Lawyer and law firm web pages as advertising: proposed guidelines

I. INTRODUCTION

Currently, there are no uniform standards designed specifically to regulate lawyer communications on the Internet. Each state and each federal district court is free to promulgate its own rules of professional conduct. (1) Each federal court can adopt the rules of ethics for the state in which it is situated, develop its own set of rules or choose not to develop any local rules to govern professional conduct. (2) For example, without uniform standards, lawyers and law firms advertising through websites accessible to the general public risk violating ethics rules in numerous states, thereby becoming subject to civil and criminal penalties in multiple jurisdictions and possible disciplinary proceedings. (3) Even if the proposed Model Rules of Professional Conduct (“Model Rules”) are adopted, it is very unlikely that each of the fifty states will adopt these Rules. The states that do adopt the Rules will likely do so with modifications.

The following scenario demonstrates the need for clear uniform guidelines to govern lawyer communications on the Internet. Ms. Able, licensed to practice law in Pennsylvania, launches an Internet (4) website to provide personal information, including her biographical profile, as well as professional information, such as her practice areas, office address, telephone number, and other information. Visitors to the website can communicate with Ms. Able through e-mail and real-time electronic communication, or “chat rooms.” Ms. Able’s website complies with Pennsylvania’s ethics rules governing lawyer advertising. Among the visitors to the site are two non-lawyers: one who resides in Florida and one who resides in Minnesota. Both are in search of a lawyer to represent them in separate, unrelated personal injury actions in Florida and Minnesota.

As these visitors are from Florida and Minnesota, should Ms. Able’s website comply with Florida and Minnesota regulations governing lawyer advertising and solicitation? Does Ms. Able’s website constitute an offer to render legal services to Florida and Minnesota residents? Since Ms. Able’s website can be accessed from each of the fifty states, must the website comply with regulations governing lawyer advertising in each state? Is Ms. Able subject to sanction or civil and criminal penalties for failing to comply with ethical rules governing advertising, solicitation and the unauthorized practice of law in those jurisdictions where she is not admitted to practice law? No uniform guidelines specifically govern lawyer communications and conduct on the Internet. Consequently, Ms. Able’s website may potentially violate regulations governing lawyer advertising, solicitation and the unauthorized practice of law in other jurisdictions, thereby subjecting her to civil and criminal penalties, and possible sanctions in Pennsylvania, the jurisdiction in which she is admitted to practice law. (5)

A separate set of ethical issues is raised if Ms. Able communicates with non-lawyer potential clients using chat rooms. (6) Is such communication considered advertising, which is permissible, or is it considered solicitation, which is prohibited? (7) Generally, as discussed in Part III B, lawyer participation in real-time electronic communication is analogous to direct, in-person solicitation and, therefore is prohibited.

This Article reviews some of the ethical issues raised by lawyer and law firm advertising via websites. In addition, the Article considers the extent to which such websites must comply with advertising rules governing lawyers in every jurisdiction in which the advertising may be accessed. Further, it also considers the potential for civil and criminal liability if the information contained on websites for lawyers and law firms fails to comply with state rules regulating lawyer advertising. Finally, the Article proposes uniform guidelines for lawyer and law firm websites. These guidelines should demonstrate good faith compliance with conflicting advertising regulations, thereby creating a “safe harbor” from sanctions for inadvertent and unavoidable violations of the various irreconcilable state rules governing lawyer advertising. (8) The proposed guidelines, though not exhaustive, provide a framework to develop additional guidelines that should add even more clarity and certainty to the ethical parameters of lawyer and law firm communications on the Internet. The need for these qualities will become more evident as lawyers in each state rely more heavily upon the Internet as a means of delivering information and legal services.

Historically, each state’s bar examiner’s committee establishes the requirements for admission to its bar and sets the standards to regulate the conduct of lawyers admitted to practice within its jurisdiction. (9) Within each state’s jurisdiction is the regulation of lawyer communications with non-lawyers, including advertisements. (10) Although lawyer regulations should protect the public interest rather than the “parochial or self-interested concerns of the bar[,]” (11) some “[c]ritics have charged that the unacknowledged purpose of restrictions on the practice of law within a state by persons who have not been licensed in that state is to institute and protect a monopoly for the benefit of the lawyers licensed there.” (12)

The advent of the Internet as a means of mass communication has expanded communications between lawyers and non-lawyers to global proportions, with no geographical limitations. (13) The Internet provides lawyers with the unique opportunity of marketing legal services on the “World Wide Web” (14) to virtually the entire planet. Internet websites are easy, effective, cost-efficient means of providing legal services to anyone with access virtually anywhere in the world, twenty-four hours a day. (15) Other advantages of lawyer websites include advertisement, (16) enhancement of the firm’s image as “cutting edge,” dissemination of information about the firm’s practice areas, creation of unlimited 24-hour a day accessibility, dissemination of general information to the public, delivery of information concerning lawyers’ pro bono services, dissemination of newsletters and articles, access to pleadings for existing clients, recruitment, (17) advertisement of and access to continuing legal education courses, (18) facilitation of legal research, including court and agency opinions, (19) the filing of court documents, (20) transmission of e-mail, (21) and circulation of class action lawsuit notices. (22)

According to a recent American Bar Association survey on the use of technology in delivering legal services, approximately seventy percent of lawyers in large law firms and more than fifty percent of lawyers in small firms use the Internet for e-mail and research. (23) Additionally, more than fifty percent of large firms and more than ten percent of small firms use the Internet to market legal services. (24) At least one commentator suggests that in this age of emerging technologies, lawyers must become proficient in legal research on the Internet or risk potential liability for malpractice. (25) Lawyers’ and law firms’ use of the Internet to market legal services, however, raises the question of how ethics rules governing advertising, solicitation, conflicts of interest, confidentiality, competence, inadvertent creation of attorney-client relationships, unauthorized practice of law, and other jurisdictional issues will apply. (26) Since lawyer and law firm websites may be accessed in every U.S. and international jurisdiction, marketing legal services on the Internet is fraught with the risk of violating ethics rules regulating lawyers’ conduct in advertising and soliciting prospective clients in each of those jurisdictions. (27)

Which jurisdictional rules of professional conduct apply to lawyer and law firm websites? (28) Despite the explosive growth in the number of lawyer and law firm websites on the Internet, no uniform standards currently govern lawyers’ conduct on the Internet. (29) Neither the Model Rules nor the Model Code expressly addresses lawyers’ use of technological advances in electronic communication.

II. LAWYER ADVERTISING IS COMMERCIAL SPEECH

A. Lawyer Advertising, Pre-“Bates”

Historically, as the U.S. Supreme Court stated in 1977, “the ban on [lawyer] advertising originated as a rule of etiquette and not as a rule of ethics.” (30) This rule of etiquette evolved because “[e]arly lawyers in Great Britain viewed the law as a form of public service, rather than as a means of earning a living, and they looked down on ‘trade’ as unseemly.” (31) From the colonial period through the early nineteenth century, American lawyers were not expressly prohibited from advertising to attract clients. (32) Like other professions during that period, the legal practice was considered to be primarily a public service. Advertising by lawyers was disdained as “undignified.” (33) As the number of lawyers in America increased in the middle to the late nineteenth century, competition for clients and the amount of legal advertising also increased. (34) However, there were no national uniform standards to regulate lawyer conduct or legal advertising. (35)

In an effort to regulate the significant increase in legal advertising and to establish a set of standards for the conduct and communication of lawyers, the ABA adopted the Canons of Professional Ethics in 1908. (36) Most jurisdictions in the United States adopted the Canons in whole or in part. (37) The Canons expressly prohibited legal advertising and solicitation, (38) thereby providing the precedent for the states’ and the ABA’s proscription of legal advertising and solicitation over the subsequent seventy years. (39) Like other advertising in the early and the middle twentieth century, advertising by lawyers was deemed commercial speech and, thus did not enjoy much, if any, First Amendment protection. (40)

In 1969, the ABA replaced the Canons with the Model Code of Professional Responsibility. (41) As initially promulgated, the Model Code completely proscribed lawyer advertising on television, and targeted mail solicitation and any form of “undignified” advertising. (42) The Model Code essentially consisted of two tiers: ethical considerations and disciplinary rules. (43) The Code, as amended, included twenty-five permissible categories of information that lawyers could include in written advertisements concerning the lawyers’ services. These categories included a lawyer’s name, fields of practice, dates and places of admission to state and federal bars, fees for initial consultation, and range of fees for services. (44)

B. Lawyer Advertising and “Bates”

A test of the states’ authority to completely ban lawyer advertising came in Bates v. State Bar of Arizona. (45) In Bates, the U.S. Supreme Court extended partial First Amendment protection to advertising by licensed lawyers. (46) Bates involved an Arizona State Bar Association disciplinary rule (47) restricting advertising by attorneys. (48) Specifically, the Court considered two issues: whether sections 1 and 2 of the Sherman Act (49) prohibited state regulation of lawyer advertising, and whether imposing and enforcing the Arizona rule violated the First Amendment. (50)

The appellants in Bates, two lawyers admitted to the Arizona Bar, opened a law office which they called a legal clinic, and placed an advertisement in a daily newspaper of general circulation in their metropolitan area. (51) The advertisement listed the types of matters the lawyers handled, such as uncontested divorces and adoptions and the fees the lawyers charged for these matters. The advertisement also stated that the lawyers provided “legal services at very reasonable fees[.]” (52)

Following a hearing on the complaint initiated by the president of the State Bar, a special local administrative committee recommended that the lawyers “be suspended from the practice of law for not less than six months.” (53) Pursuant to Arizona Supreme Court Rule 36, the Board of Governors for the State Bar reviewed the committee’s recommendation and determined that a one-week suspension for each appellant, to run consecutively to one another, was an appropriate sanction. (54)

On appeal to the Arizona Supreme Court, the lawyers contended that DR 2-101 (B) violated sections 1 and 2 of the Sherman Act and that the disciplinary rule infringed their First Amendment rights. (55) The court, however, concluded that the regulation was exempt from the Sherman Act and did not violate the lawyers’ First Amendment rights . (56)

The U.S. Supreme Court agreed that the lawyers’ Sherman Act claim was barred. (57) However, the Court reversed the Arizona Supreme Court on the First Amendment claim and held that although the state may impose certain limitations on advertising by licensed lawyers, it may not subject lawyer advertisements to “blanket suppression.” (58) The U.S. Supreme Court has stated that commercial speech is an “expression related solely to the economic interests of the speaker and its audience.” (59) Emphasizing that lawyer advertising is a form of commercial speech, the Bates Court held that “truthful advertisement concerning the availability and terms of routine legal services … may not be restrained.” (60)

Prior to analyzing the legal issues presented in Bates, the U.S. Supreme Court set forth a detailed summary of its decision from the preceding term in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, (61) which concerned advertising by licensed pharmacists. (62) In Virginia State Board of Pharmacy, the Court held that a Virginia statute subjecting pharmacists to a monetary penalty or suspension or revocation of their licenses for advertising prescription drug prices violated the First Amendment. (63)

Relying on the Supreme Court’s reasoning in Virginia State Board of Pharmacy, the Bates Court reiterated the important role of commercial speech and the free flow of information to consumers and society: “[C]ommercial speech serves to inform the public of the availability, nature, and prices of products and services, and thus performs an indispensable role in the allocation of resources in a free enterprise system … [S]uch speech serves individual and societal interests in assuring informed and reliable decision-making.” (64) The Virginia State Board of Pharmacy Court expressly declined to consider the question of whether its rationale applied to advertising by other professions such as lawyers and physicians. (65) Nonetheless, pursuant to the standard commercial speech doctrine, it remained clear that states could freely regulate false, misleading or deceptive advertising and in-person solicitation. (66)

C. Lawyer Advertising Post– “Bates”

Following the Bates decision, it was indisputable that lawyer advertising is a form of commercial speech and that states could regulate lawyer advertising to protect their consumers against false, misleading and deceptive advertising but could not completely ban lawyer advertising. (67) Non-commercial speech, with few exceptions, enjoys full protection under the First Amendment. (68) In contrast, commercial speech enjoys only partial protection under the First Amendment. (69) Thus, with little guidance from the Court, states and the ABA were forced to promulgate new regulations for lawyer advertising consistent with Bates. (70)

In 1983, in an effort to create a national standard for legal ethics, the ABA replaced the Model Code with the Model Rules of Professional Conduct (the “Model Rules”). (71) Furthermore, the ABA urged states to adopt the Model Rules. (72) Since the Model Rules’ promulgation in 1983, the District of Columbia and 42 states have adopted some version of the Rules. (73) A few states continue to follow some version of the Model Code, while California lawyers are regulated by a completely different system. (74) Only 9 of the 43 jurisdictions that have adopted the Model Rules have done so without modification. (75) The remaining 34 jurisdictions have adopted the Model Rules after modification. (76)

There have been significant differences in the versions of Model Rules adopted by the states. (77) This lack of uniformity has been compounded further by the numerous ABA amendments made to the Model Rule between 1983 and 1997. (78) However, at least one commentator has argued that, with the exception of the provisions governing advertising, solicitation and client confidentiality, there is little difference among the state rules. (79) The fact that the rules governing advertising and solicitation vary dramatically from state to state, merely bolsters the argument in support of uniform standards. The Model Rules, as drafted, did not contemplate Internet advertising but were intended to govern printed advertising. (80) Nonetheless, the manner in which the Model Rules treat printed advertising is instructive and offers a basis for developing uniform guidelines in lawyer advertising via electronic communication, including Internet websites.

In July 1998, the ABA Commission on Advertising released a report entitled A Re-Examination Of The ABA Model Rules of Professional Conduct Pertaining to Client Development in Light of Emerging Technologies (“ABA White Paper”) to address some of the ethical issues raised by the use of electronic communication to disseminate information concerning lawyers’ services. (81) The focus of the ABA White Paper is lawyers’ use of the World Wide Web and e-mail. (82) The ABA White Paper considers the Internet as a medium increasingly used to deliver legal services and concludes that “in light of new and emerging client development initiatives undertaken through various aspects of the Internet demonstrates a need to revise those portions of the rules that govern these activities.” (83) While acknowledging its stated purpose of generating dialogue on the issues discussed, the White Paper closes with recommendations to modify the rules governing lawyer communications to encompass use of emerging technologies in delivering legal services. (84)

Since the decision in Bates, the U.S. Supreme Court has defined commercial speech as “an expression related solely to the economic interests of the speaker and its audience” (85) and has emphasized that “speech that does no more than to propose a commercial transaction is protected by the First Amendment.” (86) “Commercial speech that is not false or deceptive and does not concern unlawful activities, however, may be restricted only in the service of a substantial governmental interest, and only through means that directly advance that interest.” (87) Where non-commercial speech is intertwined with commercial speech, it is unclear whether courts will give the communication full First Amendment protection. (88) Where possible, the court will separate non-commercial speech from commercial speech. (89) Where the communication is inextricably intertwined courts may grant full First Amendment protection (90) in some cases and only partial protection (91) in others. With respect to lawyer and law firm websites, parts of the sites may be purely informational while the remainder may propose a commercial transaction. However, “It]hose aspects that are not commercial are unlikely to elevate those which are to full First Amendment protection as long as the information can be segmented.” (92)

Among the recommendations in the ABA White Paper is the suggestion that Model Rule 7.1 be modified to address confusion created concerning application of that rule to commercial versus non-commercial speech by deleting the reference to “information about the lawyer” and retaining “information about the lawyer’s services.” (93) The Commission further suggests that the comment to this section be modified to include a definition of commercial speech and a standard for intertwined speech clarifying “that if it is inextricably intertwined, it will enjoy full First Amendment protection, but if it is merely intertwined, the entire communication will be regulated as commercial speech.” (94) Alternatively, the Commission suggests that the dichotomy between commercial and non-commercial speech can be clarified by developing a preamble to Section Seven of the Model Rules. (95) Even if the ABA were to adopt these measures to clarify the definition of commercial, however, states remain free to define commercial speech as they choose, so long as their definition comports with that of the U.S. Supreme Court.

D. Ethics 2000 Report and Proposed Changes to Lawyer Advertising Rules

More recently, the ABA Commission on Evaluation of the Rules of Professional Conduct completed a multi-year study of the Model Rules. (96) Commencing in 1997, the ABA sought to address the lack of uniformity in state regulation of lawyers, as well as the lack of clarity and substantive problems in the Model Rules. (97) The ABA also attempted to address some of the issues presented by emerging technology in the practice of law. (98) The Commission analyzed rules governing professional conduct in state and federal jurisdictions and formulated recommendations for adoption, the final draft of which was issued in January 2001. (99) For the first time, the ABA included in its proposed revisions to the Model Rules (“proposed Model Rules”) a specific reference to electronic communication as an acceptable means for lawyers to communicate with non-lawyers, including advertising. (100)

In August 2001, during its annual meeting in Chicago, the ABA House of Delegates (101) began to consider the Commission’s proposed changes to the Model Rules. (102) Members of the House of Delegates must consider and take action on approximately 50 proposed changes to the Model Rules before the Ethics 2000 Report can be formally adopted at which time these rules, as revised, become official ABA policy. (103) In the meantime, however, the House of Delegates took action on a few of the Commission’s proposed revisions and will continue its deliberations at the midyear meeting in Philadelphia later in 2001. (104) Some of the proposals adopted thus far shed light on the likely direction of the House of Delegates’ work.

