 1997, there were 19.5 million hosts and 1.2 million web sites.32 By 2001, those numbers had climbed to 110 million and 30 million, respectively.33 The estimated number of worldwide users of the Internet has grown from 38 million in 1994 to 605.6 million in 2002, with 182.67 million of those users in the United States and Canada.34

Mirroring the rapid expansion of the Internet, use of the Internet by lawyers has also grown explosively.35 A recent ABA survey found that 98% of respondents have Internet access in their offices, and 92% have access while on the road.36 In addition, 94% have access to e-mail, 82% have access to web browsing software, and 27% have access to instant messaging software.37 Sixty-four percent indicated that their firm had a web site, including every respondent from firms of fifty or more lawyers.38 An earlier survey indicated that 61% of respondents actively marketed their services through the Internet.39 Even those lawyers and law firms who do not actively market their services via the Internet are often listed in an online directory such as the one maintained by Martindale-Hubbell at martindale.com, which purports to list over one million lawyers and law firms.40

The vast number of people on the Internet, the growing use of the Internet by lawyers to market their legal services, and the wide variation of state ethics rules regarding lawyer advertising and solicitation combine to create the potential for enormous problems. Additionally, the unique challenges that arise when attempting to regulate the use of the Internet to market legal services differ depending on which Internet-based form of communication is used.

III. SPECIFIC ASPECTS OF THE INTERNET AND THE PROBLEMS THEY PRESENT

The decision in ACLU v. Reno provides a discussion of the nature of the Internet that highlights the ethical problems unique to the marketing of legal services in Cyberspace:41

One method of communication on the Internet is via electronic mail, or “e-mail,” comparable in principle to sending a first class letter. One can address and transmit a message to one or more other people.42

The Internet also contains automatic mailing list services (such as “listservs”), [also referred to by witnesses as “mail exploders”] that allow communications about particular subjects of interest to a group of people …. The subscriber can submit messages on the topic to the listserv that are forwarded (via e-mail), either automatically or through a human moderator overseeing the listserv, to anyone who has subscribed to the mailing list …. Most listserv-type mailing lists automatically forward all incoming messages to all mailing list subscribers.43

The Web utilizes a “hypertext” formatting language called hypertext markup language (HTML), and programs that “browse” the Web can display HTML documents containing text, images, sound, animation and moving video.44

A variety of systems have developed that allow users of the Web to search particular information among all of the public sites that are part of the Web. Services such as Yahoo, Magellan, Altavista, Webcrawler, and Lycos are all services known as “search engines” which allow users to search for Web sites that contain certain categories of information, or to search for key words. For example, a Web user . . . would type the words “Supreme Court” into a search engine, and then be presented with a list of World Wide Web sites that contain Supreme Court information. This list would actually be a series of links to those sites. Having searched out a number of sites that might contain the desired information, the user would then follow individual links, browsing through the information on each site, until the desired material is found. For many content providers on the Web, the ability to be found by these search engines is very important.45

This global Web of linked networks and computers is referred to as the Internet.46

A. E-MAIL AND LISTSERVS

E-mail and listservs are sufficiently similar and linked to both succumb to one of the most widespread scourges of the Internet: “spam.” Spam is defined as “electronic junk mail or junk newsgroup postings.”47 The obvious benefit to sending unsolicited bulk e-mail to consumers is the low cost. Unlike costly print advertisements placed in phone directories, newspapers, or direct mailings, free e-mail service is available from many different providers.48 The main cost associated with spamming is the purchase of an e-mail list, which usually costs just a few hundred dollars.49 Because a lawyer could reach thousands of potential clients at such a low cost, a spam campaign could be cost effective even if only a tiny percentage of those spammed eventually became clients of the lawyer. Unlike more traditional forms of advertisement, spam usually costs the receiver more than the author. According to some studies, spam costs consumers more than $8 billion per year in wasted time and price increases by Internet service providers in order to fund their battles against spam.50

