ugg 2011

A. The Basics: Advertising & Solicitation

         Probably more attention has been given to the regulation of attorney advertising in recent years than is deserved, at least based on the volume of advertising actually done. While more Colorado attorneys advertise today than prior to the Supreme Court's unshackling of attorney commercial speech in Bates v. State Bar of Arizona, 433 U.S. 350 (1977), mass media advertising is still relatively shunned, or is done in a low key manner, e.g., sponsorship announcements for Public Television or National Public Radio.

         One demonstrable effect of the Supreme Court's letting attorney advertising out of the closet, was a marked change in attorney ethics codes. At its pre-Bates height, the former Colorado Code of Professional Responsibility resembled a laundry list of "thou shalt nots." In sharp contrast, the Colorado Rules of Professional Conduct, based upon the ABA's Model Rules, is shorter, simpler, and clearer. R.P.C. 7.1 establishes a general rule of "don't lie, don't mislead, don't create unjustified expectations regarding a potential result." Rule 7.2 sets forth the rules for advertising, Rule 7.3 the prohibition against in-person solicitation. Rules 7.4 & 7.5, not discussed here in detail, deal with the particulars of identifying fields of practice, and firm names and letterheads, announcements, business cards and the like.

The general rule set forth in R.P.C. 7.1 requires little embellishment. The only potentially subtlety, clarified by the Comment, is that "testimonial," type advertising, or other factually correct recitations of the attorney's prior successes, are likely to create impermissible unjustified expectations. Attorneys using such advertisements would be well advised to include precautionary disclaimers regarding the uniqueness of each case, and the unreliability of past performance to predict future results in a particular case.

Rule 7.2(a) merely recognizes a constitutional truth. Subsections (b) & (d) are record keeping and content requirements. Subsection (c) is the current embodiment of the "anti-feeder operation" prohibition. It prohibits participation in any for-profit advertising service where something greater than the value of the "reasonable cost of the advertisements or communications" is charged.

While largely self-explanatory, R.P.C. 7.3 warrants a few observations. First, the general rule prohibiting in-person solicitation is applicable only where "a significant motive for the lawyer[] . . . is . . . pecuniary gain." Thus, so long as subsection (b) is not violated, an attorney may, for example, solicit clients in-person for a pro bono cause.

         Second, subsection (c) is primarily directed to targeted direct mail advertising, where the lawyer "knows" the prospective client is in need of legal services "in a particular matter." Untargeted commercial communications to less than the entire world is simply advertising, and is governed by Rules 7.1 & 7.2.

         Finally, a Colorado lawyer using direct mail solicitation should also be cognizant of Colo. Rev. Stat. 12-5-115.5. This statute, enacted in 1996 in response to the Supreme Court's decision in Florida Bar v. Went For It, Inc., ____ U.S. ____, 115 S. Ct. 2371 (1995), establishes a 30-day "cooling off" period during which solicitation of legal employment may occur. To the Colorado General Assembly's credit, the focus of this law is truly protection of vulnerable consumers and, unlike the Florida Bar's restriction pertaining only to attorneys, it does not appear to have the consequence of merely creating an "insurance adjuster 30-day head start" rule:

B. Applying the Basics to the New Frontier

1. Advertising on the Internet

         The seductive force of the Cyberbahn has caused many staid firms who have never before considered advertising in a mass medium to face attorney advertising issues for the first time. Having a "presence on the web" is now de rigueur. Conversely, not having a presence on the Internet is a professional embarrassment, an instant loss of credibility, particularly as to business clients having an e-mail culture.⁽¹⁾

         For lawyers new to advertising regulation, the Rules of Professional Conduct offer no direct guidance. The words "Internet" and "website" are nowhere to be found. Fortunately, there is no shortage of analysis by Web ethicists.⁽²⁾ Also, once familiar with the medium, the basic concepts of "advertising" and "solicitation" are not difficult to apply.

         There is little doubt that the Internet is a "public media," in which attorneys are permitted to advertise. R.P.C. 7.2(a). "The Basics," discussed above, apply with equal force to the Internet. The real challenge in applying Rules 7.1 to 7.5 to "Netvertising" is that the lines between solicitation and advertising occasionally blur.

         Most persons think of the Internet as the "World Wide Web," the graphical, hypertext component of the Internet accessed by "browsers." A firm website, so far one of the most common use of the Internet by attorneys, is analogous to a printed firm brochure. Whether or not the firm website constitutes "advertising," depends upon its content. Beyond the World Wide Web, the Internet includes electronic mail, news groups, list servers, real-time interactive "chat," telenet, push servers, and a variety of other applications, each of which has the potential to be used for advertising or solicitation. While e-mail is generally used in the same manner as traditional "snail mail," other Internet applications don't comfortably fit a single traditional print template. For example, there is some debate about whether seeking new clients over real-time chat should be considered advertising or solicitation, i.e., is it "in-person" or "live telephone contact"? See R.P.C. 7.3(a).