1. Proposed Model Rule 7.1–Communications Concerning Lawyer’s Services

With respect to communications concerning legal services, proposed Model Rule 7.1 expressly prohibits a lawyer from making a false or misleading communication. (105) The rule further provides that “[a] communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.” (106) Currently, ethical rules in all 50 states prohibit false and misleading advertising.

2. Proposed Model Rule 7.1–Advertising

Subsection (a) of proposed Model Rule 7.2, which governs advertising, provides that a lawyer may advertise legal services through “written, recorded or electronic communication, including public media.” (107) Here, it appears that the Commission has explicitly expanded the scope of the rule by including “electronic communication” rather than relying on the “catch-all” category of public media. (108) Subsection (b) of proposed Model Rule 7.2, in substance, is identical to current Model Rule 7.2(c), which permits a lawyer to pay reasonable costs for advertising, or usual charges in connection with non-profit lawyer referral services or legal services organizations. (109) The requirement that lawyers retain copies of all advertisements for two years is omitted from the proposed Model Rules. (110) As emerging technology is increasingly used to advertise legal services, lawyer and law firm communications are accessible in jurisdictions where they do not maintain an office. (111) Under these circumstances, the record retention requirement for a reasonable period of time should be retained.

Comment 2 of proposed Model Rule 7.2 sets forth a list of information that may be included in legal advertising:

This Rule permits public dissemination of information concerning a lawyer’s name or firm name, address and telephone number

Proposed Model Rule 7.2(c) mandates that “[a]ny communication made pursuant to this rule shall include the name and office address of at least one lawyer or law firm responsible for its content.” (113) These disclosures will enable disciplinary authorities to locate persons responsible for the advertisement and to inform the public of the lawyer’s or law firm’s office location. (114) In comment 3 to Proposed Model Rule 7.2, the Commission acknowledges the subjective nature in determining whether a particular advertisement is dignified and effective. The Commission also recognizes that television and, for the first time, the Internet are important media to deliver information and legal services to the public. (115)

3. Proposed Model Rule 7.3–Direct Contact with Prospective Clients

With respect to in-person solicitation of prospective clients, the U.S. Supreme Court has upheld state regulations restricting direct solicitation of prospective clients known to have been in need of legal services for a particular matter. (116) Proposed Model Rule 7.3(a) provides that 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….” (117) The Commission, in agreement with the ABA Commission on Responsibility in Client Development, distinguishes real-time electronic communications such as Internet chat-rooms from e-mail on the basis that real-time communications present the same dangers as live telephone contact. (118)

When targeting solicitations for legal services to prospective clients, a lawyer must identify the communication as “Advertising Material” either on the outside of the envelopes, or at the beginning and ending of “any recorded or electronic communication,” unless the persons targeted fall within a class of persons identified in subsections (a)(1) and (a)(2). (119) Restricting a lawyer’s direct in-person, telephone or real-time electronic contact with prospective clients is necessary to avoid undue influence and over-reaching and is consistent with the U.S. Supreme Court’s view of in-person solicitation. (120)

4. Proposed Model Rule 7.4–Communication of Fields of Practice and Specialization

Proposed Model Rule 7.4 permits a lawyer to state that he is a certified specialist in a particular field of law if the “certification is granted by an organization approved by an appropriate state authority or accredited by the American Bar Association or another organization, such as a state bar association, that has been approved by the state authority to accredit organizations that certify lawyers as specialists.” (121) A lawyer may indicate that he is certified as a specialist in a particular field of law only if he has been certified by an organization authorized to grant certification or by an organization that has been accredited by the ABA. (122) The lawyer must clearly identify the name of the certifying organization in the advertisement. (123)

5. Proposed Model Rule 7.5–Firm Names and Letterheads

Pursuant to Proposed Model Rule 7.5, which governs firm names and letterheads, a law firm’s website address is a professional designation that must comply with Proposed Model Rule 7.1. (124) Proposed Rule 7.5 would require a lawyer to provide a street address, and not merely a post office box or a “virtual location” to identify the location of his office. (125) The purpose of this requirement is twofold: (1) it informs prospective clients of a lawyer or law firm’s physical location, and (2) it enables disciplinary authorities to locate the lawyer(s) responsible for the advertisement. (126) The comment to this section provides for the first time that a “lawyer or law firm may also be designated by a distinctive website address or comparable professional designation.” (127)

The Minority Report of the Commission disagrees with several of the recommendations in the Ethics 2000 Report. (128) The Minority Report takes the position that the proposed changes to the Model Rules do not provide adequate protection for either clients or the public interest. (129) For example, the Minority Report objects to Proposed Model Rule 1.10, which addresses involuntary screening when a lawyer leaves one firm and joins an adversary firm, and Rule 1.6, which addresses permissive disclosures of confidential client information. (130) Although the specific objections raised concerning the proposed changes to the Model Rules are unrelated to the advertising rules, the Minority Report’s admonition that the Commission must be more vigilant and conscientious in protecting the public interest should overlay the framework in drafting guidelines for lawyer Internet communications. (131)

III. LAWYER AND LAW FIRM WEB PAGES, GENERALLY, ARE ADVERTISING

A. Lawyer and Law Firm Web Pages Must Comply With Ethical Rules Governing Advertising For All States In Which They Are Admitted To Practice

In most instances, a website maintained by a lawyer to disseminate information about the lawyer or his services constitutes advertising (132) because such websites essentially propose commercial transactions to prospective clients. (133) Consequently, such communications constitute advertising. Courts, generally will not distinguish between types of print advertising. (134) Prior to the ABA’s inclusion of the Internet as an approved medium (135) of lawyer communication in the proposed amendments to the Model Rules as set forth in the Ethics 2000 Report, early opinions considered electronic communication as part of a “catch-all” category of public media in the current ethical rules. (136) State regulation of advertising by lawyers is subject to a four-step analysis, but intertwined commercial and free speech is not necessarily accorded the full protection of free speech. (137) States may completely prohibit any advertising by lawyers that is false, misleading or deceptive. (138) States also may place reasonable restrictions on time, place, and manner of commercial speech, including advertising by lawyers. (139)

To date, no ethics opinion has stated that the rules of lawyer conduct governing advertising and solicitation are inapplicable to lawyer and law firm websites. (140) Few jurisdictions have ever addressed the issue of whether lawyer and law firm websites constitute commercial speech subject to state ethical rules governing lawyer advertising. In jurisdictions where state courts or bar associations have considered this issue, the majority view has been that lawyer and law firm websites are subject to state regulations governing advertising. (141)

For example, in 1996, the Alabama State Bar stated that lawyer Internet communications with the public must comply with Alabama’s Rules of Professional Conduct. (142) The State Bar of Arizona Committee on the Rules of Professional Conduct takes the position that it is unethical for Arizona lawyers to participate in an Internet lawyer referral service that sends legal questions from individuals to attorneys based upon subject matter of the questions. (143) The Committee further advised that Arizona lawyers “could not pay a fee for such referrals or give the service a portion of the legal fees earned from the referral.” (144) In response to another inquiry, the Arizona State Bar stated that a firm website constituted a communication about a lawyer and is therefore subject to the ethics rules. (145) That opinion also discussed certain requirements related to lawyer websites such as identifying office locations and where legal work will be performed, indicating whether firms are affiliated with other firms that are linked to the website, and the need to retain a copy of the website in a “retrievable format” with a record of when and where the website was used. (146) The Arizona Bar has concluded that direct e-mail contact with prospective clients known to have need for legal services is governed by the rules on solicitation. (147)

In an Interim Opinion, the Standing Committee on Professional Responsibility and Conduct of the California State Bar Association opined that lawyer web pages that provide information to the public about a lawyer’s availability for professional employment constitutes “communication” governed by the Rules of Professional Conduct and an “advertisement” under the Business and Professions Code. (148) The Rules also apply to “foreign” or out-of-state lawyers who are in California and communicate information concerning their availability to perform legal services there. The opinion further advises “that the website might be subject to regulation by other jurisdictions or that it might be considered the unauthorized practice of law in other jurisdictions.” (149)

The Connecticut Bar Association takes the position that lawyer websites are subject to state rules on lawyer advertising. (150) The Standing Committee on Advertising of the Florida Bar Association has determined that lawyer and law firm web pages also constitute advertising subject to ethical rules governing such communications. (151) The Committee has also developed certain guidelines for lawyer and law firm web pages to assist in compliance with the regulations. (152) Although these guidelines require only home pages (153) to be filed for review by the Bar, information beyond the home page, considered information provided at the request of a prospective client, must comply with “substantive lawyer advertising rules.” (154)

The Illinois Bar has determined that maintaining a website is comparable to advertising in a telephone yellow page directory. (155) Furthermore, Illinois lawyers that participate in chat room discussions, post to bulletin boards, or use similar media may be subject to ethical rules governing solicitation. (156) The Iowa Bar issued an opinion concluding that Iowa lawyer and law firm web pages must comply with Iowa’s ethics rules governing advertising and are required to include certain disclaimers. (157) In a subsequent opinion, the Iowa Bar took the position that out-of-state law firms that through websites, advertise branch offices located in Iowa or firm members admitted to practice in Iowa are “solicit[ing] for Iowa legal representation and all copy, however communicated, must conform with all the requirements of the Iowa Code of Professional Responsibility for Lawyers.” (158) However, “Iowa permits electronic media ads only in the geographic area in which the lawyer maintains an office, or in which a significant part of the lawyer’s clients reside.” (159) The Iowa Bar advises that in order to avoid the requirements of compliance with the Iowa Code of Professional Responsibility, Iowa lawyers and firms should maintain separate sites without links for their in-state and out-of-state offices. (160) Lawyer web pages also constitute advertising in Kentucky. (161)

The Maine Bar has recognized the importance of the Internet as a medium for advertising by lawyers due to concerns arising from the participation of lawyers in Internet legal referral services. (162) Opinion 174 of the Professional Ethics Commission of the Maine Bar Association, however, stresses that “when lawyers use [the Internet or] any other means for marketing their services, they remain responsible for any transgressions of the ethics rules arising out of their chosen marketing method and the public communications associated therewith.” (163) The Bar Associations of Maryland, (164) Massachusetts, and Michigan have also classified websites maintained by lawyers or law firms as advertising. Massachusetts has considered extending rules regulating advertising by lawyers to on-line membership directories with links to the home pages of members of the Massachusetts Bar. (165) Michigan applies direct solicitation rules to lawyer participation in chat rooms. (166)

In an advisory opinion, the Missouri Bar determined that three non-affiliated attorneys who jointly establish an Internet website must use plain and unambiguous disclaimers. Such disclaimers may not insulate the attorneys from being treated as a firm under ethics rules. (167) Additional ethical considerations suggest that the information contained in the website must be truthful, and that any implication of specialization would trigger disclaimer requirements. (168)

In New York, lawyer web pages are subject to state regulations on lawyer advertising. (169) The New York State Bar Association, the New York County Bar Association and the Bar Association of the City of New York have all issued opinions that take the position that the Lawyers Code of Professional Responsibility applies to lawyers communications on the Internet. (170)

North Carolina lawyers who maintain websites must comply with state regulations governing lawyer advertising. The North Carolina State Bar issued an opinion stating lawyer and law firm web pages are permissible, provided that the sites comply with state regulations governing lawyer advertising. (171) In another opinion related to lawyer web pages, the North Carolina Bar states that lawyers may participate in electronic lawyer directories provided that the information contained in the directory is truthful. (172) Lawyers must include information concerning the geographic location of their principal office. Furthermore, lawyers must retain hard copies of all screens contained in the website, including material changes to the site and records of when and where the website was used. (173) Another North Carolina opinion advises that lawyers listed in Internet directories should include, among other things, the jurisdictions in which they are admitted to practice, the geographic location of their principal office and areas of concentration in practice. (174)

In December 2000, the Supreme Court of Ohio’s Board of Commissioners on Grievances and Discipline issued an opinion that states that lawyer web pages are governed by the state rules of professional conduct. (175) The Ohio opinion further indicates that a law firm’s website may include in a firm member’s biography links to published opinions with which the lawyer was involved. In addition, the opinion states that a law firm, with the client’s permission, may list the client’s name on its website. (176) Client testimonials in public communication, however, are prohibited. (177)

The Pennsylvania Bar Association also takes the position that a law firm’s web page is lawyer advertising governed by state Rules of Professional Conduct. (178) In Pennsylvania, lawyer web pages are advertisements subject to the Pennsylvania Rules of Professional Conduct if they provide information about the lawyer or the lawyer’s services. (179) In 1998, the Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility issued an extensive and thorough informal opinion entitled Lawyers’ Web Pages: Disciplinary Authority, Choice of Law and Jurisdiction. (180)

In 1994, the South Carolina Bar issued an opinion advising that state advertising rules apply to lawyer web pages. The opinion also sets forth information that must be included in these web pages, such as the “geographical limitations of the lawyer’s practice.” (181) In 1995, South Carolina issued another opinion stating that lawyers who advertise legal services on the Internet are subject to state ethical rules governing advertising. (182)

The Tennessee Supreme Court Board of Professional Responsibility stated that disclosure requirements apply to lawyers licensed in Tennessee and listed in on-line directories. (183) The Tennessee bar has also determined that state advertising rules apply to lawyer Web pages (184) but do not generally apply to lawyer responses to private individual e-mail inquiries on legal matters posted on the Internet. (185)

The Interpretive Comment to Part 7 of the Texas Disciplinary Rules of Professional Conduct, notes that “[c]ertain publications on the Internet or similar services are public media advertisement and are subject to the provisions of Part 7 of the Texas Disciplinary Rules of Professional Conduct.” (186) In Utah, state rules regulating lawyer advertising are applicable to lawyer web pages. (187)

Vermont Bar Association Ethics Opinion 97-5 states that lawyers who communicate with clients and prospective clients through Internet websites must comply with Vermont’s ethical rules governing lawyer advertising and solicitation. (188) In Advisory Ethics Opinion 2000-4, the Vermont Bar responded to ethics concerns raised by a Vermont lawyer who “maintains an extensive website intended foradvertising and providing a public service.” (189) The Vermont Bar takes the position that: (1) lawyer and law firm web pages should comply with “accuracy and record-keeping provisions” governing lawyer advertising

The Virginia Bar Association also considers state ethics rules governing lawyer advertising to be applicable to lawyer advertising on the Internet. (192) In Opinion A-0110, the Standing Committee on Advertising states that lawyers “who communicate on the Internet in ‘real time’ chat rooms must abide by the restrictions on solicitation” and in-person communications. (193)

B. Lawyer Participation In Real-Time Electronic Communications Is Analogous to In-Person Solicitation.

A separate set of ethical issues is raised when lawyers communicate with non-lawyer potential clients using forms of real-time electronic communication, such as chat rooms. (194) First, is such communication considered advertising, which is permissible, or does it constitute solicitation, which is prohibited? (195) The ABA Ethics 2000 Report of proposed changes to Rule 7.3 of the Model Rules of Professional Conduct expressly prohibits real time communication by a lawyer to solicit professional employment unless the prospective client is a lawyer, or has a “family, close personal, or prior professional relationship with the lawyer.” (196) The comment to proposed Rule 7.3 explains that real-time electronic communication between lawyers and prospective clients is much like live telephone conversations and is “fraught with the possibility of undue influence, intimidation, and over-reaching.” (197)

At least one commentator predicts that “developments in virtual reality, artificial intelligence and other technologies may make it difficult to distinguish a ‘virtual’ solicitation from a live solicitation in the future.” (198) Most state bars have not taken a position on this issue. The few state bars that have addressed this issue have tended to find that communication between lawyers and non-lawyers in real-time chat rooms is analogous to “in-person” solicitation. (199)

For example, the Utah State Bar Association draws a parallel between communication between lawyers and non-lawyers in chat-rooms and in-person solicitation because of the “direct, confrontational nature and the difficulty of monitoring and regulating [the chat-room communication].” (200) The Michigan State Bar takes the position that real-time interactive Internet communication initiated by lawyers without invitation constitutes impermissible direct solicitation. (201) Observing that certain, more interactive sites bear strong similarities to telephonic and face-to-face conversation, the Oregon Bar has commented that “if the contact would be prohibited in nonelectronic form, then it is prohibited in electronic form.” (202) Additionally, the Florida Bar Standing Committee on Advertising states that “[a]n attorney may not solicit prospective clients through Internet chat rooms, defined as real time communications between computer users.” (203) In reaching this conclusion, the Florida Bar relied upon bar association opinions from Illinois, (204) Michigan, (205) Utah, (206) Virginia, (207) West Virginia, (208) and Philadelphia, Pennsylvania. (209)