In 2001, spam accounted for a mere 7% of e-mail traffic. Today, more than half of all e-mails sent are spam.51 By 2006, some researchers believe that consumers will receive an average of 1400 pieces of junk e-mail a day.52 The time and effort needed to delete the messages, the memory space taken up, and the inherent cost to Internet service providers, as well as those who pay for Internet service, have led to significant opposition to spam. Some states have passed anti-spam laws and different versions of federal legislation have been recently passed by both houses of Congress. President Bush has indicated that he would sign such a bill into law.53 Proposed federal regulations would allow businesses to send unsolicited commercial e-mails until the recipient asked them to stop and would require the businesses “to label e-mailing containing advertisements, to not mask their identity in the reply address, and to include an ‘unsubscribe’ Internet link in each e-mail.”54 The legislation would also call upon the Federal Trade Commission (“FTC”) to explore the creation of a national “Do-Not-Spam” list of e-mail addresses.55

There has already been one highly publicized incident of a spamming lawyer being disciplined. Laurence Canter, a former lawyer who has been dubbed “The Father or Modern Spam,” was disbarred after he sent spam to thousands of e-mail addresses and listservs.56 However, even though Canter was disciplined in 1997, the Model Rules still do not directly address spamming by lawyers. The lack of a specific anti-spamming rule could eventually lead to much greater problems than those caused by Laurence Canter.

Currently, a lawyer could send a legal spam e-mail to thousands of recipients and not violate the Model Rules, as long as the e-mail was not false or misleading.57 Model Rule 7.3 only prohibits e-mails that involve coercion, duress, or harassment, and those sent to prospective clients who have already made their desire to not be solicited known to the lawyer.38 The lawyer would not even be required to include the words “Advertising Material” in the subject line of the email. Rule 7.3(c) states:

Every written, recorded or electronic communication from a lawyer soliciting professional employment from a prospective client known to be in need of legal services in a particular matter shall include the words “Advertising Material” on the outside envelope, if any, and at the beginning and ending of any recorded or electronic communication, unless the recipient of the communication is a person specified in paragraphs (a)(l) or (a)(2).59

If a lawyer has sent spam to thousands of recipients, it is clear that they are not “known to be in need of legal services in a particular matter.” Since the spam may not be clearly labeled as an advertisement, the recipient is more likely to spend time opening and reading the e-mail even if he or she is not in need of legal services.

Because such a communication is permissible under the Model Rules, a lawyer could cost the recipients of the spam the time and effort required to open, read, and delete the e-mail, the money spent to be online for that amount of time, and the memory on the recipient’s computer and e-mail account.60 If the time, money, and effort expended for one spam legal solicitation could be considered an annoyance, the aggregated impact of hundreds of thousands of lawyers sending such e-mails to hundreds of thousands of recipients would be overwhelming. There is nothing to suggest that this is an unreal possibility. As previously mentioned, virtually all lawyers have access to email, and Martindale-Hubbell lists one million lawyers.61 If only one percent (10,000) of those lawyers became dedicated spammers and sent out ten thousand e-mails per day, one hundred million spam e-mails would be sent out daily.62 More than thirty-six billion would be sent out annually.

While many feel that spam should be outlawed in general, special dangers exist when lawyers send spam. One of the main reasons for the liberalization of advertising rules since Bates has been to better provide the public with information about legal services.63 Unsolicited messages sent to hundreds of thousands of unsuspecting Internet users will probably be deleted and not achieve that goal. Instead, because of the low costs associated with spamming, it is likely that lawyers will be tempted to abuse this method of solicitation. The same spirit that prohibits individual lawyers from solicitation that involves duress or harassment would be well served by preventing the duress and harassment sure to be caused through unchecked spamming by multiple attorneys.64

B. WEB PAGES AND WEB SEARCH ENGINES

World Wide Web sites can be accessed by typing the Uniform Resource Locator (“URL”), the “global address” of the web site, into the address box of web browsing software.65 However, since web sites are commonly found by using web search engines, the problems each presents to the regulation of lawyer advertisement should be discussed together.

