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Commonwealth of Massachusetts


January 1999

TANGLED WEB: Advertising, Solicitation, Ethics, and the Internet

by Constance V. Vecchione

First Assistant Bar Counsel

On November 19, 1998, the Supreme Judicial Court’s Advisory Committee on Lawyer Advertising submitted its draft report to the Court. The report, among numerous other proposals, attempts to update the language of the Mass. R. Prof. C. 7.1 to 7.5 to clarify that electronic and computer-accessed advertising and solicitation are covered, and, in comments to the rules, to provide guidance as to how the rules apply to issues raised by these forms of marketing.

Until the advertising committee’s report is acted upon by the Court, however, the Massachusetts Rules of Professional Conduct do not explicitly address lawyers’ conduct on-line. Nonetheless, in most instances the rules can be applied to Internet communications by the simple expedient of analogizing to the low tech or hard-copy equivalent.

Any communication by an attorney, in whatever form and whatever the technology, is subject to Mass. R. Prof. C.  7.1, 7.2, 7.4, and 7.5. Mass. R. Prof. C. 7.1 prohibits use of a communication containing a false or misleading statement or claim. Mass. R. Prof. C.  7.5 is to similar effect as to firm names, letterhead, or other professional designation.

Mass. R. Prof. C. 7.2 requires the communication to contain the name of the responsible lawyer or law firm and includes a new requirement that a copy or recording of an advertisement or communication be retained for two years. Because of its interstate nature, and to avoid misleading out-of-state viewers as to whether the lawyer is licensed in their jurisdiction, it is preferable that an on-line communication also include the office address and, very importantly, information on bar admissions of the firm members. Similarly, an on-line communication probably should comply with the ethics rules on advertising in all states in which the lawyer or firm members are licensed.

Mass. R. Prof. C.  7.4 is the specialization rule. It permits lawyers to hold themselves out publicly as specialists, if true, and includes in this term any claim of expertise, any claim to concentrate in or limit practice to a certain field, any directory listings (such as the Yellow Pages) by field, and "any other association of the lawyer’s name with a particular field of law." Thus, even without any express assertion of expertise, "Mary Smith, Esq.; real estate and personal injury," constitutes a claim of specialization. There are additional requirements for claiming certification by a private organization. This rule obviously applies in its entirety to on-line communications. Lawyers engaging in marketing on the Internet should exercise care either to offer their services only in fields in which they are in fact specialists or to include appropriate disclaimers.

Finally, Mass. R. Prof. C.  7.3 is the solicitation rule. The terms "solicitation" as used throughout the disciplinary rules contemplates communications directed at specific individuals or groups for the purpose of obtaining business or securing employment. Subject to limitations concerning the prospective client’s physical, emotional or mental condition, solicitation by written communication, audio or video cassette, or other electronic materials is permitted if clearly labeled "advertising" on its face and on the envelope or container and if copies are retained for two years. No in-person communication, or personal communication by telephone or electronic device, is permitted. Again, this rule clearly applies without difficulty to the Internet. Targeted electronic communication is allowed if labeled "advertising" and if not live or interactive but, with some exceptions, "real time" conversations may be prohibited.

Application to specific types of on-line communications

A Web site or home page generally does not involve live or interactive communication. Further, the contact is not unsolicited; the user who visits the site has chosen to do so. The same would seem to be true even if the site is or can be customized according to input from the visitor. Such communications are clearly permissible, and--although the communication obviously cannot be false or misleading and must comply with the specialization and retention rules-- need not be labeled advertising.

Similarly, unsolicited postings to newsgroups seeking employment would seem to be similar to newspaper or magazine ads. If so, such postings are permissible and need not be labeled advertising. Note, however, that this type of message to a newsgroup with a particular interest or purpose almost by definition constitutes a claim of specialization, much like a directory listing by field of practice. Only lawyers who qualify as experts should market in this manner.

A further question is whether lawyers may respond to newsgroup postings by individuals with legal questions. To the extent that the lawyer’s response--even if "addressed" to the individual-- is a public notice, open to any reader, it again would seem to be permissible if true and would not seem to be required to be labeled as advertising. However, lawyers and law firms should exercise caution in responding to such postings if the underlying matter arises in a jurisdiction where no firm member or associate is admitted to practice. A response in that circumstance may raise questions of unauthorized practice of law in violation of Mass. R. Prof. C. 5.5(a). In addition, lawyers need to consider issues of confidentiality or screening for conflicts of interest and the problem of when an attorney/client relationship is established.

Communications by e-mail to or on behalf of existing clients raise questions of protecting client confidentiality. The trend among jurisdictions that have recently considered the e-mail issue seems to be that it is not a violation of client confidentiality to send confidential client communications by unencrypted e-mail and that the lawyer need not obtain the client’s consent to do so. See District of Columbia Bar Legal Ethics Comm., Op. 281, 2/12/98, released 5/15/98. It may nonetheless be wise to encrypt particularly sensitive communications, for example, those that the lawyer would hesitate to transmit by fax or even telephone.

Unsolicited e-mail communications to prospective clients are equivalent to direct mail solicitation and must be clearly labeled as "advertising" and retained for two years. Lawyers soliciting by e-mail should pay particular attention to the provisions of Mass. R. Prof. C. 7.3 prohibiting harassment or coercion and forbidding communications with prospective clients who the lawyers knows or reasonably should know are not in physical, emotional, or mental condition to be solicited.

Finally, there is the issue of "real time" chat groups. A forum that has been set up by a lawyer or law firm to allow consumer inquiries--that is, the consumers are asking to "speak" with the law firm--is probably no different than a telephone call from a potential client or perhaps a radio call-in show. Such a forum is therefore in theory permissible, although again, serious attention will need to be paid to problems such as unauthorized practice, confidentiality, and screening for conflicts, as well as to the question of when an attorney/client relationship is established. However, unsolicited messages from lawyers sent to "real time" chat groups are easily analogized to in-person or live telephone communication. This type of communication is prohibited if the content could be construed as a solicitation.

Whatever the mode of contact, lawyers communicating with clients or prospective clients on-line would also be well-advised to consider including a disclaimer beyond those specifically required by the Rules of Professional Conduct. An e-mail disclaimer might be similar to those usually associated with faxes--for example, a warning that the recipient should not read, copy or disseminate unless he or she is the addressee, with a further statement as to confidentiality or privilege and a request that the recipient notify the sender if the communication is received in error. Typical Web page and newsgroup disclaimers may contain information as to where the lawyers in the firm are licensed or statements that the information provided is not legal advice and/or that no attorney-client relationship has been created or will be created until a contract is signed. These disclaimer suggestions are not intended as exhaustive.

 



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