Rather than adopting a per se rule that real-time Internet communications constitute impermissible solicitation, Philadelphia Bar Association Professional Guidance Committee Opinion 98-6 takes the position that lawyer communications in Internet chat rooms are not solicitations. (210) At the same time, that Bar Association cautions that such conversations may evolve into solicitation. (211) The Philadelphia Bar advises lawyers who participate in chat room communication to indicate that they are attorneys. The Philadelphia Bar also states that the lawyers must abide by state ethical rules governing solicitation, the unauthorized practice of law and communication with prospective clients. (212)

C. Lawyer and Law Firm Web Pages May Be Subject To Ethical Rules in States Where Lawyer and Law Firm Are Not Admitted To Practice

To advertise in cyberspace is to advertise “everywhere and nowhere all at once[.]” (213) To what extent can a state disciplinary committee sanction an unlicensed lawyer based on that lawyer’s Internet advertising? Also, may the lawyer be subject to sanctioning in the jurisdiction where the lawyer is licensed? In July 1999, the South Carolina Bar recommended the adoption of South Carolina Appellate Court Rule 418 governing Advertising and Solicitation by Unlicensed Lawyers, promulgated by the South Carolina Supreme Court. (214) Rule 418 sets forth a list of circumstances where lawyers who are not licensed to practice law in South Carolina must adhere to South Carolina’s advertising rules. (215) Rule 418 further provides that South Carolina may order forfeiture of counsel fees, utilize their courts’ contempt powers, prosecute for unauthorized practice of law and, most importantly, discipline lawyers who engage in unauthorized practice of law. (216)

Given that Internet users worldwide, can access a lawyer or law firm web page, it is unlikely that the approximately 14,000 law-related web pages were designed specifically to satisfy South Carolina’s rules governing lawyer advertising. (217) It is even more unlikely that in launching either “tombstone” (218) or state-of-the-art web pages, lawyers and law firms contemplated that South Carolina, or any other state in which they were not licensed to practice, could subject them to disciplinary action for violating the state’s advertising rules and possible sanctions for the unauthorized practice of law. Further, in states that have reciprocal discipline, out-of-state lawyers who are sanctioned by South Carolina also may be sanctioned by the state in which they are licensed to practice. (219)

South Carolina is not alone in its attempt to regulate the conduct of lawyers who are not members of its Bar. The Florida Bar has posted a notice on its website informing the world that lawyers who disseminate advertisements in Florida, “including computer accessed communications” on the Internet, solicit legal employment in Florida, or target Florida residents in solicitations or advertisements, “are engaging in the unauthorized practice of law in Florida,” and therefore are subject to discipline under the rules and regulations promulgated by the Florida Supreme Court. (220)

Although not purporting to deal with all aspects of multi-jurisdictional practice or specifically targeting lawyer communications on the Internet, the ABA recommended significant changes to the Rules of Professional Conduct to address some of the complex issues raised by multi-jurisdictional practices. (221) Proposed Model Rule 5.5, while recognizing that “a lawyer may regularly practice law only in a jurisdiction in which the lawyer is admitted to practice[,]” provides a limited set of circumstances that act as a safe harbor for lawyers to practice law in jurisdictions in which the lawyer is not admitted to practice. (222) Here, the ABA Commission believed that the “principles of comity require the adopting jurisdiction to require its lawyers to comply with the law of another jurisdiction,” and rejected the theory that a lawyer may be disciplined solely by the jurisdiction in which he is admitted to practice. (223)

Principles of comity notwithstanding, if the jurisdiction in which the conduct occurred has not adopted proposed Model Rule 5.5, or a similar form, “a lawyer licensed in the adopting jurisdiction may be disciplined for engaging in the unauthorized practice of law in the other jurisdiction, even if the lawyer’s conduct otherwise falls within the safe harbors provided in this Rule.” (224) Absent adoption of Proposed Model Rule 5.5, or a similar version, the protection of the four safe-harbor provisions is unavailable to lawyers whose conduct falls squarely within the scope of those provisions.

The ABA’s proposed amendments to Model Rule 8.5 also address choice of law issues raised by multi-jurisdictional practices. (225) Subsection (b)(1) provides that the rules of professional conduct apply in exercising disciplinary authority against a lawyer “for conduct in connection with a matter pending before a tribunal, the rules of the jurisdiction in which the tribunal sits, unless the rules of the tribunal provide otherwise….” (226) Subsection (b)(2), which determines when the rules of professional conduct should be applied “for any other conduct,” provides that “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.” (227) Subsection (b)(2) concludes with a safe harbor provision stating that “[a] lawyer is not 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.” (228)

The ABA’s proposed amendments to Rule 8.5(a), governing disciplinary authority and choice of law issues, provides that lawyers admitted to practice in a particular jurisdiction are subject to the disciplinary authority of that jurisdiction. (229) A more significant change in this provision is that “[a] lawyer not admitted in this jurisdiction is also subject to the disciplinary authority of this jurisdiction if the lawyer renders or offers to render any legal services in this jurisdiction.” (230) The commentary section on disciplinary authority explains that the “[e]xtension of the disciplinary authority of this jurisdiction to other lawyers who render or offer to render legal services in this jurisdiction is for the protection of the citizens of this jurisdiction.” (231)

With respect to lawyer Internet communications, it is unclear whether establishing and maintaining an Internet website constitutes an offer to render legal services in every jurisdiction. At least one state attorney general takes the position that if one consumer reads the information on a website of an out-of-state business, the state has jurisdiction over that business. (232) Applying the same reasoning, may a state assert jurisdiction over an out-of-state lawyer or firm merely because a consumer within the state views the Internet website of the lawyer or firm? With little law and much uncertainty concerning jurisdictional issues raised by lawyer and law firm websites, (233) it is unclear whether, or to what extent, a state may assert personal jurisdiction over a lawyer or law firm based solely on Internet activities. Two state court decisions suggest that lawyer Internet sites present unique advertising opportunities accompanied by equally unique exposure to multi-jurisdictional ethical risks.

In Florida Bar v. Kaiser, (234) a New York immigration and naturalization lawyer with offices in several cities and states, including Miami, Florida, was charged with the unauthorized practice of law based on his telephone, newspaper and television advertising in Florida. (235) In the disciplinary action, the referee found and the court agreed that the lawyer’s advertisement suggested that he could lawfully practice in Florida, “with no distinguishing limitations as to his membership in the New York bar or his limited area of practice.” (236) The New York lawyer was not a member of the Florida Bar. (237) However, a partner in the Miami office was a member of the state bar. (238) The court enjoined the lawyer from engaging in any form of advertising that suggested that he was a member of the Florida Bar, or that he was authorized to practice law in Florida and imposed the costs of litigation on the defendant-lawyer. (239)

In Birbrower, Montalbano, Condon & Frank P.C. v. Superior Court, (240) a California client filed suit against a New York law firm for malpractice and related claims in connection with the firm’s representation of the client in a contract dispute. (241) The law firm filed a counterclaim for, among other things, attorney fees pursuant to a fee agreement for work performed in New York and California. (242) Two of the firm’s attorneys performed “substantial work” in both California and New York, even though no attorney at the firm was licensed or admitted to practice law in California, nor was the firm associated with California counsel. (243) Section 6125 of the California Business and Professional Code provides that “[n]o person shall practice law in California unless the person is an active member of the State Bar.” (244) To determine whether Birbrower practiced law “in California,” the court considered “whether the unlicensed lawyer engaged in sufficient activities in the state, or created a continuing relationship with the California client that included legal duties and obligations.” (245) The court explained that the Code’s “definition [of “in California”] does not necessarily depend on or require the unlicensed lawyer’s physical presence in the state.” (246) The court further explained that “[p]hysical presence here is one factor we may consider in deciding whether the unlicensed lawyer has violated section 6125, but it is by no means exclusive.” (247)

By way of example, the Birbrower court stated that “one may practice law in the state in violation of section 6125 although not physically present here by advising a California client on California law in connection with a California legal dispute by telephone, fax, computer, or other modern technological means.” (248) The court ultimately concluded that the Birbrower firm violated section 6125 by practicing law in California when it engaged in settlement negotiations and initiated arbitration proceedings in California on behalf of a California client without association of California counsel. (249) The court held that Birbrower could not recover fees for legal services rendered in California but was entitled to recover fees for those legal services rendered outside of the state that did not constitute “the practice of law in California. (250) As the holding in Birbrower suggests, it is conceivable that an out-of-state lawyer or law firm could violate California’s unauthorized practice of law statute without setting foot in that state.

The potential risk of violating various irreconcilable rules of ethics associated with lawyer Internet presence and multi-jurisdictional practice calls for the development of uniform guidelines to govern lawyer Internet communications. One commentator has argued for uniformity so that “a lawyer admitted in any one state will be accepted and treated as a lawyer in every other state.” (251) Therefore, a lawyer should be subject to discipline in any state based upon the lawyer having engaged in the practice of law rather than the lawyer’s mere Internet presence alone. (252)

Are lawyers who advertise on the Internet making an offer to render legal services in every jurisdiction in which their websites may be accessed? Although a state has jurisdiction over lawyers admitted to its Bar, it is unclear whether states constitutionally may sanction out-of-state lawyers whose Internet websites fail to comply with their rules regulating lawyer advertising and solicitation. Out-of-state lawyers may challenge a state’s authority to impose sanctions based solely on that lawyer’s Internet presence. Further, out-of-state lawyers may raise Commerce Clause, Equal Protection, and Privilege and Immunities claims against states that attempt to impose sanctions against them based solely on Internet presence. (253) In an informal opinion, the Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility noted that there is no express or implied provision in the Rules of Professional Conduct “that a lawyer may be subject to the disciplinary authority of a jurisdiction where a lawyer is not admitted to practice.” (254) The Committee went on to explain, “[t]his interpretation is consistent with the territorial-based jurisdictional system governing the practice of law in the United States. By what authority could a state where a lawyer is not admitted to practice exercise disciplinary authority over that lawyer?” (255) Absent uniform standards to govern lawyer Internet communications, lawyers are unable to accurately predict which law will govern their Internet-related conduct.

The drafters of the current model rules did not contemplate the explosive growth that would take place in electronic communications such as the Internet as medium to advertise and deliver legal services. Some commentators argue that an entirely new jurisdictional model must be developed to govern lawyers’ conduct on the Internet. Other commentators argue that the rules are sufficiently broad to encompass emerging technologies. (256) As this article further discusses, unless a uniform model governing lawyer advertising is developed and uniformly adopted by all jurisdictions, it is unlikely that either position alone will be effective. Currently, however, there are no clear uniform guidelines to regulate lawyer advertising on the Internet.

The New York State Bar Association Committee on Professional Ethics has declined to take a position on “whether Internet advertising may also be subject to the rules regulating lawyer advertising of other jurisdictions in which the advertising appears and from which potential clients are solicited.” (257) In sharp contrast, an informal opinion from the Pennsylvania Bar Association took the position that lawyer and law firm Internet activities may subject the lawyer or law firm to personal jurisdiction in another state on civil and criminal charges for the unauthorized practice of law and improper solicitation of clients. (258) The Pennsylvania Bar further advised that conduct that subjects a lawyer to civil and criminal penalties in another state, may also subject the lawyer or law firm to disciplinary proceedings in the state in which they are admitted to practice. (259) That opinion also observed that courts should apply a sliding scale analysis to Internet related jurisdictional issues, focusing on the nature and degree of the Internet activities conducted. (260) Some courts have determined that Internet presence alone is an insufficient basis to establish personal jurisdiction over a defendant. (261) Other courts have found that Internet presence plus “something more” will provide a sufficient basis to establish personal jurisdiction. (262) “Something more,” generally refers to some activity other than the Internet contacts and may include “business transactions related to electronic contacts, advertising in other media, or the commission of a tort via the Internet or other electronic contact.” (263) Employing the sliding scale analysis, courts are less likely to find that passive websites provide a basis for attaching personal jurisdiction, while interactive websites are more likely to establish a sufficient basis for personal jurisdiction. (264)

In addition to the need for a sliding scale analysis in the jurisdictional arena, a clear uniform model must be developed to address issues attendant to advertising by lawyers on the Interact and disparate rules of ethics in the various jurisdictions. For example, traditional Supreme Court analysis of lawyer advertising consists of three categories: “in-person solicitation,” “advertising in the public media,” and “written solicitation.” (265) Advertising on the Internet is more difficult to categorize since it may entail each of the three traditional categories as well as new categories where “the boundaries overlap and frequently blend together.” (266) With respect to regulation and jurisdictional analysis through electronic communication, lawyer advertising should be considered in the context of whether the mode of communication is “passive,” “reactive,” “active,” or “interactive.” (267) Passive websites, generally, are informational

To date, no cases have determined whether states may assert personal jurisdiction over an out-of-state lawyer based solely on the lawyer’s Internet activities that violate that state’s ethical rules. Numerous informal ethics opinions, however, suggest that lawyers and law firms who have Internet websites should be certain that information on their websites comports with, among other things, advertising and unauthorized practice regulations from other jurisdictions. (275) The problem with this recommendation is the improbability that a single website can comply with the many inconsistent and irreconcilable versions of state rules of ethics. Disparate rules governing lawyer communications and lack of clarity as to which jurisdictional rule applies support the conclusion that clear uniform guidelines to govern the Internet activities of lawyers must be developed.

IV. CALL FOR UNIFORM GUIDELINES FOR LEGAL WEB SITES

Lawyers and non-lawyers alike may be confused by inconsistent rules governing lawyer communications. Since each state promulgates its own rules of professional conduct and each federal district court is free to adopt the rules of conduct for the state where it is located, as well as develop its own set of rules, confusion as to which rules apply may increase. (276) Absent uniform standards, lawyers and law firms with web pages accessible by the general public risk violating ethical rules in numerous states and, thereby becoming subject to civil and criminal penalties in multiple jurisdictions and possibly disciplinary proceedings. (277) Even if the proposed Model Rules of Professional Conduct are adopted, it is very unlikely that each of the 50 states will adopt these Rules or that the adopting states will do so without some modification.

Generally, the underlying purposes of lawyer advertising regulations are twofold: (1) to protect consumers from false and misleading communications, and (2) to provide guidance to practitioners. (278) Unlike print, radio or television advertising that is targeted to a particular geographic location, lawyer advertising on the Internet has no geographic or jurisdictional boundaries. (279) As such, it is a unique medium that permits, among other things, lawyers and law firms of any size to deliver information and market legal services to the world. In granting partial First Amendment protection to commercial speech, the U.S. Supreme Court emphasized that “commercial speech serves to inform the public of the availability, nature, and prices of products and services, and thus performs an indispensable role in the allocation of resources in a free enterprise system.” (280)

The public, however, is generally unaware that states have different regulations for lawyer advertising or what those regulations require. (281) A typical example may be found in state rules governing the use of disclaimers in advertising. (282) Alabama, Florida, Iowa, and Mississippi require lawyers to include disclaimers when publishing advertisements. (283) At least a dozen states require a lawyer to include appropriate disclaimers in the advertisement when the advertisement states the lawyer has “practice limitations, areas of specialization, [or] certifications[.]” (284) Some states require lawyers to identify such communications as advertising, others do not. (285) Some states require pre-approval of advertisements. (286) With respect to record keeping, some states require records of advertisements to be retained from a period ranging from two to five years. (287) Some jurisdictions permit dramatizations, while other jurisdictions prohibit them. (288) The lack of uniform guidelines renders it impossible for lawyers and law firms to comply with various inconsistent state advertising regulations.

This disparity in standards may serve to confuse the average consumer and undermine public confidence in the effectiveness of self-regulation of the profession. (289) To adequately compare legal services offered on the Internet, the average consumer would need a “plain English” conversion chart to make sense of legal advertisements with their legalese notices and disclaimers required by different state codes. This “patchwork pattern of state regulation” (290) that prompted the most recent proposed amendments to the Model Rules leaves consumers with multiple standards to apply when reading lawyer advertising. These disparate standards lead to confusion and render it practically impossible for the general public to compare lawyers and law firms and the legal services they offer. The first rule of lawyer communications, generally, is that they must not be false or misleading. (291) These disparate standards of the various states are themselves inherently misleading to the general public as applied to lawyer Internet communications.