One way that web sites differ from more traditional forms of advertisement is that they can be created and changed quickly and inexpensively.66 Traditional print advertisements may be printed weekly in newspapers, or only once a year in the yellow pages.67 Because of this, they may contain information that was completely truthful when originally printed, but that has since become untrue or misleading. For example, in a yellow pages advertisement, a lawyer could refer to a case that he or she won. However, after the advertisement was printed, the case could be overturned on appeal.68 The lawyer would not be able to remove such information until a year later. However, if the lawyer were to refer to the same case on his or her web site, the site could be quickly and inexpensively changed to omit the false material.

Currently, Rule 7.1 states, “A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services.”69 In traditional advertisements, it is relatively easy to determine when a statement is made. However, with a web site, the situation is more complicated. Because of the low cost of correcting a web site, a lawyer’s site might be seen as a continuing statement. How much time must elapse before a lawyer can be said to be making a false and misleading statement under Rule 7.1? Once again, the Model Rules are silent on this unique aspect of the Internet as an advertising medium.

As previously mentioned, Internet users often use web search engines to find a web site related to a particular topic. These search engines usually employ a “crawler” or “spider” that periodically searches web sites and reads the actual language on the site, including any site “meta-tags.”70 The information is then compiled in an index. When using a search engine, a user actually searches the index, not the web itself, for the keywords he or she has typed in.71 Web sites are then ranked based on relevance to the keywords depending on the algorithm used by the search engine.72 The keywords and meta-tags of a web site, and their use by search engines to respond to users’ queries, do not have any analogy in traditional advertising media. Not surprisingly, it would be very possible for a lawyer’s web page to abuse the use of keywords and meta-tags to give his or her web site an artificially high relevance rating in response to an engine’s search.

One of the easiest ways that some web sites gain artificially high relevance ratings is through the use of repeated keywords. This practice is known as “keyword stuffing.”73 Sometimes this stuffing is accomplished by simply creating a block of text at the bottom of a web site that repeats keywords that a lawyer believes prospective clients might enter into a search engine.74 For example, a personal injury attorney might write a block of text that repeats the words: lawyer, accident, car, worker’s compensation, damages, hospital, slip, snow, court, insurance, whiplash, and settlement. Such words would not be inherently misleading, especially if the lawyer dealt with auto accidents and workers’ compensation cases. However, if the lawyer were to repeat the name of a rival personal injury attorney, or an area of the law in which he or she was not competent, the practice would no longer seem so innocent.75

Such blocks of text look strange and may alert a web-savvy prospective client. To get around this problem, the text could be repeated in the meta-tags which are read by search engines but do not affect the appearance of a web site.76 Additionally, the words could be written on the web site in a color matching the background making the text all but invisible.77 Many web search engines are becoming increasingly sophisticated in recognizing repeated phrases and discounting them.78 However, as web search engines become more sophisticated, so will the techniques to trick them. Just as lawyers are currently prohibited from making false or misleading communications, the misleading use of nearly subliminal repetitive keywords, meta-tags, and invisible ink should also be prohibited.79

C. GLOBALREACH

The final major difference between web sites and more traditional forms of advertising is also the most obvious: the global reach of the Internet.80 This aspect of the Internet applies to e-mail, listservs, web pages, and web search engines. It is also one of the most problematic for the regulation of Internet-based marketing of legal services. The wide variety of state rules on advertising are particularly implicated in this discussion of Internet-based advertising. A lawyer could send e-mail to prospective clients without knowing what state that person lived in and what ethics rules would apply to that solicitation. Similarly, a lawyer could create a web site that could be viewed by anyone from Alaska to Wyoming.

