Attorney Advertising in Cyberspace
by Jim Calloway
Coordinator, OBA Management Assistance Program and Dan Murdock OBA General Counsel
(Originally published Oklahoma Bar Journal July 18, 1998 - Vol. 69; No. 29)

Most of us had not even heard about cyberspace 1 or the Internet five or six years ago. Now discussion about the Internet seems to permeate society. A business cannot run a national advertising campaign without a web site. Every TV sweeps rating period seems to bring new disclosures about what can be seen or done online. Newspaper and magazine articles are peppered with references to Internet web sites. Law enforcement and parental groups face new challenges daily as a result of this new and amazing way to communicate.

The Oklahoma Supreme Court has an Internet web site.2  The American Bar Association has a web site.3  Hopefully, before the end of the year the Oklahoma Bar Association will have a true web site, in addition to the legal research web site that it authorizes.4  We have already reached the point where a lawyer who does not have Internet access operates at a substantial disadvantage to his colleagues who do, and, most of the time, does not realize that the disadvantage even exists.

The Internet is "a unique and wholly new medium of worldwide human communication." 5   Probably close to 100 million people now have Internet access with tens of thousands being added daily. There has never been a communications medium where it is as simple and inexpensive to communicate with Singapore as it is next door. There has also never been a communications medium that so freely mixes text, audio clips, photographs, motion pictures, computer programs and personal interaction.

The Rules Of Professional Conduct (hereinafter referred to as the Rules) were written and adopted before the wide spread use of the Internet. There are no references to Internet communication methods in the Oklahoma version of the Rules. There are no reported disciplinary cases or ethics opinions regarding improper use of the Internet. Guidelines about these issues may therefore only be drawn from analogies to more traditional communication methods or from opinions from other states.

The principal uses of the Internet today by consumers involve accessing the World Wide Web through a web browser, electronic mail (e-mail), Newsgroups and List Servs, and chat rooms. There are potential problem areas for lawyers using these different types of Internet communication tools.

Advertising on the World Wide Web--

A frequent call to the Oklahoma Bar Association is "Does the Oklahoma Bar Association consider a web site to be advertising?"  We assume that what they are really asking is "Does a web site have to comply with the Rules Of Professional Conduct 6, particularly Rule 7.2.

Some lawyers may believe that a web page is not advertising and therefore not subject to regulation by the Rules (particularly Rule 7.2 titled "Advertising"). However, the real question is whether a web page is commercial speech. There appears to be little doubt that it is. It is commercial speech of lawyers that Supreme Court ethical rules regulate 7. Communications within a web page are covered by the Rules just as many other activities not specifically referenced in the Rules.

States that have either advisory opinions or rules specifying the previously enacted Code of Professional Responsibility advertising rules apply to Internet communications include Florida, Illinois, Iowa, Maryland, Massachusetts, Michigan, North Carolina, Pennsylvania, Tennessee, Texas and Utah 8.

False or Misleading Communication -- Rule 7.1 prohibits "false or misleading communication about the lawyer or the lawyer's services." This can include material misrepresentations, omissions of material facts, creating "an unjustified expectation" about possible results, indicating that the lawyer can achieve results that violate the law or comparing the lawyer's services with other lawyer's services "unless the comparison can be factually substantiated 9."

Clearly all lawyers understand that false claims or misrepresentations in the course of their profession can subject them to discipline. However, there are a wide range of completely truthful and factual statements that have been determined to be misleading. Examples include rulings that it is misleading to advertise that a lawyer is a member of the U.S. Supreme Court Bar because the general public is unfamiliar with requirements of admission 10; advertisements that stated "25 years' experience" and "30 years' experience" violate Rule because inconsistent; further, claims give no explanation concerning to whom experience belongs or field in which experience accumulated 11; a statement "Immediate arrangements for medical cares. No health insurance necessary" misleading because lawyer cannot evaluate bounds of medical care required 12; misleading for lawyer to state in letter to prospective client that sixty dollars cash needed to apply for debt relief and not mention that ultimate legal fees would cost client ten times that amount 13; advertisements for routine legal services at fixed fee that did not disclose hidden costs misleading 14; commercial suggesting viewers call lawyer referral service, rather than "take a chance" on telephone book, misleads viewers into believing participating lawyers' services superior 15; dummy newspaper article headlined "Biker Awarded $250,000 for Accident" misleading because article created only for advertisement and creates unjustified expectations by implying similar awards can be received in other cases 16 and that in the absence of a state rating system, a lawyer should not represent superiority over other lawyers 17. In fact, some legal commentators have observed that "Rule 7.1(b) virtually precludes any use of a lawyer's track record' as a selling point 18."