The general public is not alone in this state of confusion. Lawyers and law firms also need more guidance and clarity concerning the parameters of legal advertising on the Internet. (292) Although this article focuses on the need for uniformity arising from Internet related activities such as advertising, a significant increase in the number of national law firms and lawyers with multi-jurisdictional practices serving clients with multi-jurisdictional interests has caused many commentators to suggest the need for uniform regulation of the legal profession. (293)

In 1993, in response to complaints of practitioners and bar associations concerning confusion created by conflicting standards and the call for uniform federal standards, the ABA implemented Model Rule 8.5 governing choice of law for disciplinary authority. (294) Neither Model Rule 8.5, nor proposed Model Rule 8.5, however, can adequately address the problems created by such disparate standards. First, Model Rule 8.5 provides after-the-fact guidance as to which jurisdiction may exercise disciplinary authority over the lawyer’s conduct. Second, Rule 8.5 is of little or no effect, unless a majority of states adopts the entire package of rules as proposed. (295)

Increasingly, commentators are arguing for uniform national standards to remove or minimize the uncertainty and risk lawyers and law firms with a multi-jurisdictional practice face as a result of disparate ethical standards. (296) Commentators offer several bases in support of their arguments for uniform national standards. For example, Professor Zacharias argues that a uniform system of regulation is necessary, among other things, because of (1) the increase in national firm multi-jurisdictional practices, (2) the significant differences in ethical rules among the various states, as well as the disparity between state and federal rules of conduct, and (3) the negative effect disparate rules of conduct have on the public’s perception of and confidence in lawyers. (297)

Another rationale in support of national regulatory standards for lawyers is that federal enforcement of disciplinary rules would be more consistent and perhaps, more cost-effective. (298) Professor Hill argues that a national standard governing lawyer communications is “necessary to provide direction for lawyers and information for the public that can be clearly evaluated and understood.” (299) Establishing national standards, another commentator suggests, would provide clear uniform guidelines and a level playing field for all lawyers. (300) To address jurisdictional and ethical issues raised by lawyer Internet advertising, and as an alternative to adopting uniform national standards, another commentator argues that lawyers and law firms limit access to their sites solely to viewers in jurisdictions where the lawyers and law firms are admitted or licensed to practice. (301) Currently, technology is available to restrict access to sites based upon geographic locations, for example, city, state, the United States, and North America. (302)

Interestingly, one commentator argues that disparate rules among states are a natural consequence of federalism. (303) Professor Moulton further argues that uncertainty, unpredictability and other problems associated with disparate state rules of conduct do not warrant federal preemption of state authority to regulate lawyer conduct. (304) This argument acknowledges at least two reasons to have a separate choice-of-law rule for lawyers: (1) the current choice-of-law rules are unclear and undeveloped

As another alternative to national standards of conduct, Professor Moulton recommends a federal choice-of-law rule that does not intrude on a state’s authority to regulate lawyers’ conduct that occurs within its borders. (307) Here, Professor Moulton essentially argues that disparate rules are inherent in a federalism system. (308) He further suggests that while Congress may be empowered to enact regulations governing lawyers’ conduct, it probably lacks the authority to require states to enforce such regulations. (309) One criticism associated with adopting a federal choice-of-law rule rather than developing national standards of conduct, however, is that lawyers cannot readily determine which jurisdictional rules will control before engaging in such conduct and multiple jurisdictions are not preempted from applying their ethical rules to the lawyer’s conduct. (310) Many of the arguments made in support of uniform standards in the traditional choice-of-law arena equally support the arguments for uniform rules governing lawyer and law firm communications in cyberspace. An important objective of uniform advertising guidelines is to resolve the disparity among the various jurisdictions’ advertising rules and provide clarity as to which rules apply.

V. PROPOSED GUIDELINES

To advertise in cyberspace is to advertise “everywhere and nowhere all at once….” (311) To what extent can a state discipline lawyers not licensed in that state based on lawyer advertising on the Internet that violates that state’s lawyer advertising rules? May the lawyer also be subject to sanctioning in the jurisdiction where the lawyer is licensed? Absent uniform standards to regulate lawyer communications on the Internet, lawyers and law firms risk violating various state ethical rules governing lawyer communications. Inclusion of certain basic information, such as the names of lawyers in the firm and jurisdictions in which they are admitted to practice should demonstrate a good faith effort in complying with the various inconsistent state regulations. A good faith effort to comply should be sufficient to prevent a state from initiating legal action, whether in the form of disciplinary, civil, or criminal proceedings, against a lawyer or firm based solely on information contained on an Internet website.

Where a lawyer or firm demonstrates a good faith effort to comply by including essential information to avoid being false or misleading, mere Internet presence alone should be an insufficient basis to subject the lawyer or firm to another state’s disciplinary authority. Uncertainty as to which jurisdictional rules apply to lawyer webpages makes it practically impossible to avoid violating ethical rules of certain states. The extent to which states can regulate the conduct of out-of-state lawyers based upon Internet communications remains an open question. Uniform guidelines must be developed to allow lawyers and firms to participate, in good faith, in the use of emerging technologies to facilitate the free flow of information concerning legal services without being subject to penalties for breaching ethical rules governing the unauthorized practice of law, solicitation, and advertising.

Currently, lawyer and law firm Internet sites must comply with advertising regulations of the jurisdiction in which the lawyer or law firm is admitted to practice. The extent to which lawyer and law firm Internet sites must comply with ethical rules governing lawyer advertising in jurisdictions in which the lawyer or law firm is not admitted to practice remains an open question. Absent uniform guidelines to govern lawyer and law firm Internet communications, the risk of violating various inconsistent advertising, solicitation, and unauthorized practice of law rules in numerous jurisdictions increases. The ABA Model Rules are ineffective in resolving the disparity issue because each jurisdiction is free to adopt some, all, or none of the recommended Rules. It is likely that Congress will have to create a national standard to govern lawyer communications on the Internet. Congress could obtain guidance in this endeavor from the ABA and other legal organizations, and from each state, and by creating a special committee to investigate and develop appropriate standards to address these issues.

Until uniform standards of professional conduct are developed to address the disparity in ethical rules among the states, lawyers and law firms should have a safe harbor available to protect against inadvertent and unavoidable violations of ethical rules. The safe harbor should consist of complying with the applicable rules of professional conduct for the jurisdictions in which the lawyer or law firm is admitted to practice, and in complying with certain basic requirements to demonstrate a good faith effort in actively seeking to meet and maintain high, rather than minimum, ethical standards. This safe harbor should insulate lawyers and law firms from civil, criminal, and disciplinary proceedings for violating inconsistent ethical rules in jurisdictions where the lawyers or law firms are not admitted to practice law. The following list, while not exhaustive, constitutes an initial attempt in developing clear uniform guidelines that apply to lawyer and law firm Internet sites.

Proposed Guidelines:

* Lawyer and law firm Internet sites shall include only truthful information concerning the lawyer or law firm and the lawyer’s or law firm’s services. (312) Truthful information is information that contains no material misrepresentations of fact or law. (313)

* Lawyer and law firm Internet sites are false and misleading if the sites contain information that creates any unjustified expectations about the results the lawyer or law firm can achieve. (314)

* Lawyer and law firm Internet sites shall contain no information that compares legal services provided by the lawyer or law firms legal services with legal services provided by another lawyer or law firm. (315)

* Lawyer and law firm Internet sites shall include the name of the lawyer or law firm. (316) The law firm name shall not be misleading. (317)

* Lawyer and law firm Internet sites shall identify the law office address, telephone number, facsimile number and e-mail address of the lawyer or law firm. (318) Office address means the address where the law office is physically located. Identifying post office boxes and virtual Internet addresses are insufficient to satisfy this requirement. (319)

* Lawyer and law firm Internet sites shall identify the name and office address of at least one lawyer or law firm responsible for the content of the Internet site. (320) Office address means the address where the law office is physically located. Post office boxes and virtual Internet addresses are insufficient to satisfy this requirement. (321)

* Lawyer and law firm Internet sites may be designated by a distinctive website address provided that the website address is not misleading. (322)

* Lawyer and law firm Internet sites may not use metatags or other coding devices that are misleading or contain material misrepresentations. (323)

* Lawyer and law firm Internet sites shall conduct regular periodic review of content and accuracy of Internet sites of the lawyer or law firm and any websites to which the Internet sites of the lawyer or law firm are linked. (324)

* Lawyer and law firm Internet sites may use a trade name provided that the trade name is not misleading and does not imply association with a government agency or with public or charitable legal services organization. (325)

* Lawyer and law firm Internet sites shall identify the jurisdictions in which the lawyers are admitted to practice law. The geographic limitations of the lawyer’s or law firm’s practice must be clearly identified. (326)

* Lawyer and law firm Internet sites shall identify the kinds of legal services the lawyer or law firm will undertake. (327)

* Lawyers and law firms shall not engage in real-time electronic communications with prospective clients, unless the prospective client is a close friend or relative or an individual with whom the lawyer or law firm has a prior professional relationship. (328)

* Lawyer and law firm Internet sites shall keep the content of the site current and accurate to avoid being false and misleading. Information on the site is directly related to the requirement of competence and the prohibition against false and misleading lawyer communications. (329)

* Lawyer and law firm Internet sites shall include the words “Advertising Materials” on any communication directed to prospective clients known to have need of legal services. (330)

* Lawyer and law firm Internet sites shall implement appropriate security precautions to prevent intentional and inadvertent breaches on the websites. (331)

* Lawyer and law firm Internet sites shall implement appropriate procedures to protect client confidences and privacy rights of prospective clients. (332)

* Lawyers and law firms shall implement effective procedures to prevent conflicts of interest based on Internet communications with prospective clients. (333) The Internet site shall include appropriate disclaimers, such as informing a prospective client, in plain English, that an attorney-client relationship is not intended and is not created based solely on the prospective client’s viewing the Internet site. (334)

* Lawyer and law firm Internet sites shall include required disclosures and effective disclaimers. Disclosures and disclaimers should be conspicuous and in plain English. The Internet site shall include, in plain English, definitions for terms of art. Definitions may be omitted where the Internet site is accessible only to lawyers. (335)

* Lawyer and law firm Internet sites may include biographical information on the lawyers. Biographical information includes fields of practice, educational background, foreign language capabilities, teaching positions, scholarship, board positions, pro bono and community service activities. (336)

* Lawyer and law firm Internet sites may indicate that the lawyer or law firm is a certified specialist so long as the site provides in plain English definition for the term “certified specialist” and clearly identifies the name of the certifying organization. (337)

* Lawyer and law firm Internet sites may include prices for specific legal services, and payment and credit arrangements. (338)

* Lawyer and law firm Internet sites shall not include testimonials, (339) unsubstantiated comparisons, (340) or puffery. (341)

VI. CONCLUSION

While it is yet unclear the extent to which lawyer and law firm Internet websites must comply with regulations governing advertising in each state, absent uniform standards, lawyers and law firms who maintain Internet websites risk numerous inadvertent violations of inconsistent state regulations. Further, given the uncertainty as to how traditional choice of law rules will be applied to lawyer and law firm Internet activities, lawyers have little guidance as to which jurisdictional rules will apply. Uniform standards should be developed specifically for lawyer and law firm Internet communications. Uniform standards, patterned after those proposals set forth above, governing lawyer communications must be flexible enough to encompass the extensive capabilities of current and future technological developments.

(1.) The legal profession is primarily self-regulating. See ABA Comm’n on Evaluation of the Rules of Prof’l Conduct, Report (2000), at 4 [hereinafter ABA Ethics 2000 Report]. See also Fred C. Zacharias, Federalizing Legal Ethics, 73 TEX. L. REV. 335, 340 (December 1994) (citing 28 U.S.C [section] 2701 (1988) and Theard v. United States, 354 U.S. 278, 281 (1957)).

(2.) See H. Geoffrey Moulton, Jr., Federalism and Choice of Law in the Regulation of Legal Ethics, 82 MINN. L. REV. 73, 97-98 (1997) (stating “lawyers engaged in multistate practice must be aware not only of state-to-state disparity in conduct rules, but of state-federal and federal-federal disparity as well”)

(3.) See Peter Krakaur, Internet Advertising: States of Disarray? Are Uniform Rules a More Practical Solution?, 218 N.Y. L.J. S4, S14 (1997) (discussing the need for uniform national standards).

(4.) “The Internet is not a physical or tangible entity, but rather a giant network which interconnects innumerable smaller groups of linked computer networks.” ACLU v. Reno, 929 F. Supp. 824, 830 (E.D. Pa. 1996), aff’d, 521 U.S. 844 (1997). See also Andrew E. Costa, Minimum Contacts in Cyberspace: A Taxonomy of the Case Law, 35 Hous. L. REV. 453, 463 (1998) (citing the ACLU court’s explanation “that the Internet is a connection of many individual networks” including “[s]tate and federal governments, universities, and corporations” so that the “total effect … is a decentralized, global medium of communications'” (quoting ACLU, 929 F. Supp. at 831)).

(5.) See Leonard T. Nuara, Proceed With Caution: Lawyer Ethics And The Internet, in WHAT LAWYERS NEED TO KNOW ABOUT THE INTERNET, at 63, 68 (PLI Intell. Prop. Course Handbook Series No. 655, 2001) (stating “[l]awyers and law firms must comply with the ethics rules on advertising for all states in which they, and their attorneys, are licensed to practice[]”) (citing American Bar Association (“ABA”)/Bureau of National Affairs, Inc. (“BNA”) Lawyers’ Manual on Prof’l Conduct, at 46). Additionally, lawyers are prohibited from practicing law in a jurisdiction where engaging in the practice of law violates the rules of professional conduct of that jurisdiction. See MODEL RULES OF PROF’L CONDUCT R. 5.5 (Unauthorized Practice of Law) (1999)

(6.) Internet Relay Chat (“IRC”) systems permit two or more persons to communicate in real time by typing messages that almost instantaneously appear on the participants’ computer screens. ACLU, 929 F. Supp. at 835. In ACLU, the district court for the Eastern District of Pennsylvania found that participating in an IRC is analogous to engaging in a telephone conversation on a telephone party line. Id. See also Catherine J. Lanctot, Attorney–Client Relationships in Cyberspace: The Peril and the Promise, 49 DUKE L. J. 147 (1999) (discussing issues raised by lawyer and layperson communications in cyberspace, including inadvertent creation of attorney-client relationships and the effectiveness of disclaimers).

(7.) See Anthony E. Davis, Ethics and Etiquette of Lawyering on the Internet–Part 2, 224 N.Y. L.J. 1, 3 (2000).

(8.) Id. at 6.

(9.) See Carol A. Needham, Splitting Bar Admission Into Federal And State Components: National Admission For Advice On Federal Law, 45 UNIV. KANSAS L. REV. 453, 454, 486 (1997). With the exception of the Commonwealth of Virginia, where the legislature alone promulgates the bar admission requirements, generally, the highest court in each state establishes the rules for admission to the bar. Id. at 486. In forty-five jurisdictions, the highest courts alone establish the rules for admission to the bar. Id. at 487. In the remaining ten jurisdictions, the legislatures and the highest courts jointly establish the rules for admission. Id. at 486-87. Included within the fifty-five jurisdictions are the fifty states, the District of Columbia, Puerto Rico, the U.S. Virgin Islands, Guam and the Marianas Islands. Id. at 487 n.168.

(10.) See Needham, supra note 9, at 454-55. To date, forty-two states and the District of Columbia have adopted some version of the Model Rules, while a few states continue to use some version of the Model Code of Professional Responsibility (“Model Code”). See ABA Ethics 2000 Report, supra note 1, at xi (identifying “the growing disparity in state ethics codes” as the primary underlying reason for revisiting the Model Rules). California utilizes a completely separate system of regulation. Id. See also Robert Battey, Loosening The Glue: Lawyer Advertising, Solicitation And Commercialism in 1995, 9 GEO. J. LEGAL. ETHICS 287, 292 (1995) (“Regulation of lawyer advertising and solicitation has traditionally been a matter for state bars.”).

(11.) ABA Ethics 2000 Report, supra note 1, at 4.

(12.) Needham, supra note 9, at 467 (citing Deborah L. Rhode, Policing The Professional Monopoly: A Constitutional And Empirical Analysis Of Unauthorized Practice Prohibitions, 34 STAN. L. REV. 1 (1981)), accord, ABA Comm’n on Advertising, White Paper, A Re-Examination of the ABA Model Rules of Professional Conduct Pertaining to Client Development in Light of Emerging Technologies, at 4 (1998), available at http://www.abanet.org/legalservices/whitepaper.html (last visited Feb. 15, 2002) (on file with the Rutgers Computer and Technology Law Journal) [hereinafter ABA White Paper] (stating that trade protection and consumer protection are “interwoven justifications” for legal ethics rules and that trade protection rules relate to the “fact that the legal profession is a monopoly to practice law”) (citing Russell G. Pearce, The Professionalism Paradigm Shift: Why Discarding Professional Ideology Will Improve the Conduct and Reputation of the Bar, 70 N.Y.U.L. REV. 1229 (1995) and RICHARD L. ABEL, AMERICAN LAWYERS (1989)).

(13.) See Ten Ways Every Law Firm Should Use The Internet, LAW OFFICE MGMT. & ADMIN. REPORT (Inst. of Mgmt. Admin.), Feb. 1, 2001, at 1-4 [hereinafter IMA Report] (discussing the Internet as a tool for lawyers, among other things, to conduct legal research, publishing electronic newsletter, advertising online directories, keeping abreast of ethical considerations of online use, and reading breaking legal news in major legal publications.). See also J.T. Westermeier, Ethical Issues For Lawyers On The Internet And World Wide Web, 6 RICH. J.L. & TECH. 5, para. 1 n.3 (1999), at http://www.richmond.edu/jolt/vb1/westermeier.html. “By the end of 2002, more than 320 million people are expected to be accessing and using the World Wide Web.” Id. (citing Larry Lange, Technology 1999 Analysis & Forecast: The Internet, IEEE SPECTRUM, at 35 (1999).