The Model Rules address the problem of which set of ethical rules to apply in Rule 8.5(b)(2):

Choice of Law. In any exercise of the disciplinary authority of this jurisdiction, the rules of professional conduct to be applied shall be as follows:

(2) for any other conduct, the rules of the jurisdiction in which the lawyer’s conduct occurred, or if the predominant effect of the conduct is in a different jurisdiction, the rules of that jurisdiction shall be applied to the conduct. A lawyer shall not be subject to discipline if the lawyer’s conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect of the lawyer’s conduct will occur.81

Comment 5 to Rule 8.5 states:

When a lawyer’s conduct involves significant contacts with more than one jurisdiction, it may not be clear whether the predominant effect of the lawyer’s conduct will occur in a jurisdiction other than the one in which the conduct occurred. So long as the lawyer’s conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect will occur, the lawyer shall not be subject to discipline under this Rule.82

Under Rule 8.5(b)(2) it is very difficult to decide where the predominant effect of a lawyer’s conduct on the Internet occurs. It is even more difficult to determine how a lawyer might make a good-faith effort to comply with the ethical rules of that jurisdiction. If a lawyer purchases a list of e-mail addresses and sends spam to them, that lawyer has almost no way of knowing where the recipients live and where they will read the message. Similarly, a lawyer who practices primarily in a jurisdiction with relatively lax advertising and solicitation rules would have no way to predict that his web site might be visited by natives of Florida, a state with some of the strictest limitations on lawyer advertisement and solicitation.83 With the increase in lawyer advertisement on the Internet, there is a need to determine how choice of law rules will apply in these situations.

IV. THE ETHICS 2000 INTERNET-INFLUENCED CHANGES TO THE MODEL RULES

The Model Rules that are related to the marketing of legal services are Rules 7.1, 7.2, and 7.3. These rules and the comments accompanying them were substantially altered through the Ethics 2000 process.84 However, Ethics 2000 made few Internet-inspired changes in Rules 7.2 and 7.3. The changes were mostly cosmetic and basically analogized Internet-based marketing with that done through other types of media such as print, television, and the telephone. Ethics 2000 made no Internet-related changes to Rule 7.1.85

A. RULE 7.2

The Ethics 2000 changes to Rule 7.2(a) illustrate the “regulation by analogy” approach quite clearly. The old version of 7.2(a) stated: “Subject to the requirements of Rules 7.1 and 7.3, a lawyer may advertise services through public media, such as a telephone directory, legal directory, newspaper or other periodical, outdoor advertising, radio or television, or through written or recorded communication.”86 Ethics 2000 simply removed the specific examples of advertising, and instead presented three broad categories of advertising media: written, recorded, and electronic communication.87 “Electronic communication” is simply treated as an equal part of the media trinity, with no specialized rules recognizing the fundamentally different nature of the Internet.88 Using such an approach, the problems presented by the use of misleading meta-tags or invisible ink could not be addressed. It is quite telling that the superficial addition of “electronic communication” is but one of six Ethics 2000 changes to rule 7.2, and the only one that implicates the Internet.89 The Internet is mistakenly treated as simply another method of advertisement.

However, one notable Internet-related change to Comment 3 of Rule 7.2 was made. Even before Ethics 2000, Rule 7.2 had codified the change in legal advertising since Bates: unlike when the Model Code was adopted in 1903, advertising is now seen as an important source of information for consumers seeking legal services.90 Television was and is seen as a powerful means of getting information about legal services to the public, and “particularly persons of low and moderate income.”91 By analogy, the rapid expansion of the Internet has provided a medium capable of giving even greater access to information about legal services, especially for people of low income.92 The change to Rule 7.2 Comment 3 recognizes this analogous benefit of the Internet: “Similarly, electronic media, such as the Internet, can be an important source of information about legal services, and lawful communication by electronic mail is permitted by this Rule.”93 This amendment to Comment 3 illustrates a belief that the Internet can be used to further the goal of the advertising rules.

