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Wednesday April 12, 2000
Published in Chicago Daily Law Bulletin
Ethical Duties Remain Unclear In Online Realm:
Rules of Law
by Michael L. Shakman
What rules of legal ethics and professional conduct govern a law firm's web site?
Not surprisingly, there is no complete or clear answer to the question.
A 1996 ISBA Ethics Opinion concluded that a web page is a “public medium,” like a yellow page listing. ISBA Opinion 96-10. As a result it seems likely that Illinois lawyers who comply with Illinois Rule of Professional Conduct 7.2 (which applies to lawyer advertising in “public media” including telephone directories) can have web pages devoted to their firm. That Rule requires, however, that the lawyer keep a copy or recording of the advertisement or written communication -- which in web page context probably means the text of the web page -- for three years, “along with a record of when and where it was used.”
Does record of use mean that a law firm must record every “hit” on the page and retain that information for three years? What about listing other web sites that are linked to it? There is no answer to the questions, although it is doubtful that most Illinois law firms using web pages maintain such records.
Suppose the web page is interactive, as many nonlegal web sites are. Suppose a lawyer’s web site permits the public to pose questions and to obtain answers? Is the web page still like a listing in the Yellow Pages? You can’t ask the Yellow Pages a question and get an answer.
The one subsequent Illinois ethics opinion that discusses web pages, ISBA Opinion 97-06, reiterates that the internet is a “public medium” and not akin to advertising circulars or letters to prospective clients, but also suggests that there may be limits to that characterization: “The Committee believes there is little dispute that the internet is a public medium. Conversely, the Committee believes that lawyer participation on a one-on-one basis with internet users via electronic bulletin boards, chat groups or similar services might implicate Rule 7.3 governing direct or private solicitation.” This would mean that each communication must be “plainly labeled as ‘advertising material’.”
The more interactive the web page, the less it is like a Yellow Page listing, and the more it resembles a chat group, triggering the need to label it as advertising.
Rule 7.3 may provide a way around these concerns for non-interactive web sites. Rule 7.3 only applies to lawyers who "solicit professional employment" in person, by telephone, letter "or by other communication directed to a specific recipient." There is little doubt that most law firm web pages in effect "solicit professional employment." But are they "directed to a specific recipient?" It may depend upon whether or not they are interactive, and what content they provide.
If they are merely informational -- providing data about the firm’s practice areas, biographies of lawyers, and the like, it is difficult to see how they are "directed to a specific recipient." But if they are interactive, accept questions from members of the public and respond to them, then it would not be surprising to read in a future ethics opinion that they are to be treated as direct contacts with prospective clients, and thus another form of advertising. That sort of web page is hard to distinguish from the bulletin boards and chat groups discussed in Opinion 97-06.
Recently an Ohio Supreme Court ethics panel concluded that interactive web sites are permissible, but must comply with all the ethical guidelines for establishing and maintaining a lawyer-client relationship, including obtaining all information needed to perform a conflict check, insuring that confidences are preserved, complying with advertising rules, not involving a joint business effort between a lawyer and non-lawyer, and informing the client if the on-line and e-mail format is not adequate to address the client’s needs. (Ohio S. Ct. Board of Commissioners on Grievances and Discipline, Opinion. 99-9 of 12/2/99; 15 ABA/BNA Lawyers’ Manual on Professional Conduct 624.)
Even if Illinois’ rules on the subject are clear enough and lead to the conclusion that the average web page is not subject to the rules that apply to lawyer advertising, what happens if other states take a different approach?
Florida, for example has concluded that “a lawyer’s Internet web site is accessed by the viewer upon the viewer's initiative and, accordingly, the standards governing such communications correspond to the rules applicable to information provided to a prospective client at the prospective client's request.” (Amendments to Rules Regulating the Florida Bar -- Advertising Rules, Fla. No. 92,297, 12/17/99.) This means that the law firm must provide "a factual statement detailing the background, training, and experience of each lawyer or the law firm" and "if the lawyer or law firm claims special expertise . . . , written information setting forth the factual details of the lawyer's experience, expertise, background, and training in such matters."
Texas also takes a different view: “Certain publications on the Internet or similar services are public media advertisements” subject to Texas’ advertising rules. Part 7, Texas Disciplinary Rules of Professional Conduct, Interpretive Comment No. 17 (A-B). Texas even breaks down the contents of the web page, concluding that some parts (such as news articles, expressions of opinion and lawyer biographical data) are not primarily concerned with solicitation, and therefore don't have to be filed with the bar regulatory authority. Illinois Rules don’t provide for filing and clearance at all.
What is a law firm to do if it has offices in Illinois, Florida and Texas? Or if it has offices only in Illinois, but its web page is accessed by Texas or Florida residents who contact the firm? Should it try to comply with all the requirements of each state? That would likely be impossible. Would doing so present an unreasonable burden on interstate commerce? Is a law firm that responds to Web site questions from another jurisdiction practicing law there and could its actions be the unauthorized practice of law?
Again, there are no clear answers, although several alternative approaches are suggested in a valuable ABA/BNA publication, Rogers, “How Do Advertising Rules Apply To Lawyers On the ‘Net’?”)
The bottom line is that these issues are complex, have yet to be fully developed through ethics opinions or judicial decision, and are bound to be the subject of both before long.
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