         As yet, Colorado has not established any Internet-specific regulations pertaining to practice of law. Iowa, Pennsylvania, South Carolina and Tennessee have issued ethics opinions applying existing ethics rules to Internet applications. Moreover, Texas and Florida have published website advertising guidelines, requiring the submission of attorney websites for approval. See, e.g., Iowa Ethics Opinion 96-1 (1996); Pennsylvania Ethics Opinion 96-17 (1996); South Carolina Ethics Opinion 94-27 (1995); Tennessee Ethics Opinion 95-A-570 (1995); Texas Disciplinary Rules of Professional Conduct, Part 7.

         Applying the Colorado Rules to Colorado attorney websites, there is an argument that a website is neither solicitation nor advertising. Currently, a lawyer's website must be sought out by potential clients. This is more analogous to a firm brochure being mailed at the request of a prospective client, than a broadcast advertisement. Still, most attorneys do, at least impliedly, advertise the availability of their services on their website. Based upon treatment by other jurisdiction, an attorney website will probably be fairly considered advertising, though probably not solicitation. Accordingly, the requirements of Rules 7.1 & 7.2 must be adhered to, including rules regarding truthfulness, testimonial advertising, record keeping, content requirements.⁽³⁾ The requirement of identifying jurisdictional limitations on practice imposed by R.P.C. 7.5(c) is be no more burdensome in electronic than in print media, and should not be neglected on the lawyer's website. Rule 7.5(b)'s restrictions on tradenames, arguably, could create some interesting disciplinary actions for creative domain name selection, e.g., winning-lawyers.com or scorched-earth.com, however, domain names cannot be equated to tradenames across the board, and the greater issues raised by such domain names would arise under Rules 7.1(a) and 7.5(a).

         With regard to solicitation through the Internet, the verb "to Spam" -- 'Net parlance for "to send commercial messages to vast numbers of persons on a generally indiscriminate basis" -- is virtually linked in infamy with the activities of the Phoenix law firm of Canter & Siegal which, in April 1993, posted an advertisement for immigration services to thousands of Internet news groups without regard to the subject of the news group.⁽⁴⁾ While the indiscriminate nature of the posting probably would place this incident in the category of advertising, rather than solicitation, a more discriminating and targeted "Spamming" would have to comply with R.P.C. 7.3(c)'s requirement of identifying the message as "Advertising Material."

         Another interesting and as yet unanswered question is whether participation in real-time chat forums, list servers or the like constitutes solicitation? While it is difficult to discern motive, and although some attorneys at least privately acknowledge participating in such forums as a means of generating business, the author believes that, absent clear evidence of a primarily pecuniary motive, attorneys will not be compelled to include the header "Advertising Material," each time they partake in an Internet discussion that might generate some business, any more than an attorney should feel compelled to flee a cocktail party should someone walk up ask for "curbside" advice. As shown in the "Green Card Incident," the enforcement mechanisms of the Internet community in regulating unwanted or obnoxious solicitation are not ineffective.

         Another practical consideration is the distinction between a permitted "law list," or other directory, and an impermissible for-profit referral service. A state or local bar hypertext link to a lawyer's website, or a presentation of the type of traditional objective information normally found in lawyer directories should present no ethical problems, while an electronic feeder operation should be recognized as improper if it purports to recommend counsel.

         One troubling unaddressed ethics issue on the Cyber frontier is "whose law applies?" ABA Model Rule 8.5(b)(2)(ii) provides a choice of law rule for attorneys licensed in more than one state, whereby the rules of the jurisdiction "in which the lawyer principally practices" apply unless the "particular conduct clearly has its predominant effect in another jurisdiction in which the lawyer is licensed." Colorado has not adopted this rule, however Colorado Rule 241.17(a) provides, in part:

Conceivably, under this rule, a state in which the attorney is not licensed could purport to assert jurisdiction over a lawyer licensed in only in Colorado, with a website physically located in Colorado (but which, of course, can be accessed "world wide"), and sanction the attorney for not complying with its individual advertising requirements. Although 241.17 does permit the attorney to collaterally attack the foreign jurisdiction's findings, the problems created by the world wide nature of the Web have caused most cyberethicists to advocate against a state attempting to regulate attorney websites "long distance," and none has yet purported to do so, notwithstanding that various state long-arm statutes have already been quite properly applied to transactions involving commerce on the Web.

         The conservative approach is for those lawyers licensed in more than one state to follow the advertising rules of the most restrictive state in which they are licensed. Attorneys licensed only in Colorado should adhere to the Colorado Rules regarding websites, but exercise caution in other Internet applications which could legitimately subject an attorney to another jurisdiction's regulations regarding the unauthorized practice of law⁽⁵⁾ or solicitation. The regulation of attorney websites by jurisdictions in which the attorney is not licensed, however, remains an open question. See generally, ABA/BNA Lawyers' Manual on Professional Conduct, 81:565 - 570; Pennsylvania Ethics Opinion 96-17 (1996).