B. RULE 7.3

More substantial Internet related changes to Rule 7.3 were made by Ethics 2000.94 However, these changes simply continue to treat the Internet as analogous to other methods of communication.95 In the new Rule 7.3(a), real-time electronic contact with prospective clients is now prohibited: “A lawyer shall not by in-person live telephone or real-time electronic contact solicit professional employment from a prospective client when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain . . . .”96

Changes to 7.3(b) prohibit solicitation through use of electronic communications, such as e-mail, and real-time electronic contact, such as instant messaging, if the client has made known to the lawyer a desire to not be solicited, or if the solicitation involves coercion, duress, or harassment.97 Prior to this change, only written, recorded, in-person, and telephone solicitations that occurred after the prospective client made known their desire not to be solicited, or those which coerced, caused duress, or harassed the prospective client were prohibited.98 Finally, the Internet-related change to Rule 7.3(c) requires that electronic communications soliciting professional employment from a prospective client known to be in need of legal services include the words “Advertising Material.”99 Prior to this change, the labeling requirement applied only to written or recorded material.100

These Internet-related changes to Model Rule 7.3 do have several positive aspects. This rule is implicated when a lawyer makes direct contact with a prospective client.101 As previously stated, in-person and live telephone contact with prospective clients carries the possibility that the lawyer, highly trained in the art of advocacy, might overwhelm the layperson.102 Such contact is thus prohibited under 7.3(a).103 Real-time electronic contact through Internet chat rooms or instant messaging software also subjects the prospective client to the “private importuning of the trained advocate in a direct interpersonal encounter.”104 The immediacy of the real-time electronic contact coupled with the lawyer’s pseudo-presence might overbear the prospective client’s judgment.105 The Ethics 2000 addition of “real-time electronic contact” to the rule recognizes that such behavior is similar enough to previously prohibited contact so as to cause the problem the rule seeks to avoid.

There is a second reason why in-person and live telephone contact with prospective clients is prohibited. The contents of advertisements under Rule 7.2 (television commercials, radio commercials, newspaper advertisements, web pages, etc.) can be permanently recorded and shared with others.106 However, it is much more difficult to record the exact nature of direct in-person or live telephone conversations.107 The possibility of review of the actual advertisements under Rule 7.2 is likely to help guard against false and misleading: advertisements, while the difficulty in reviewing an in-person or live telephone conversation might encourage lawyers to make false and misleading statements.108 In much the same way, it is difficult to preserve an accurate record of a real-time electronic contact with a prospective client.109 Thus, the change in Rule 7.3 recognizes that the similarity between in-person or live telephone contact and real-time electronic contact means that the possibilities of abuse that exist with the first two might also exist with the third and that such contact should likewise be prohibited.110

The Ethics 2000 changes to Rule 7.3(c) were also made because of the recognition that solicitation through e-mail is in some ways analogous to solicitation by letter or recorded telephone message.111 The old version of 7.3(c) required that “every written or recorded communication from a lawyer soliciting professional employment from a prospective client known to be in need of legal services in a particular matter shall include the words ‘Advertising Material’ on the outside envelope and at the beginning and ending of any recorded communication.””2 The motivation for this requirement was that the prospective client, unaccustomed to receiving such communications, might be frightened and confused, especially given their likely vulnerable emotional state.113 It is no great stretch to assume that such fear and confusion might also be caused by an unsolicited e-mail from a lawyer. The assurance that such a communication is simply an advertisement would likely cure such problems. Because of the similarities between the previously prohibited contact and the new, Internet-based method, both are likely to raise the same ethical issues and are justifiably now subject to the same regulations.114

However, the simple addition of the phrase “electronic communication” to the previously existing list of regulated media once again ignores the fundamental nature of the Internet. The Ethics 2000 changes make no reference to spam and the unique problems spam presents. While the “regulation-by-analogy” approach is laudable for its attempt to regulate the marketing of legal services via the Internet by examining the Internet’s similarities to previously existing media, this approach only provides half the answer. As previously mentioned, the Internet is a unique creation.115 As such, Internet regulation with regard to lawyer advertisement requires a recognition how it is both similar and different to previously existing media.