(14.) See Michael P. Malakoff & David W. Snyder, Lawyer Advertising on the Internet: Ethical Quagmires and Global Opportunities, in CONSUMER FINANCIAL SERVICES LITIGATION, at 131 (PLI Corp. Law and Prac. Course Handbook Series No. 1047, 1998)

(15.) See Harris, supra note 14

(16.) The list is extensive but by no means exhaustive, and it will continue to grow as use of the Internet increases. Stacy Stern, the president of Findlaw.com comments, “Lawyers spend more money on Yellow Pages listings than any other group … The Internet is changing the way lawyers market themselves.” Net Offered Midstate Lawyer’s Firm Exposure, Expansion, THE TENNESSEAN, Jan. 7, 2001.

(17.) See WEB RESOURCES FOR LEGAL RECRUITERS AND MARKETERS, COMPENSATION & BENEFITS FOR LAW OFFICES (Inst. of Mgmt. Admin.), Feb. 1, 2001.

(18.) Online continuing legal education courses provide lawyers, particularly those in rural communities with limited access to live seminars, a time-saving alternative to attending classes in-person in order to satisfy mandatory legal education credits to retain their professional licenses. THE TENNESSEAN, supra note 16.

(19.) See IMA Report, supra note 13. The number of websites containing legal research materials has increased exponentially since 1969 when the Internet, then known as ARPANET, was merely an experimental project linking “computers and computer networks owned by the military, defense contractors, and university laboratories conducting defense-related research.” ACLU, 929 F. Supp. at 831. Today, in addition to fee-based on-line legal research services, many state appellate courts and federal trial and appellate courts provide on-line access to their opinions for free. Many of these opinions are available on-line within hours of their issuance.

(20.) Approximately 90 million cases were filed electronically in state courts in 1998. See THE TENNESSEAN, supra note 16 (citing the most recent data obtained from the National Center for State Courts). “Colorado is in the process of introducing the first statewide ‘e-filing’ system, which allows lawyers to file motions and divorce papers over the Internet. Other large judicial systems, such as those in San Diego and San Francisco, also have allowed some documents to be filed online, and many more are studying this issue.” Id.

(21.) E-mail is the common name for simple mail transfer protocol (“smtp”). See ABA White Paper, supra note 12. Use of e-mail to communicate with clients also raises ethical issues, most notably, inadvertent disclosure of confidential information and communications subject to attorney-client privilege. See Harris, supra note 14, at 125. See ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 99-413 (1999) (authorizing unencrypted e-mail communications with clients based upon reasonable expectation), available at http://www.abanet.org/cpr/fo99-413.html (last visited May 7, 2002) (on file with the Rutgers Computer and Technology Law Journal).

(22.) See Leonard T. Nuara & Marisa Falero, Proceed With Caution: Lawyer Ethics And The Internet, in WHAT LAWYERS NEED TO KNOW ABOUT THE INTERNET, at 285 (PLI Pats., Copyrights, Trademarks, and Literary Prop. Course Handbook Series No. 583, 1999)

(23.) See IMA Report, supra note 13. But cf. ABA White Paper, supra note 12. “A 1997 ABA survey revealed that 98 percent of large law firms (those with 75 or more lawyers) offered Internet access to at least some members of the firm and 61 percent of the survey respondents indicated the firms used the Internet to market their practices.” Id. (citing ABA LEGAL TECH. RESOURCE CENTER, Large Law Firm Technology Survey: 1997 Survey Report, at 2 (1997). Further, approximately 900,000 lawyers are listed on-line in the Martindale-Hubbell Internet directory. Id.

(24.) See IMA Report, supra note 13.

(25.) See generally Lawrence Duncan MacLachlan, Gandy Dancers on the Web: How the Internet Has Raised the Bar on Lawyers’ Professional Responsibility to Research and Know the Law, 13 GEO. J. LEGAL ETHICS 607, 608 (2000) (arguing, among other things, that the “minimum standards of professional competence will rise” as the availability of legal and government information on the Internet increases).

(26.) See generally Malakoff & Snyder, supra note 14

(27.) Generally, the majority of foreign legal systems expressly prohibit lawyer advertising. See Mary C. Daly, The Ethical Implications of the Globalization of the Legal Profession: A Challenge to the Teaching of Professional Responsibility in the Twenty-First Century, 21 FORDHAM INT’L L.J. 1239, 1295 (1998) (citing Lauren Doborwalski, Maintaining the Dignity of the Profession: An International Perspective on Lawyer Advertising and Solicitation, 12 DICK. J. INT’L L. 367 (1994)). This article does not address potential violations of applicable international laws governing lawyer advertising.

(28.) This article addresses the need for uniformity in regulating lawyer advertising on the Internet by developing a national standard. Many multijurisdictional issues raised with respect to lawyer Internet advertising in U.S. jurisdictions are also legitimate concerns in the international arena. Some commentators suggest that the Public International Customary Law that has developed out of political, economic and social practices of civilized nations will be instrumental in shaping “cyberlaw” governing commercial advertising. See Mitchel L. Winick et al., Attorney Advertising On The Internet: From Arizona To Texas–Regulating Speech On The Cyber-Frontier, 27 TEX. TECH. L. REV. 1487, 1573-79 (1996).

(29.) Several commentators have argued the need for uniform standards. See Louise L. Hill, Lawyer Communications on the Internet: Beginning the Millennium with Disparate Standards, 75 WASH. L. REV. 785, 812-13 (2000) (with respect to lawyer advertising, observing that “[s]ome states incorporate safe-harbor provisions in their regulations, which list permitted information presumed to be in compliance with the rules.”) See also Krakaur, supra note 3 (reviewing the state of Internet regulation and arguing the need for national standards).

(30.) Bates v. State Bar of Arizona, 433 U.S. 350, 371 (1977).

(31.) Id. (citing H. DRINKER, LEGAL ETHICS 5, 210-11 (1953)). Although theoretically, lawyers have a professional obligation to provide some legal services pro bono, today the general public is well aware that lawyers engage in the practice of law to earn a living.

(32.) See Hill, supra note 29, at 789-90. See also ABA White Paper, supra note 6, at 2 (noting that Abraham Lincoln was one of the most renowned lawyers who placed legal advertisements in newspapers and wrote letters to solicit business from the railroads).

(33.) Hill, supra note 29, at 789-90

(34.) See Hill, supra note 29, at 790.

(35.) See ABA White Paper, supra note 12, at 2.

(36.) See Hill, supra note 29, at 791.

(37.) Id.

(38.) Hill, supra note 29 at 791, ABA White Paper, supra note 12, at 2.

(39.) See ABA White Paper, supra note 12, at 2. While Canon 27 banned lawyer advertising, it did permit lawyers to distribute business cards. Id.

(40.) See Hill, supra note 29, at 792-3.

(41.) See ABA White Paper, supra note 12, at 3. See also Hill, supra, note 29, at 792

(42.) ABA White Paper, supra note 12, at 3

(43.) ABA White Paper, supra note 12, at 3.

(44.) Hill, supra note 29, at 796 at n. 66.

(45.) 433 U.S. 350 (1977).

(46.) Id.

(47.) The Arizona Bar disciplinary rule at issue in Bates provides: (B) A lawyer shall not publicize himself, or his partner, or associate, or any other lawyer affiliated with him or his firm, as a lawyer through newspaper or magazine advertisements, radio or television announcements, display advertisements in the city or telephone directories or other means of commercial publicity, nor shall he authorize or permit others to do so in his behalf.

However, a lawyer recommended by, paid by, or whose legal services are furnished by, a qualified legal assistance organization may authorize or permit or assist such organization to use means of dignified commercial publicity, which does not identify any lawyer by name, to describe the availability or nature of its legal services or legal service benefits. This rule does not prohibit limited and dignified identification of a lawyer as a lawyer as well as by name:

(1) In political advertisements when his professional status is germane to the political campaign or to a political issue.

(2) In public notices when the name and profession of a lawyer are required or authorized by law or are reasonably pertinent for a purpose other than the attraction of potential clients.

(3) In routine reports and announcements of a bona fide business, civic, professional, or political organization in which he serves as a director or officer.

(4) In and on legal documents prepared by him.

(5) In and on legal textbooks, treatises, and other legal publications, and in dignified advertisements thereof.

(6) In communication by a qualified legal assistance organization, along with the biographical information permitted under DR 2-102(A)(6) (biographical information that may be listed in a reputable law list or legal directory’), directed to a member or beneficiary of such organization.

Ariz. Disciplinary Rule 2-101(B).

DR 2-101(B) was incorporated into Rule 29(a) of the Supreme Court of Arizona at 17 ARIZ. REV. STAT. Sup. Ct. R. 42, R. of Prof’l Conduct, Ethics R. 7.1 (2001). Bates, 433 U.S. at 355-56 n.5.

(48.) Bates at 353.

(49.) 15 U.S.C. [subsections] 1, 2 (2001).

(50.) Bates, 433 U.S. at 353.

(51.) Id. at 354.

(52.) Id. In the Appendix to its opinion, the Court set forth in its entirety the advertisement at issue. Id. at 385. Considering the proliferation of legal advertising on television, radio, newspapers, billboards, yellow pages, etc., the advertisement at issue in Bates was comparatively uncontroversial.

(53.) Id. at 356.

(54.) Id.

(55.) Id. at 356. See also In re Bates, 555 P.2d 640, 643,645 (Ariz. 1976). The lawyers further contended that state rule DR 2-101(B) violated their equal protection and due process rights and that the regulation was vague. Bates at 358 n.9. The Arizona court rejected those claims, which were not presented for review in their appeal to the U.S. Supreme Court. Id.

(56.) Bates, 433 U.S. at 356-57

(57.) Bates, 433 U.S. at 363.

(58.) Id. at 383. On appeal in the U.S. Supreme Court, the State Bar of Arizona presented six arguments in support of its authority to impose and enforce DR 2-101(B) governing lawyer advertising: (1) the adverse effect on the professionalism

(59.) Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557, 561, 566 (1980) (setting forth a four-part analysis for commercial speech cases). In In re R.M.J., the U.S. Supreme Court applied the Central Hudson analysis to lawyer advertising. 455 U.S. 191,203,206 (1982).

(60.) Bates, 433 U.S. at 384.

(61.) 425 U.S. 748 (1976).

(62.) Bates, 433 U.S. at 363-65.

(63.) Id. at 363.

(64.) Id. at 364 (citations omitted).

(65.) Va. State Bd. of Pharmacy, 425 U.S. at 773.

(66.) Bates, 433 U.S. at 383-84. See also Va. State Bd. of Pharmacy, 425 U.S. at 771-72 (“[M]uch commercial speech is not provably false, or even wholly false, but only deceptive or misleading. We foresee no obstacle to a State’s dealing effectively with this problem. The First Amendment, as we construe it today, does not prohibit the State from insuring that the stream of commercial information flow cleanly as well as freely.”) (citations and footnote omitted).

Following Bates, the Court has reviewed several cases concerning the extent to which states could regulate lawyer communications with non-lawyers. See, e.g., Fla. Bar v. Went For It, Inc., 515 U.S. 618 (1995) (prohibiting lawyers from sending direct mailings targeted to accident victims and their families for thirty-days after the accident did not violate the First and Fourteenth Amendments)

(67.) Bates, 433 U.S. at 383. See also ABA White Paper, supra note 12, at 13.

(68.) See, e.g., R.A.V. v. St. Paul, 505 U.S. 377 (1992).

(69.) See Cent. Hudson Gas & Elec., 447 U.S. at 562-63 (“The Constitution therefore accords a lesser protection to commercial speech than to other constitutionally guaranteed expression.”) See also Hill, supra note 29, at 793-95 (reviewing the history of lawyer advertising and observing that commercial speech receives only partial First Amendment protection).

(70.) See Hill, supra note 29, at 795-96.

(71.) Id. at 802 (“[T]he movement that led to the Model Code’s replacement began in the 1970’s, when members of the bar contended that the tripartite structure of the Model Code was confusing.”)

(72.) Id.

(73.) See ABA Ethics 2000 Report, supra note 10, at xi.

(74.) See id.

(75.) See Hill, supra, note 29, at 810-11.

(76.) Id.

(77.) Id.

(78.) See id. at 803-810.

(79.) See Moulton, supra note 2, at 96 (“[m]ost states’ rules are close to identical, in substance if not in precise language.”) See also STEPHEN GILLERS & ROY D. SIMON, REGULATION OF LAWYERS: STATUTES AND STANDARDS 3 (2002)_ (stating that “there are significant variations among the states, especially regarding such key issues as conflicts, confidentiality, and advertising”). Gillers and Simon review the ABA Model Rules of Professional Conduct, as amended through August 1999. The authors employ a seven-part format in presenting each rule: (1) the black letter rule of each Model Rule

(80.) Hill, supra note 29, at 855.

(81.) The ABA Commission on Advertising is now known as the ABA Commission on Responsibility in Client Development. ABA White Paper, supra note 12, at 1-2. See also, Athey, supra note 14, at 501 n. 18. In 1998, the Commission faced the possibility of being abolished. GILLERS & SIMON, supra note 80, at 360-61. Saved by protests from many in the legal profession, today the Commission focuses on three principle objectives: “(1) advancing ideas about dignity and professionalism in lawyer marketing and the caselaw, ethics rules, and policies that govern lawyer marketing

(82.) See ABA White Paper, supra note 12, at 2.

(83.) See id. at 29.

(84.) See id. at 29-36.

(85.) See Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557, 561 (1980). In Central Hudson, the Court stated that “[c]ommercial expression not only serves the economic interest of the speaker, but also assists consumers and furthers the societal interest in the fullest possible dissemination of information.” Id. at 561-62. The court reiterated the four-part analysis applicable to commercial speech cases and applied it to the public utility regulation at issue: (1) whether the expression concerns lawful activity and is not misleading, and, therefore protected by the First Amendment

(86.) See Discovery Network, 507 U.S. at 421. See also Athey, supra note 14, at 505 n. 36.

(87.) See Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 638 (1985) (citing Central Hudson, 447 U.S. at 561).

(88.) See ABA White Paper, supra note 12, at 12.

(89.) Id.

(90.) Id. (citing Riley v. Nat’l Fed’n of the Blind of North Carolina, 487 U.S. 781, 796 (1988) (finding that if “component parts of a single speech are inextricably intertwined, [the Court] cannot parcel out the speech, applying one test to one phrase and another test to another phrase”)).

(91.) ABA White Paper, supra note 12, at 12 (citing Central Hudson Gas, 447 U.S. at 563). See also Zauderer, 471 U.S. at 637 n.7 (affirming that “advertising that ‘links a product to a current public debate’ is not thereby entitled to the constitutional protection afforded noncommercial speech”).

(92.) See ABA White Paper, supra note 12, at 12.

(93.) Id. at 12.

(94.) Id. Judging by the early ethics opinions concerning lawyer and law firm Internet communications, information about the lawyer or the law firm is advertising, and therefore subject to ethical rules governing advertising. See discussion infra Part III (discussing various state and bar association ethics opinions).

(95.) A proposed preamble and recommended revisions of Model Rules 7.1 through 7.3 are set forth in the Appendix of the ABA White Paper. ABA White Paper, supra note 12, at 29-36. The Commission acknowledges that effecting a change through the preamble rather than the rules is a departure from the traditional style of the rules, but argues that substance should be elevated over form. Id.

(96.) ABA Ethics 2000 Report, supra note 10, at xi. See also GILLERS & SIMON, supra note 80, at 3-4 (noting that the Ethics 2000 Commission, chaired by Chief Justice E. Norman Veasey of the Delaware Supreme Court, had planned in 1997, to “comprehensively examine the Model Rules to determine whether amendments are needed.” See Moulton, supra note 2, at 91 (discussing the current disparity between state ethics rules and finding that “[t]he great majority of state amendments concern either confidentiality or information about legal services (advertising and solicitation)”).

(97.) See ABA Ethics 2000 Report, supra note 10, at xi.

(98.) See id.

(99.) See ABA Ethics 2000 Report, supra note 10, at xi.

(100.) See MODEL RULES OF PROF’L CONDUCT R. 1.2 (Proposed Amendments, Reporter’s Explanations of Changes, 2000).

(101.) Established in 1936, the House of Delegates, the ABA’s policy-making body, is responsible for control and administration of the ABA. ABA Leadership: House of Delegates, at 1 (2001), available at http://www.abanet.org/leadership/delegates.html (last visited Feb. 17, 2002). The House of Delegates meets during the ABA annual and mid-year meetings. Id. Presently, the House of Delegates consists of 535 members comprised of the following: 52 state delegates, 212 state bar association delegates, 82 local bar association delegates, 18 delegates-at-large, 73 present and former officers and board members, 65 section, division and conference delegates, 2 ex-officio members, 29 affiliated organization delegates, 1 Virgin Islands Bar Association, 1 Guam/Commonwealth of the Northern Mariana Islands. Id. Where the House of Delegates takes action on specific issues proposed that action becomes official policy of the ABA. Id.