2. MultiState Advertising and Solicitation

         Even more mundane types of advertising raise multistate ethical issues regarding the regulation of solicitation and advertising. The author recently reviewed the laws of thirty states to assist in the preparation of a direct mail solicitation on behalf of an attorney-client. Notwithstanding the simple beauty of the ABA Model Rules, the author's exercise was reminiscent of his earliest days of legal practice spent "Blue Skying" securities offering circulars, with the marked difference that the laws of the various states regarding attorney advertising and solicitation are considerably less uniform and more convoluted. It is virtually impossible to prepare a single direct mail solicitation to more than approximately three states because, not only are the various states' regulations different, they are more often than not inconsistent in even the most mundane details, e.g., the color, font size, location(s) and precise language that must disclose to the recipient that she is about to be subjected to "legal advertising," "ADVERTISING MATERIAL," or LEGAL ADVERTISING.

         Any attempt to chronicle the various state differences would be a futile as shooting a pea at comet Hale-Bopp; it couldn't possibly reach the target and, even if it could, the target would be long gone by the time the pea arrived. Suffice it to say that it appears that the limited commercial speech Bates giveth, state bureaucracy hath taken away. Because of this situation, many have called for a national system of regulation of attorneys, or at least of attorney advertising or solicitation. The Constitutional tradition of state regulation of attorneys, and state protection of its consumers, however, makes acceptance of federal preemptive regulation exceptionally difficult. Moreover, strong policy arguments support differences in state regulation, and the Supreme Court's decision in Florida Bar v. Went For It, Inc., ____ U.S. ____, 115 S. Ct. 2371 (1995) suggests that differences in state laws regulating attorney advertising and solicitation will be respected. Accordingly, conservative practitioners engaging in direct mail solicitation targeted to citizens outside the state(s) in which they are licensed, should budget the time and expense necessary to tailor each piece of direct mail advertising to comply with the laws of each state to whose citizens it is directed. This will involve careful scrutiny of each state's rules and statutes, and may require submission to a state agency, either before or concurrent with the solicitation, and payment of a fee.

3. Commercial Attorney Referral Services

         The most interesting questions regarding commercial attorney referral services under the Colorado Rules is (1) their persistence and (2) how it is that so many Colorado attorneys do not know that such services are prohibited.

         A lawyer shall not give anything of value to a person for recommending the lawyer's services, except that a lawyer may pay the reasonable cost of advertisements or communications permitted by this rule and may pay the usual charges of a not-for-profit lawyer referral service or other legal service organization. (Emphasis added.)

R.P.C. 7.2(c). The Comments to this rule make it clear that a "legal service organization" is not a for-profit business which recommends certain lawyers. Thus, while an attorney may pay the usual charges of a nonprofit lawyer referral services, such a Metro Lawyer Referral, the restrictive, selective, for-profit referral services are taboo. Note that the Colorado Rules do not restrict the for-profit business soliciting an attorney to join, but rather the attorney giving anything of value to such an organization for referrals. See generally Colo. Bar Ass'n Ethics Committee Opinion 83, Lawyer Advertising, Solicitation and Publicity (November 18, 1989; addendum issued July 24, 1993) (discussing variations on the for-profit plans under the former Code).

         1. Overstatement? Media hype? Technology de jour? Hardly. The parallel to the deployment of inexpensive fax machines is, as Yogi said, " deja vu all over again." In 1985, fax machines were temperamental, slow, expensive and unreliable. No one had a "fax number." Today, a business which doesn't have a dedicated fax line is not viewed as a serious enterprise. Just a few years ago, few outside of academia or the technology subculture had a clue what the "Internet" was. Today, your e-mail address comes either before or after your dedicated fax number on your business cards and letterhead. The absence of e-mail capability is rapidly overtaking the absence of voice mail as something to be apologized for.

         2. Among of the best of the early analysis is Rogers, How Do Advertising Rules Apply to Lawyers on the 'Net?, 12 ABA/BNA Lawyers' Manual on Professional Conduct, Current Reports, p. 37 (Feb. 21, 1996); Read, Pushing the Advertising Envelope: Building Bill Boards in the Sky Along the Information Superhighway, 23 Western St. U.L. Rev. 73 (1995); and the ongoing analysis included in the ABA/BNA Lawyers' Manual on Professional Conduct, 81:551.

         3. Even if Rule 7.1's requirements regarding truthfulness did not apply to attorney websites, Rule 8.4(c)'s does. Rule 7.2(b)'s record keeping requirements should be met by a regular program of archival backups, which a competent attorney should have in place regarding all computer files anyway.

         4. The response of the Internet community to this flagrant breach of "Netiquette" was fast and furious. Thousands of incendiary responses -- "flames" in 'Netspeak -- brought the firm's Internet service provider's server crashing down, which caused the firm's ISP to revoke its access rights.

         5. A discussion of the unauthorized practice of law is beyond the scope of this article. It is important for Colorado lawyers to know, however, that violation of the law of state in which the attorney is to alleged to have practiced without authority is punishable under the Colorado Rules:

R.P.C. 5.5 & Comment.