V. POSSIBLE INTERNET-BASED CHANGES TO THE MODEL RULES

A. SPAM

Because of the problems specific to the widespread use of spam, there is good reason to believe that the use of spam to solicit clients should be prohibited. This change would recognize that spam is not analogous to a regular mail solicitation because of the potentially huge cost to the recipient and third parties.116 An effective way of working this prohibition into the current rules would be to add e-mail to the list of prohibited forms of contact in Rule 7.3(a). An additional comment detailing the costs imposed on the recipients of spam and third parties could also be added.

This prohibition would most likely be permissible under the First Amendment. Applying the Central Hudson test, we must first must decide if the spam would be considered false or misleading.117 As previously mentioned, a lawyer could send completely accurate and non-misleading spam. second we must ask if the government interest is substantial.118 The government does has a substantial interest in protecting Internet service providers and consumers from having to waste time and money dealing with spam. Third, we determine whether the governmental interest is furthered by the regulation.119 The interest in protecting consumers from incurring costs from spam would certainly be furthered by prohibiting lawyers from sending it. Finally, we must decide if there is a reasonable fit between the government interest and the regulation.120 Prohibiting lawyers from sending spam reasonably fits with the government’s interest in protecting consumers. Thus, the spam ban would probably pass constitutional muster.

B. WEB SITES AND SEARCH ENGINES

The ability to change web sites without much cost creates a responsibility on the part of a lawyer with regard to the information he or she expresses on the Internet. If a lawyer makes a communication on his or her web site that was not originally false or misleading under Rule 7.1 but becomes so when circumstances change, the lawyer should be required to correct the information. Rule 7.2 should make clear that lawyers must regularly check their web sites for information that has become false or misleading. In the event that some information becomes false or misleading, the lawyer should be required to exercise reasonable care to correct the problem. Model Rule 5.3 (Responsibilities Regarding Nonlawyer Assistants) requires a lawyer to make reasonable efforts to ensure that the conduct of their nonlawyer assistants is compatible with the professional obligations of the lawyer, and to take reasonable remedial action if it is not.121 Law firms should be required to also hold the designers of their web sites to this standard.

To deal with the problems of artificially increasing web search engine relevancy scores through misleading keyword stuffing, invisible keyword stuffing, and meta-tags, an amendment should be added to Rule 7.1. This amendment should prohibit misleading communications, even if they are not readily apparent.l22 A comment could be included stating that the use of the name of a lawyer unaffiliated with the firm responsible for the web site, the mention of a practice area the firm or lawyer does not participate in, and the repetitious use of otherwise acceptable words through meta-tags or invisible keyword stuffing would all be examples of such communications.

C. GLOBALREACH

Rule 8.5(b) should be amended so that any advertising on the Internet is governed by the rules of the jurisdiction in which the lawyer was present while creating the advertisement. This change would provide certainty for the lawyer and remove the burden of trying to figure out where the predominant effect of action on the Internet would take place.

CONCLUSION

The growth of the Internet has created a world of unprecedented connection. The Internet should be used as a powerful tool to provide the public with information about legal services. However, instead of treating the Internet as simply another medium of communication, albeit an extremely powerful one, the Model Rules should recognize that the Internet’s unique nature also creates unique challenges. A blend of the traditional methods of regulating the marketing of legal services and an understanding of these unique challenges is required to effectively advance the goals of pursuing the administration of justice and maintaining respect for the practice of law.

CHRISTOPHER HURLD*

* J.D., Georgetown University Law Center (expected May 2005); B.A., Bates College, 2000. The author would like to express his heartfelt thanks to his family and friends for their incredible support.

Copyright Georgetown University Law Center Summer 2004

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