(102.) ABA News Release, ABA Begins Action on Updating Ethics Rules, Adopts Election Administration Guidelines (Aug. 15, 2001), at http://www.abanet.org/media/aug01/houseaction.html (last visited Mar. 6, 2001).

(103.) Id. Following the House of Delegates approval of the proposed revisions to the Model Rules, these rules will “be circulated to the state supreme courts and ethics agencies for their consideration.” Id. Only where a state takes action to adopt the proposed ABA ethics rules will these new measures have any effect on lawyers’ professional conduct in that state. Id.

(104.) Id. The House of Delegates considered proposed revisions from the Preamble through Rule 1.10. Id. With few exceptions, the House of Delegates approved all of the Commission’s recommendations. See Ethics 2000 Commission, at http://www.abanet.org/cpr/e2k-summary_2001.html (last visited Feb. 17, 2002) (briefly summarizing actions taken by the House of Delegates at the ABA 2001 Annual Meeting). See also Daily Journal, at http://www.abanet.org/ftp/pub/leadership/2001journal.doc (last visited Feb. 17, 2002) (providing a complete list of actions taken by the House of Delegates at the 2001 Annual Meeting)

(105.) MODEL RULES OF PROF’L CONDUCT R. 7.1 (Proposed Amendments 2000).

(106.) MODEL RULES OF PROF’L CONDUCT R. 7.1 (Proposed Amendments 2000). In response to criticism for being overly broad, subsections (b) and (c) have been moved to the Comments to proposed Model Rule 7.1. MODEL RULES OF PROF’L CONDUCT R. 7.1 (Proposed Amendments, Reporter’s Explanation of Changes, 2000).

(107.) MODEL RULES OF PRO’L CONDUCT R. 7.2(a) (Proposed Amendments 2000). The section is revised “to accommodate the new technology that is currently being used by law firms to market legal services–e.g., Websites and e-mail.” MODEL RULES OF PROF’L CONDUCT R. 7.2 (Proposed Amendments, Reporter’s Explanation of Changes, 2000).

(108.) By expressly recognizing electronic communication as a permissible form of lawyer communications, proposed Model Rule 7.2(a) sufficiently addresses the current state of technology. As new technologies emerge that are not specifically enumerated in the rule, states, once again, will need to rely on the “catch-all” public media category. In fact, some early ethics opinions already have taken the position that a lawyer communicating on the Internet is communicating through public media and thereby is subject to state regulations governing advertising. See discussion infra Part III.

(109.) MODEL RULES OF PROF’L CONDUCT R. 7.2(b) (Proposed Amendments 2000).

(110.) See id. The Commission believes that requiring lawyers to retain copies of all advertisements for two years is too burdensome and notes that, generally, “such records are seldom used for disciplinary purposes.” MODEL RULES OF PROF’L CONDUCT R. 7.2 (Proposed Amendments, Reporter’s Explanation of Changes, 2000). Additionally, the ABA White Paper explains further that numerous questions are raised by the retention requirement and lawyer web pages: “[t]he Internet creates the question of what a ‘copy’ is. Is it printed or can it be electronic? Is a lawyer required to retain the entire website or only the home page? Does a lawyer need to retain all changes to a website no matter how insignificant? Must a lawyer retain links the firm makes to other sites? Must the lawyer retain the html code language if there is a challenge based on meta tags?” ABA White Paper, supra note 12, at 22 (citations omitted). But cf. Athey, supra note 14 at 514-515 (stating that maintaining electronic copies of advertising is not unduly burdensome and that this requirement should be retained). Although retaining and storing hard copies may become burdensome, electronic storage, such as floppy disks, zip disks, and CD-ROMs provide efficient, economical means to comply with the retention rule.

(111.) See MODEL RULES OF PROF’L CONDUCT R. 7.2 (Proposed Amendments 2000).

(112.) MODEL RULES OF PROF’L CONDUCT R. 7.2 cmt. 2 (Proposed Amendments 2000).

(113.) MODEL RULES OF PROF’L CONDUCT R. 7.2(c) (Proposed Amendments 2000).

(114.) MODEL RULES OF PROF’L CONDUCT R. 7.2 (Proposed Amendments, Reporter’s Explanation of Changes, 2000). Comment 5 to Proposed Model Rule 7.2 permits lawyers to pay “advertising and advertising-related expenses,” including “costs of directory listings, newspaper ads, television and radio airtime, domain-name registrations, banner ads and similar expenses.” MODEL RULES OF PROF’L CONDUCT R. 7.2 cmt. 5 (Proposed Amendments 2000).

(115.) See MODEL RULES OF PROF’L CONDUCT R. 7.2 cmt. 3 (Proposed Amendments, 2000), at 366-67. Although use of the Internet and e-mail by lawyers and law firms is expressly approved, the Commission emphasizes that such communications must be lawful, that is, must comply with laws, such as the prohibition against spamming, which is unsolicited mass electronic mailing of commercial messages. See Reporter’s Explanation of Changes to Model Rule 7.2, See MODEL RULES OF PROF’L CONDUCT R. 7.2 (Proposed Amendments, Reporter’s Explanations of Changes, 2000, at 368-69.at 368-69.

(116.) See, e.g., Florida Bar v. Went for It, Inc., 515 U.S. 618 (1995)

(117.) See MODEL RULES OF PROF’L CONDUCT R. 7.3(a) (Proposed Amendments 2000). Listed as exceptions to the proscription against direct solicitation of prospective clients are lawyers, family members, close personal friends, or persons with whom the lawyer has a prior professional relationship. See MODEL RULES OF PROF’L CONDUCT R. 7.3(a)(1) (2) (Proposed Amendments 2000). The Commission observes that the ABA Model Code and approximately ten states permit lawyers to have such in-person contact with close personal friends. Reporter’s Explanation of Changes, Proposed Model Rule 7.3. Subsection (b) provides “A lawyer shall not solicit professional employment from a prospective client by written, recorded or electronic communication or by in-person, telephone or real-time electronic contract even when not otherwise prohibited by paragraph (a), if the prospective client has made known to the lawyer a desire not to be solicited by the lawyer

(118.) MODEL RULES OF PROF’L CONDUCT R. 7.3 (Proposed Amendments, Reporter’s Explanation of Changes, 2000).

(119.) MODEL RULES OF PROF’L CONDUCT R. 7.3(c) (Proposed Amendments 2000). Further communications with a prospective client who does not respond after receiving a letter or other communication may violate proposed Model Rule 7.3(b). Id. at R. 7.3(b). Some jurisdictions impose a 30-day restriction on targeted direct mailings to disaster or accident victims. See Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995) (finding constitutional Florida Bar rule prohibiting lawyers from using direct mail to solicit personal injury or wrongful death clients within 30 days of the accident).

(120.) See MODEL RULES OF PROF’L CONDUCT R. 7.3 cmts. 1-2 (Proposed Amendments 2000). Given the potential for abuse in such situations coupled with the fact that the content of such communications is not open to third-party scrutiny, the Commission believes these conversations are “likely to approach (and occasionally cross) the dividing line between accurate representations and those that are false and misleading”. Id. at R. 7.3 cmt. 3.

(121.) MODEL RULES OF PROF’L CONDUCT R. 7.4 cmt. 3 (Proposed Amendments 2000).

(122.) MODEL RULES OF PROF’L CONDUCT R. 7.4 (d) (Proposed Amendments 2000).

(123.) Id.

(124.) MODEL RULES OF PROF’L CONDUCT R. 7.5 cmt. 1 (Proposed Amendments 2000)

(125.) Id.

(126.) See MODEL RULES OF PROF’L CONDUCT R. 7.2 (Proposed Amendments, Reporter’s Explanation of Changes, 2000). See also Pritchard Law Webs, The Latest Ethics 2000 Commission Proposals for Revisions to ABA Model Rules of Professional Conduct for Lawyers: Summary and Comments, at http://www.priweb.com/legalethics4.html (last visited Jan. 30, 2002) (on file with the Rutgers Computer and Technology Law Journal) (stating that a lawyer who practices from a home office must disclose his or her home address despite a preference for keeping such information private).

(127.) MODEL RULES OF PROF’L CONDUCT R. 7.5 cmt. 1 (Proposed Amendments 2000).

(128.) See Lawrence J. Fox & Susan Martyn, Minority Report Concurring In Great Part

(129.) Id.

(130.) Id.

(131.) Id.

(132.) See Pa. Bar Ass’n Comm. on Legal Ethics and Prof’l Responsibility, Op. 96-17 (1996).

(133.) See generally William H. Hornsby, Jr., The Ethical Boundaries of Selling Legal Services in Cyberspace, at http://www.computerbar.org/netethics/abawill.html (last visited Jan. 30, 2002) (on file with the Rutgers Computer and Technology Law Journal) (noting that “most lawyers who use the internet in its reasonable capacity will be proposing commercial transaction[s] as they do in law firm brochures, defining the capabilities of the firm, the history of its achievements and the expertise of its partners.”).

(134.) Shapero, 486 U.S. at 473 (“Our lawyer advertising cases have never distinguished among various modes of written advertising to the general public.”). But cf. N.Y. State Bar Ass’n Comm. on Prof’l Ethics, Op. 709 (1998), available at http://www.nysba.org/opinions/Opinion709.html (advising of the need for conflict checks and stating that “an Internet website advertisement is more analogous to a radio or TV broadcast, in which the attorney has no means of identifying the audience, than it is to a mass mailing in which the address list is within the attorneys [sic] control.”)

(135.) Though frequently characterized as a medium “the Internet, and particularly that part of it known as the World Wide Web, is best described as a combination of the print and electronic media.” T. K. Read, Pushing the Advertising Envelope: Building Bill Boards In the Sky Along the Information Superhighway, available at http://www.computerbar.org/netethics/read.html (last visited Jan. 30, 2002) (citing David Loundy, the revised E-Law: Legal Issues Affecting Computer Information Systems Operator Liability, 3 ALB. L.J. SCI. & TECH. 19, 89 (1993)).

(136.) See Nuara & Falero, supra note 22, at 74-75.

(137.) See Cent. Hudson Gas & Elec. v. Pub. Serv. Comm’n of N.Y., 447 U.S. at 557.

(138.) Id. Proposed Model Rule 7.1 governing communications concerning lawyer’s services provides as follows: “A lawyer shall not make a false or misleading communication about a lawyer or the lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.”

(139.) See Westermeier, supra note 22, at para. 5.

(140.) See ABA White Paper, supra note 12, at 10 (observing that one can assume that lawyers using the Internet to communicate must comply with state ethics rules governing advertising and solicitation, since no ethics opinions have found the rules inapplicable)

(141.) See Malakoff & Snyder, supra note 14, at 7.

(142.) See Ala. State Bar, Op. RO-96-96-07 (1996), available at http://www.legalethics.com.html (last visited Feb. 1, 2002) (on file with the Rutgers Computer and Technology Law Journal).

(143.) See Ariz. State Comm. on the Rules of Prof’l Conduct, Formal Op. 99-06 (1999).

(144.) Id.

(145.) Id.

(146.) See Ariz. State Bar Comm. on the Rules of Prof’l Conduct, Formal Op. 97-04 (1997).

(147.) Id. See also Ariz. State Bar Comm. on the Rules of Prof’l Conduct, Formal Op. 2001-05 (2001). Law firm domain names do not have to be identical to the firm’s actual name, but otherwise must comply with the rule prohibiting false and misleading communications. Id.

(148.) See Cal. State Bar Ass’n Standing Comm. on Prof’l Responsibility and Conduct, Interim Op. 96-0014 (2000), available at http://www.calbar.org/2bar/3com/3cp9903a.html (last visited Feb. 14, 2002) (on file with the Rutgers Computer and Technology Law Journal) (“The website contents, including its words, sounds, and images, must be chosen carefully to satisfy all applicable California requirements.”)

(149.) Cal. State Bar Ass’n Standing Comm. on Prof’l Responsibility and Conduct, Interim Op. 96-0014 (2000).

(150.) See Conn. Bar Ass’n Comm. on Prof’l Ethics, Op. 97-29 (1997).

(151.) See Malakoff & Snyder, supra note 14, at 159, Exhibit A: State Ethics Opinions and Regulations (discussing Florida Bar Internet guidelines)

(152.) See Malakoff & Snyder, supra note 14, at 159. The Florida Bar divides websites into two components, the homepage and information beyond the homepage, and sets separate requirements for each. Id. Homepages are defined in the guidelines as “the first [or introductory] page of a lawyer or law firm’s website.” Id. Homepages must comply with Rules 4-7.1 to 4-7.8, regulating lawyer advertising, which requires, among other things, the geographic location of where the lawyer who will perform legal services principally practices law and a “hiring disclosure.” Id. The hiring disclosure informs the viewer that the “hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you free written information about our qualifications and experience.” Id.

(153.) See id. for the Florida Bar’s definition of “homepage.”

(154.) See id. at 160.

(155.) See Ill. State Bar Ass’n, Advisory Opinion on Prof’l Conduct 96-10 (1997), available at http://www.illinoisbar.org/courtsw11/ethicsopinions/96-10.asp (last visited Dec. 3, 2001) (on file with the Rutgers Computer and Technology Law Journal).

(156.) Id.

(157.) See Iowa Sup. Ct. Bd. of Prof’l Ethics & Conduct, Op. 95-21 (1996), available at http://www.iowabar.org.ethics.nsf (last visited Dec. 3, 2001) (on file with the Rutgers Computer and Technology Law Journal).

(158.) Iowa Sup. Ct. Bd. of Prof’l Ethics & Conduct, Op. 96-14 (1996), available at http:#www.iowabar.org/ethics.nsf

(159.) Nuara & Falero, supra note 22, at 296.

(160.) See Iowa Sup. Ct. Bd. of Prof’l Ethics & Conduct, Op. 96-14 (1996).

(161.) See Ky. Ethics Corem’n, Advisory Op. E-403 (1998), available at http://www.legalethics.com/ethics.law?state=Kentucky (last visited Jan. 29, 2002) (on file with the Rutgers Computer and Technology Law Journal).

(162.) See Me. Bar Ass’n Prof’l Ethics Comm’n, Op. 174 (2000).

(163.) Id. at 3 n. 1.

(164.) See Westermeier, supra note 22, at 18 (citing Md. State Bar Ass’n Comm’n on Ethics, Op. 97-26 (1997)).

(165.) See http://massbar.org/phpslash/public_html (last visited April 5, 2002) (citing Mass. Bar Ass’n, Op. 98-2).

(166.) See Mich. Bar Ass’n, Op. RI-276 (1996), available at http://www.legalethics.com/opins.html (last visited Nov. 28, 2001) (on file with the Rutgers Computer and Technology Law Journal).

(167.) See Mo. Bar, Office of the Chief Disciplinary Counsel, Informal Op. 980029, available at http://www.mobar.net/opinions (last visited Dec. 3, 2001) (on file with the Rutgers Computer and Technology Law Journal).

(168.) See id. See also Mo. Bar, Office of the Chief Disciplinary Counsel, Informal Op. 980268 (2000), available at http://www.mobar.net/opinions (last visited Dec. 3, 2001) (on file with the Rutgers Computer and Technology Law Journal).

(169.) See New York County Lawyers’ Ass’n, Comm. on Prof’l Ethics, Op. 721 (1997). See also Ass’n of the Bar of the City of New York Comm. on Prof’l and Judicial Ethics, Op. 1998-2 (1998), available at http://www.obcny.org/eth1998.htm (last visited Jan. 29, 2002) (advising that “law firm websites that seeks to interest existing or potential clients in retaining the firm constitutes ‘advertising’ and ‘other publicity'” and cautioning that disclaimers may not shield law firm from claim that attorney-client relationship formed), New York State Bar Ass’n, Comm. on Prof’l Ethics, Op. 709 (1998), available at http://www.nysba.org/opinions/Opinion709.html (last visited Dec. 3, 2001) (on file with the Rutgers Computer and Technology Law Journal).

(170.) See Ass’n. of the Bar of the City of New York Comm. on Prof’l and Judicial Ethics, Op. 1998-2 (1998).

(171.) See Malakoff & Snyder, supra note 14, at 163 (discussing N.C. State Bar Ass’n, Ethics Comm., Op. RPC 239 (1996) (Internet advertising)).

(172.) See id. (discussing N.C. State Bar Ass’n, Ethics Comm., Op. RPC 241 (1996) (participation in a directory of lawyers on the Internet)).

(173.) N.C. State Bar Ass’n, Ethics Comm., Op. RPC 239 (1996), available at http://www.ncbar.com/eth_op/ethics (last visited Jan. 29, 2002).

(174.) N.C. State Bar Ass’n, Ethics Comm., Op. RPC 241 (1996), available at (last visited Jan. 29, 2002) (on file with the Rutgers Computer and Technology Law Journal).

(175.) See Sup. Ct. of Ohio, Bd. of Comm’rs on Grievances and Discipline, Op. 2000-6 (2000).

(176.) Id.

(177.) Id.

(178.) See Pa. Bar Ass’n Prof’l Guidance Comm., Informal Op. 96-17 (1996)

(179.) Pa. Ethics Op. No. 96-17 (1996), 1996 WL 284343 (1996).

(180.) See Pa. Bar Ass’n Prof’l Guidance Comm., Informal Op. 98-85 (1998), available at http://www.pabar.org/ethicsopinions/98-85.htm (last visited Dec. 12, 2001) (on file with the Rutgers Computer and Technology Law Journal). The Philadelphia Bar Association issued an informal opinion discussing lawyer participation in real-time Internet communication, such as chat room communication. See Philadelphia Bar. Assoc., Ethics Op. 98-6 (1998).

(181.) S. C. Bar Ethics Advisory Comm., Op. 94-27 (1995), available at http://www.gondalf.scbar.org/ethics/opinions/9427.htm (last visited Nov. 28, 2001) (on file with the Rutgers Computer and Technology Law Journal). Opinion 94-27 also discusses the issues raised by, and the propriety of, a physically disabled lawyer representing clients exclusively through an online service. See Malakoff & Snyder, supra note 14, at 174-75 (re-examining Op. 94-27 in the context of client communications conducted through e-mail.).

(182.) See S. C. Bar Ethics Advisory Comm., Op. 94-27 (1995), http://gandalf.scbar.org/ethics/opinions/9427.htm (last visited Dec. 12, 2001) (on file with the Rutgers Computer and Technology Law Journal).

(183.) See Steve France, The Long Arm of Legal Ethics: Lawyers in Cyberspace Can’t Shake Earthbound Practice Regulations, 85 A.B.A.J. 19 (Oct. 1999) (citing Tenn. Bar Ass’n, Formal Ethics Op. 99-144 (1999)).

(184.) See Tenn. Bar Ass’n, Ethics Op. 95-A-570 (1995)

(185.) See Tenn. Bar Ass’n, Ethics Op. 95-A-576 (1995).

(186.) See The LJX Files, Interpretive Comment on Part 7 of the Texas Disciplinary Rules of Professional Conduct as applied to the Internet, Tex. Disc. Rules of Prof. Conduct, Part 7, Interpretive Comment 17, http://www.ljx.com/LJXfiles/netads/texads.html (Mar. 8, 2000)

(187.) See Utah Bar Ethics Advisory Opinion Comm., Op. 97-10 (1997), available at http://www.utahbar.org/opinions/html/97-10.html (last visited Nov. 28, 2001) (on file with the Rutgers Computer and Technology Law Journal) (discussing applicability of advertising rules to websites, newsgroups, e-mail and the applicability of solicitation rules to chat room participation).

(188.) See Law Firm Web Sites: Hey–Watch Your Language!, VT. B. J. 29, 31 (Dec. 2000) [hereinafter Law Firm Web Sites]. In concluding that lawyer Web pages are subject to ethical rules governing advertising and solicitation, the Committee adopted the Opinion of the Ill. State Bar Ass’n, Advisory Op. on Prof’l Conduct 96-10 (1997) (determining that Web pages not directed to specific individuals or groups are comparable to indirect means of communicating with existing or potential clients, such as advertisements in telephone yellow pages and other print advertisements). Id. at 29.

(189.) See Law Firm Web Sites, supra note 188, at 29. The lawyer sought advice on the following questions:

[1] Is the website “advertising” within the meaning of the applicable Rules of Professional Conduct?

[2] Is the website a direct or indirect means of contacting or communicating with prospective clients known to be in need of legal services and with whom the lawyer has no family or prior professional relationship?

[3] Is the lawyer required to comply with the provisions of Rule 7.3(c), and include the words “Advertising Material” at the beginning and end of every page of the website?

[4] Does the lawyer’s offer to respond to inquiries from members of the general public seeking information about the law or seeking legal representation invoke any ethical concerns regarding the establishment of lawyer-client relationships, confidentiality, conflict of interest or malpractice? [and]

[5] Will the use of disclaimers (a) protect the lawyer from the risk of creating lawyer-client relationships with those who seek on-line legal information or advice through the website and the lawyer’s e-mail address

(190.) Id. The Committee further explains that where the lawyer initiates contact with potential clients, for example, by e-mails to specific groups identified through chat rooms or bulletin boards, then such contact is direct and thereby subject to greater restrictions pursuant to the advertisement and solicitation rules. See id. at 31-32 (citing Ill. State Bar Ass’n, Advisory Op. on Prof’l Conduct 96-10 (1997) and Tenn. Bar Ass’n, Ethics Op. 95-A-570 (1995)).

(191.) See id. at 29, 31 (quoting Comment to Vermont Rules of Prof’l Conduct 7.1 and 7.2) (“all communications about lawyer’s services … specifically including electronic mail, electronic bulletin boards, world-wide websites, chat groups, listservs and mailing lists.”) Vt. Bar Ass’n Advisory Ethics Op. 2000-4 (2000) closes with a sample legal disclaimer. Id. at 33.

(192.) See Va. Bar Ass’n Standing Comm. on Advertising, Op. A-0110 (1998), available at http:// www. vsb. org/ committees/ standing /advertising/ a110.htm (last visited Feb. 15, 2002). The lawyer who advertises on the Internet must retain for at least one year hard copies of the website, including “advertisements in the form of home pages, postings to the bulletin boards, newsgroups, usenets, telnets, etc.” Id. Presumably, usenets or newsgroups are included within the broad category of electronic communications referenced in the Proposed Model Rules, since usenet groups or newsgroups are discussion fora conducted on the Interact. See Forman, supra note 125, at 112. Individuals may post questions, including legal inquiries, on a “global bulletin board” and receive responses from anyone who views the board. A bulletin board is an electronic forum on a network where electronic messages may be posted and browsed by users or delivered in an e-mail message. See Ill. State Bar Ass’n, Advisory Op. on Prof’l Conduct 96-10 (1997). Global bulletin boards are comprised of thousands of usenet groups. See Forman, supra note 112, at 112 (citing http:// www. aol.com /netfind/ scoop/ newsgroup.glossary.html). Despite the fact that the consumer solicits legal information by posting the question on the bulletin board, it is suggested that lawyers who respond include the words “Advertising Material” at the beginning and end of their responses since the prospective client is known to be in need of legal services. See Forman, supra note 112, at 112. While communicating in chat rooms is analogous to in-person solicitation, communicating through usenets is more analogous to sending e-mail messages. Comparable to e-mail, usenet messages can be preserved by printing or downloading them. See Forman, supra note 113, at 112. Thus, rules regulating in-person solicitation should not apply to lawyer communications on usenets or e-mail. Id.

(193.) Va. Bar Ass’n Standing Comm. on Advertising, Op. A-0110 (1998), available at http:/ /www. vsb. org/ committees/ standing/advertising/a110.htm (last visited Feb. 15, 2002).

(194.) Internet Relay Chat (“IRC”) system permits two or more persons to communicate in real time by typing messages that almost instantaneously appears on the participants’ computer screens. ACLU v. Reno, 929 F. Supp. 824, 835 (E.D. Pa. 1996). In ACLU v. Reno, the district court found that participating in an IRC is analogous to engaging in a telephone conversation on a telephone party line. Id. See also Lanctot, supra note 22, at 151-52 (discussing issues raised by lawyer and layperson communications in cyberspace, including inadvertent creation of attorney-client relationship and the effectiveness of disclaimers).

(195.) See Anthony E. Davis, Ethics and Etiquette of Lawyering on the Internet–Part 2, 224 N.Y.L.J. 3, 6 (2000).

(196.) ABA Ethics 2000 Report, supra note 1, at 370. MODEL RULES OF PROF’L CONDUCT R. 7.3(a) (Proposed Amendments 2000), available at http:/ /www. abanet. org/ cpr/ e2k-wholereport_home.html (last visited Feb. 1, 2002). Further, even where such contact is permitted by subsection (a), Rule 7.3(b) prohibits real time electronic communication by a lawyer if “the prospective client makes known to the lawyer a desire not to be solicited by the lawyer

(197.) ABA Ethics 2000 Report, supra note 1, at 370. See also MODEL RULES OF PROF’L CONDUCT R. 7.3 cmt. 1 (Proposed Amendments 2000), available at http:// www. abanet. org/ cpr/ e2k-wholereport_home.html (last visited Feb. 1, 2002)

(198.) See Nuara, supra note 5 at 89.

(199.) Id at 88-89.

(200.) See Utah Bar Ethics Advisory Opinion Comm., Op. 97-10 (1997). See also Davis, supra note 7.

(201.) See Mich. Op. RI-276. See also Davis, supra note 7.

(202.) See Or. State Bar Legal Ethics Comm., Formal Op. 2001-164 (2001).

(203.) See Fl. Bar Standing Comm. on Advertising, Op. A-00-1 (2000).

(204.) See Ill. State Bar Ass’n, Advisory Opinion on Prof’l Conduct 96-10 (1997).

(205.) See Mich. Bar, Op. RI-276.

(206.) See Utah Bar Ethics Advisory Opinion Comm., Op. 97-10 (1997).

(207.) See Va. Bar Ass’n Standing Comm. on Advertising, Op. A-0110 (1998).

(208.) See W. Va. Lawyer Disc. Bd., Op. 98-03 (1998).

(209.) See Philadelphia Bar Ass’n Prof’l Guidance Comm., Op. 98-6 (1998).

(210.) Id.

(211.) See id. See also Davis, supra note 7

(212.) Philadelphia Bar Ass’n Prof’l Guidance Comm., Op. 98-6 (1998). But cf. Mark Hansen, Look Who’s Chatting: Pennsylvania Lawyers Had Better Introduce Themselves on the Internet, 84 A.B.A. J. 20 (1998) (quoting Henry Perritt, Jr., who questions the need to inquire whether participant in chat room is represented by counsel).

(213.) See Jeffrey M. Aresty, Practicing Law in Cyberspace, 16 THE COMPLETE LAW. 40, 44 (1999). Explaining that the Internet is a “completely global entity,” Aresty gives the following as an example of how electronic communications travel:

The path information takes as it travels through cyberspace is never predictable. It may zoom across Canada or Mexico, for example, en route from Los Angeles to Denver. Or, an e-mail from San Francisco to Jerusalem may travel through computers in Italy and Turkey in one direction, while the response might bounce up through Russia, down to Egypt, and across to Brazil before reaching the Bay Area. There is typically no way to predict which international bor Ters will be crossed. Indeed, in cyberspace, there are no borders. Id. at 44. Accord ACLU v. Reno, 929 F. Supp. at 831-32.

(214.) See S.C. APP. CT. R. 418 (1999). See also Davis, supra note 7. Appellate Court Rule 418 is a direct response by South Carolina to out-of-state lawyer advertising and solicitation of clients in South Carolina after a 1994 airline jet crashed killing 37 people. Arthur Garwin, Way Over the Client Limit: Out-of-State Lawyers Who Angle for Business Can Face Sanctions, Loss of Fees, 85 A.B.A. J. 71 (1999).

(215.) S.C. APP. CT. R. 418. See also Davis, supra note 7, at 6.

(216.) See S.C. APP. CT. R. 418. See also Davis, supra note 7, at 6.

(217.) See John Caher, Legal Advertising on the Web Raises Ethical Quandaries, 225 N.Y. L.J. 17 (2001) (“According to Open Directory Project, which tracks Internet traffic, there are approximately 14,000 law-related Web sites today.”) According to the chair of the committee that drafted South Carolina Appellate Court Rule 418, the purpose of the rule is to “level the playing field” for South Carolina lawyers and not to exclude out-of-state lawyers. S.C. APP. CT. R. 418. See Davis, supra note 7, at 6.

(218.) Tombstone websites are purely informational sites containing basic factual information such as name, address, telephone number, fax number, and e-mail address. See Kershen, supra note 26, at 8.

(219.) See Davis, supra note 7, at 6 (observing that “it is by no means inconceivable that an attorney admitted only in New York, with a Web site physically operated in and from New York (but which, of course, can be accessed ‘worldwide’). could be subjected to reciprocal discipline under South Carolina’s rules (or any other state’s equivalent regulations) after a final adjudication by any such state for an alleged Internet violation.”).

(220.) See, generally Gillers & Simon, supra note 80, at 366-68 (discussing Florida advertisement rules). See also Davis, supra note 7, at 6 (citing Florida Bar Rules 3.1.3 (Rules of Discipline

(221.) See ABA Proposed Amendments to the Rules of Professional Conduct, Rules 5.5 and 8.5, and comments. The proposed safe harbor reads as follows:

RULE 5.5: UNAUTHORIZED PRACTICE OF LAW ***

(b) A lawyer admitted to practice in another jurisdiction, but not in this jurisdiction, does not engage in the unauthorized practice of law in this jurisdiction when:

(1) the lawyer is authorized to appear before a tribunal in this jurisdiction by law or order of the tribunal or is preparing for a proceeding in which the lawyer reasonably expects to be so authorized

(2) other than making appearances before a tribunal with authority to admit the lawyer to practice pro hac vice:

(i) a lawyer who is an employee of a client acts on the client’s behalf or, in connection with the client’s matters, on behalf of the client’s other employees or its commonly owned organizational affiliates

(ii) the lawyer acts with respect to a matter that arises out of or is otherwise reasonably related to the lawyer’s practice on behalf of a client in a jurisdiction in which the lawyer is admitted to practice

(iii) the lawyer is associated in a particular matter with a lawyer admitted to practice in this jurisdiction. MODEL RULES OF PROF’L CONDUCT R. 5.5(b) (Proposed Amendments 2000).

(222.) MODEL RULES OF PROF’L CONDUCT R. 5.5 cmt. 1 (Proposed Amendments 2000).

(223.) MODEL RULES OF PROF’L CONDUCT R. 5.5(a) (Proposed Amendments, Reporter’s Explanation of Changes 2000).

(224.) See id.

(225.) MODEL RULES OF PROF’L CONDUCT R. 8.5 (Proposed Amendments 2000).

(226.) MODEL RULES OF PROF’L CONDUCT R. 8.5(b)(1) (Proposed Amendments 2000).

(227.) MODEL RULES OF PROF’L CONDUCT R. 8.5(b)(2) (Proposed Amendments 2000).

(228.) Id. Comment (3) to proposed amendments to Rule 8.5 explains that the safe harbor against discipline is available “for lawyers who act reasonably in the face of uncertainty.” MODEL RULES OF PROF’L CONDUCT R. 8.5 cmt. 3 (Proposed Amendments 2000).

(229.) See MODEL RULES PROF’L CONDUCT R. 8.5(a) (Proposed Amendments 2000)

(230.) MODEL RULES OF PROF’L CONDUCT R. 8.5(a) (Proposed Amendments 2000). The Commission takes the position that jurisdictions other than the one in which the lawyer is admitted should have authority to discipline a lawyer and that the substantive rules of other jurisdictions sometimes should apply. MODEL RULES OF PROF’L CONDUCT R. 8.5 (Proposed Amendments, Reporter’s Explanation of Changes 2000).

(231.) MODEL RULES OF PROF’L CONDUCT R. 8.5 cmt. 1 (Proposed Amendments 2000).

(232.) See also David M. Eisenberg, Questions and Answers About Advertising on the Internet, 43 PRAC. LAW. July 1997, at 79, 81 (discussing jurisdiction based solely on Internet related gambling activity and stating that “if even one Minnesota consumer responds to a fraudulent solicitation posted on the Internet, the state has personal jurisdiction”) (citing State v. Granite Gate Resorts, Inc., No. C6-95-7227, 1996 WL 767431 (D. Minn. Dec. 11, 1996)).

(233.) See, e.g., Reno v. ACLU, 929 F. Supp. 824, 832 (E.D. Pa. 1996) (commenting that no single entity administers the Internet, nor is there a “centralized storage location, control point, or communications channel for the Internet.”)

(234.) 397 So. 2d 1132 (Fla. 1981).

(235.) See id. at 1133.

(236.) Id.

(237.) Id.

(238.) Id.

(239.) Id. at 1133-34.

(240.) 70 Cal. Rptr. 2d 304 (Cal. 1998).

(241.) Id. at 307.

(242.) Id.

(243.) Id. at 306.

(244.) Id. (quoting CAL. BUS. & PROFS. CODE [sections] 6125 (West 1990 & Supp. 2002) (Necessitating active membership in State Bar). Section 6126(a) of the California Business and Professional Code makes violation of Section 6125 a misdemeanor. Id. at 308

(245.) 70 Cal. Rptr. 2d at 309.

(246.) Id.

(247.) Id.

(248.) Id. at 309. The court, however, expressly rejected a per se rule that a person practices law in California whenever that person renders legal advice concerning California law, including where a person “‘virtually’ enters the state by telephone, fax, e-mail, or satellite.” Id.

(249.) Id. at 310-13.

(250.) Id. at 313-14.

(251.) Davis, supra note 7, at 6. See also Needham, supra note 4, at 456 (arguing that “all lawyers licensed by any state should be permitted to give legal advice on federal law and the law of all states in which they are fully admitted to practice.”).

(252.) Davis, supra note 7 at 6. Davis further argues that “[b]ecause choice of ethics law remains an unsettled issue, attorneys licensed only in New York should both adhere to the code provisions regarding websites, but also exercise caution in other Internet applications which could legitimately subject an attorney to another jurisdiction’s regulations regarding the unauthorized practice of law, fee forfeiture and discipline.” Id.

(253.) See Pa. Bar Ass’n Comm. on Legal Ethics and Prof’l Responsibility, Informal Op. 98-85 (1998), available at http://www.pabar.org/ethicsopinions/9885.htm (last visited December 12, 2001) (on file with the Rutgers Computer and Technology Law Journal). With respect to the Commerce Clause, one argument is that state regulation of out-of-state lawyers protects in-state lawyers from competition with out-of-state lawyers. Id. With respect to the Equal Protection Clause, both in-state and out-of-state lawyers may have a claim. Id. Out-of-state lawyers may argue that state regulations are designed to limit out-of-state lawyers’ access to in-state clientele. In-state lawyers may argue that they are denied Equal Protection because they are subject to state regulations governing lawyers and out-of-state lawyers are not. Id.

(254.) Id. at 4.

(255.) Id. at 4. Prior to discussing the sliding scale analysis courts apply to Internet related jurisdiction issues, Informal Opinion 98-85 sets forth the traditional jurisdictional analysis as follows: “Before a court may exercise personal jurisdiction over a person, the due process clause of the United States Constitution requires that there be ‘minimum contacts’ between the person and the forum ‘such that maintenance of the suit does not offend traditional notions of fair play and substantial justice.'” Id. at 5 (quoting International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). “Moreover, the person’s ‘conduct and connection with the forum state must be such that he should reasonably anticipate being haled into court there.'” Id. (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980)).

(256.) See ABA White Paper, supra note 12, at 1-2.

(257.) See N.Y. State Bar Ass’n Comm. on Prof’l Ethics, Op. 709 (1998), available at http://www/nysba.org/opinions/opinion709.html (on file with the Rutgers Computer and Technology Law Journal). See also Davis, supra note 7, at 6 (arguing the need for uniformity stating “[i]t is because of the apparent absurdity of state by state regulation….”).

(258.) See Pa. Bar Ass’n Comm. on Legal Ethics and Prof’l Responsibility, Informal Op. 98-85, available at http://www.pabar.org/ethicsopinions/98-85.htm (last visited Feb. 15, 2002) (on file with the Rutgers Computer and Technology Law Journal). “Assuming sufficient contacts exist or the exercise of personal jurisdiction by a state, a state may take civil or criminal action against a lawyer or law firm for unauthorized practice of law or improper solicitation of prospective clients as defined by that state’s laws based solely upon Internet contacts.” Id.

(259.) Id. at 2.

(260.) Id. at 7-8. See also Costa, supra note 4, at 469-503 (reviewing cases determining the sufficiency of Internet contacts to support jurisdiction)

(261.) See Costa, supra note 4, at 469-93 (citing Pres-Kap, Inc. v. System One, Direct Access, Inc., 636 So. 2d 1351, 1353 (Fla. Dist. Ct. App. 1994)). Pres-Kap involved a breach of contract claim. The Florida District Court of Appeals rejected the argument that New York-based defendant’s access of an online database located in Florida was a sufficient basis for personal jurisdiction. The Court found that the defendant’s argument would be offensive to “traditional notions of fair play and substantial justice.” Costa, supra note 4, at 469-71. In Bensusan Restaurant Corp. v. King, 937 F. Supp. 295, 301 (S.D.N.Y. 1996), aff’d, 126 F.3d 25 (2d Cir. 1997), a trademark infringement case, the court rejected the argument that a Missouri-based defendant’s Internet website constituted “purposeful availment” was sufficient to invoke personal jurisdiction and found that establishing a website to be analogous to merely “placing a product in the stream of commerce.” Costa, supra note 4, at 471-73. In Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414 (9th Cir. 1997), also a trademark infringement case, the Ninth Circuit Court of Appeals found that an Arizona plaintiff’s argument that the Florida-based defendant’s Internet website alone did not demonstrate that defendant sought to target Arizona residents and did not support assertion of personal jurisdiction. Costa, supra note 4, at 473-75.

(262.) Costa, supra note 4,. at 476-86.

(263.) Id. at 475-76 (citing California Software, Inc. v. Reliability Research, Inc., 631 F. Supp. 1356 (C.D. Cal. 1986) (involving a tortious interference with business relations.).

(264.) See Pa. Bar Ass’n Comm. on Legal Ethics and Prof’l Responsibility, Informal Op. 98-85 (1998), available at http://www.pabar.org/ethicsopinions/9885.htm (last visited Feb. 15, 2002) (on file with the Rutgers Computer and Technology Law Journal).

(265.) WINICK, supra note 28, at 1557.

(266.) Id.

(267.) Id.

(268.) Id. (emphasizing that passive websites may be simple or sophisticated or extremely elaborate and may include “text, graphics, video, audio, and complex links to databases throughout the Internet”).

(269.) Id. at 1557.

(270.) Id. at 1557-58.

(271.) Id. at 1558.

(272.) Id. (citing the “green card” case where two Arizona lawyers sent messages to over 6,000 Internet newsgroups as an example of spamming and the irate reactions caused by sending unsolicited e-mail advertising).

(273.) Id. at 1558-59.

(274.) See id. at 1557-59.

(275.) Although it has not been determined the extent to which, if at all, a state constitutionally can discipline an out-of-state lawyer for unauthorized practice of law, Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility, Informal Op. 98-85 further advised that states, however, may impose civil and criminal penalties for Internet related activities where there are sufficient contacts. Pa. Bar Ass’n Comm. on Legal Ethics and Prof’l Responsibility, Informal Op. 98-85 (1998). See also Eisenberg, supra note 231, at 81 (discussing jurisdiction based solely on Internet related gambling activity and stating that “if even one Minnesota consumer responds to a fraudulent solicitation posted on the Internet, the state has personal jurisdiction” (citing State v. Granite Gate Resorts, Inc., No. C6-95-7227, 1996 WL 767431 (D. Minn. Dec. 11, 1996)).

(276.) See Moulton, supra note 2, at 97-98

(277.) See Krakaur, supra note 3, at 54 (discussing the need for uniform national standards).

(278.) See Krakaur, supra note 3. See also ABA Ethics 2000 Report, supra note 10, at xiii.

(279.) See Krakaur, supra note 3.

(280.) See Bates, 433 U.S. at 364.

(281.) See Zacharias, supra note 1, at 344 (arguing that “clients and lay observers are unaware of the disparity among the codes[,]” and the negative effect of “splinter[ed]” regulation on the legal profession’s image). See also Fred C. Zacharias, A Nouveau Realist’s View of Interjurisdictional Practice Rules, 36 S. TEX. L. REV. 1037 (1995) (commenting on the need for uniform professional regulation and proposing uniform regional standards as an alternative avenue in evolution towards uniform national standards).

(282.) See Jesse H. Sweet, Attorney Advertising on the Internet: A Crash Course in Ethics, 24 J. LEGAL PROF. 201, 212 (2000).

(283.) Id. (citing West Legal Directory, State Legal Advertising Restrictions and Disclaimers, available at http:// www. wld. com/ direct/ restrict.htm (last visited Oct. 31, 1999)).

(284.) Id. These states include Hawaii, Illinois, Iowa, Massachusetts, Mississippi, Missouri, Nevada, New Jersey, New Mexico, Rhode Island, Washington and Wyoming. Id.

(285.) See Gillers & Simon, supra note 80, at 361-74. See also Westermeier, supra note 13, paras. 20-22.

(286.) See Gillers & Simon, supra note 80, at 354-74. See also Westermeier, supra note 13, paras. 21-22.

(287.) See also Westermeier, supra note 13, para. 21.

(288.) See Sweet, supra note 282, at 211-17. See also Gillers and Simon, supra note 80, at 354-71.

(289.) See also Zacharias, supra note 1 (discussing some of the effects of disparate standards on lawyers’ conduct and clients’ expectations and arguing that multi-jurisdictional practices and disparate standards, among other things, are grounds for national standards rather than lawyer advertising on the Internet) See also David A. Kessler, Professional Asphyxiation: Why the Legal Profession is Gasping for Breath, 10 GEO. J. LEGAL ETHICS 455 (Spring 1997) (concluding that uniform professional regulations are necessary, notwithstanding the importance of state autonomy).

(290.) See Ethics 2000 Report, supra note 10, at xi.

(291.) See Gillers & Simon, supra note 80, at 349-57.

(292.) Some commentators recommend a national standard to address the issues created by conflicting regulations. See Moulton, supra note 2, at 76. See also Zacharias, supra note 1, at 345-54. Other commentators take the position that it is unlikely Congress will act, and/or Congress should not intrude in an area traditionally regulated by states. See Zacharias, supra note 281, at 1041-42.

(293.) See Moulton, supra note 2, at 76 (citing Stephen R. Burbank, State Ethical Codes and Federal Practice: Emerging Conflicts and Suggestions for Reform, 19 FORDHAM URB. L.J. 969, 974 (1992) and Zacharias, Federalizing Legal Ethics, 73 TEX. L. REV. 335 (1994)).

(294.) See id. at 76-77.

(295.) See id. at 159-61. Professor Moulton comments that in the four-year period following the ABA amendment to Rule 8.5, only three jurisdictions had adopted the rule and “few others appear poised to do so.” Id. at 160 (noting that the District of Columbia, Illinois and Pennsylvania adopted some version of Model Rule 8.5).

(296.) See id. at 101-02 (summarizing the view that a national code of lawyer regulation is necessary) (citing Developments in the Law–Lawyers’ Responsibilities and Lawyers’ Responses, 107 HARV. L. REV. 1547, 1585-86 n.43 (1994), Ted Schneyer, Professional Discipline in 2050: A Look Back, 60 FORDHAM L. REV. 125 (1991)). See also Zacharias, supra note 1, at 340, 345.

(297.) See Zacharias, supra note 1, at 340, 345 (arguing for unified or partially unified regulation of lawyers’ conduct) (citing, among others, Samuel J. Brakel and Wallace D. Loh, Regulating the Multistate Practice of Law, 50 WASH. L. REV. 699, 719 n.62 (1975)) Zacharias presents a thoughtful case for and against national legal ethics standards and proposes several alternative avenues towards uniform regulation. See Zacharias, supra note 1, at 373-79.

(298.) See Zacharias, supra note 1, at 370-71.

(299.) Hill, supra note 29, at 789.

(300.) See Krakaur, supra note 3.

(301.) See T. K. Read, Pushing the Advertising Envelope: Building Bill Boards In the Sky Along the Information Superhighway, at http://www.computerbar.org/netethics/read.htm, at 11 (last visited January 28, 2002) (citing MICHAEL FRAASE, THE WINDOWS INTERNET TOUR GUIDE (1994)).

(302.) See id. (citing Fraase, supra note 301). See also Reno v. ACLU, 929 F. Supp. at 831 (finding that Internet “communications can occur almost instantaneously, and can be directed either to specific individuals, to a broader group of people interested in a particular subject, or to the world as a whole.”).

(303.) See Moulton, supra note 2, at 105-09.

(304.) See generally, Moulton, supra note 2.

(305.) See id. at 163.

(306.) See id. at 163-70.

(307.) See id. at 165-70.

(308.) See id. “[F]undamentally unjust state policy choices, the disincentive for states to supply certain public goods, the destructive impact of certain types of interstate competition, and economies of scale–all are consistent with the basic premise of the American federal system that normative variation ordinarily should be valued and protected.” Id. at 142.

(309.) See id. at 117-54.

(310.) See id.

(311.) See Aresty, supra note 213, at 44. Id. at 44. See also Reno v. ACLU, 929 F. Supp. at 831-32 (“[m]essages between computers on the Internet do not necessarily travel entirely along the same path[.]”).

(312.) See Gillers & Simon, supra note 80, at 352-53.

(313.) Id. at 352.

(314.) Id. at 352-53.

(315.) Id. See also MODEL RULES OF PROF’L CONDUCT R. 7.1, cmt. 3 (Proposed Amendments 2000).

(316.) See MODEL RULES OF PROF’L CONDUCT R. 7.2 (Proposed Amendments 2000)..

(317.) See MODEL RULES OF PROF’L CONDUCT R. 7.5 (Proposed Amendments 2000).

(318.) See MODEL RULES OF PROF’L CONDUCT R. 7.2 (Proposed Amendments 2000).

(319.) See Pritchard Law Webs, supra note 127, at 4 (stating that a lawyer who practices from a home office must disclose his or her home address despite a preference for keeping such information private)

(320.) See MODEL RULES OF PROF’L CONDUCT R. 7.2 (Proposed Amendments 2000) governing advertising (“Any communication made pursuant to this rule shall include the name and office address of at least one lawyer or law firm responsible for its content.”). The purpose for including the identity and location of at least one lawyer or law firm responsible for the content of the Internet site is to provide prospective clients with important information about the lawyer or firm and, if necessary, to assist disciplinary authorities in locating at least one person who is responsible for the advertisement. See also MODEL RULES OF PROF’L CONDUCT R. 7.2 (Proposed Amendments, Reporter’s Explanation of Changes, 2000)

(321.) See Martineau, supra note 319.

(322.) See MODEL RULES OF PROF’L CONDUCT R. 7.5 (Proposed Amendments 2000).

(323.) See Nuara & Falero, supra note 22, at 310.

(324.) Id.

(325.) See MODEL RULES OF PROF’L CONDUCT R. 7.5(a) (Proposed Amendments 2000).

(326.) See MODEL RULES OF PROF’L CONDUCT R. 7.5(b) (Proposed Amendments 2000)

(327.) See MODEL RULES OF PROF’L CONDUCT R. 7.2, cmts. 1 & 2 (Proposed Amendments 2000).

(328.) See MODEL RULES OF PROF’L CONDUCT R. 7.3(a) (Proposed Amendments 2000).

(329.) See Nuara & Falero, supra note 22, at 290-91. Lawyer and law firm Internet sites should include a date of the most recent update of information on the site. See Carol Ebbinghouse, Medical and Legal Misinformation on the Internet, INTERNET/WEB/ONLINE SERVICE INFORMATION (October 1, 2000).

(330.) See ABA PROPOSED MODEL RULES OF PROF’L CONDUCT R.7.3(c).

(331.) Pursuant to the Electronic Communications Privacy Act (“ECPA”) of 1986, Pub. L. No. 99-508, 100 Stat. 1848 (1986), codified as amended at 18 U.S.C.A. [section] 2510 et seq. (2001), any unauthorized interception of electronic communications is a crime. See Brett R. Harris, Counseling Clients Over the Internet, 80 PLI/NY 313, 319 (August 2000) (PLI New York Practice Series Course, Handbook Series No. F0-0082, 2000). The ECPA included electronic communication within the coverage of the Federal Wiretap Statute of 1968. Id. The Committee on Professional Ethics for the New York State Bar Association opined that “the criminalization of unauthorized interception of e-mail certainly enhances the reasonableness of an expectation that e-mails will be as private as other forms of telecommunication.” N.Y. STATE BAR ASS’N COMM. ON PROF’L ETHICS, OP. NO. 709 (1998) (55-97).

(332.) See Nuara & Falero, supra note 22, at 304-08.

(333.) Id. at 307-08.

(334.) See Joan C. Rogers, Cyberlawyers Must Chart Uncertain Course in World of Online Advice, ABA/BNA LAWYERS’ MANUAL ON PROFESSIONAL CONDUCT, at http://www.bna.com/prodhome/bus/mopc_and.html, (last visited Mar. 15, 2000) (on file with the Rutgers Computer and Tech. L.J.) (discussing positions taken by several commentators suggesting that disclaimers may be ineffective to avoid the creation of attorney-client relationship).

(335.) Responsibility for the content contained in hyper links is among the disclaimers lawyer and law firms should include on their sites. As with any warning, multiple disclaimers and disclosures on a site may render such disclaimers and disclosures ineffective.

(336.) See MODEL RULES OF PROF’L CONDUCT R. 7.2, cmt. 2 (Proposed Amendments 2000).

(337.) See MODEL RULES OF PROF’L CONDUCT R. 7.4 & 7.5 (Proposed Amendments 2000). See also Nuara & Falero, supra note 22, at 310.

(338.) Id. See also Gillers & Simon, supra note 80, at 362.

(339.) See Mercer, supra note 33, at 722 (“Testimonials are per se misleading in Florida, Louisiana, Mississippi, Nevada, New Mexico, and Massachusetts”).

(340.) See id.

(341.) See Nuara, supra note 5, at 71-72, citing ABA/BNA Lawyers’ Analysis at 40-43, and William Hornsby, Ethics Rules for Ads May Cover Websites, supra note 15, Nat’l L.J., Jan. 29, 1996 at C1.

Vanessa S. Browne-Barbour, Assistant Professor of Law, Duquesne University School of Law, J.D. 1993, Carnegie-Mellon University, B.A. 1978. I am grateful for the generous support of Dean Nicholas P. Cafardi and the sage advice of many of my faculty colleagues. I also am grateful to Ken Gormley for the benefit of his comments and Rebecca Verdone for her diligent research assistance.