This is not to say that Oklahoma will agree or disagree with all of the above opinions. The point is that, in this context at least, truth is not an absolute defense.

With traditional forms of advertising there were economic limits to the size of the print ad or the length of the broadcast ad. With a web page it is virtually as easy and inexpensive to put up a 30 page web site as a two page web site. The concern is that, with no real limits on the amount of content, lawyers have a greater opportunity to stray into what someone else may judge as misleading.

The lawyer who wishes to invest in a web page presence on the Internet should also invest in appropriate research and contemplation to assure that the World Wide Web page does not create more problems than any perceived benefits.

The closest analogy to the web page is to the yellow page advertisement. Generally these ads will be seen by those who are actively looking for legal information or to retain an attorney. Web pages are found by individuals looking for them rather than sent by the attorney.

Oklahoma Lawyer Advertising Requirements as Applied to Web Pages

Rule 7.2 applies to all lawyer advertising through public media. One would have to assume that the Internet would be considered a public media.

Some of the requirements are quite simple in regard to newspaper or yellow pages advertising, but may be quite onerous where applied to an Internet web page.

Rule 7.2(b) requires a copy of an advertisement or written communication be kept for three years after its dissemination. Since an Internet page can be accessed daily one would assume that the three year period would not start to run until the page had been removed from the Internet and was no longer available for access.

Web pages provide a special problem. For a web page to be effective, it is generally thought that it should be regularly updated. If a lawyer updates his web page information daily or weekly, must the lawyer retain a copy of every single version of the web page? The safe answer appears to be "yes" under Rule 7.2(b). Probably the simplest way to accomplish this would be print out part of the web page to be updated and merely make a hand-written notation of the day that version was last posted on the Internet.

Rule 7.2(f) requires that every written or recorded communication from a lawyer must contain the words "This is an advertisement." Does this apply to the web page? The context of the remaining text of this rule seems to make it clear that it applies to writings and recordings mailed or delivered to a prospective client and would not apply to the more passive web page.

Fee information is also problematic. Is a web page to be treated like an "other electronic media advertisement" under Rule 7.2(i) which binds an attorney to charge no more than the stated fee for a period ending thirty days after the last broadcast or is it to be treated like a "print media publication" which has no fixed date for the publication of a succeeding issue under Rule 7.2(j) where the lawyer is bound for a reasonable time "but in no event less than one year" after ceasing publication?

Hopefully, this question will remain forever unanswered (at least by a disciplinary case opinion.) Rule 7.2(h) allows lawyers to state a time period for the availability of such fees in the advertisement itself. It would seem to be a simple matter on a web page to include a disclaimer to the effect that these fees were only valid for a certain calendar year or expire on a certain date. Representations that the advertised fees could be changed "at any time" or "without notice" would not arguably comply with exception permitted under Rule 7.2(h).

Other problem issues for attorney's Web pages

Most attorneys would not believe that anyone could think that an attorney client relationship could result from a stranger merely reading a web page posting or email. Surely it is not possible to commit malpractice by a simple web page posting.

A Parable of Attorney Hy Tech: In order to inform the public and, perhaps attract some clients, Attorney Hy Tech posts on his web page some helpful information about commonly asked questions about the law. Included in these is a discussion of statutes of limitations and how important they are. A brief statement mentions that the statute of limitations for negligence "such as automobile accidents" is two years. In order to inform the public and, perhaps attract some clients, Attorney Hy Tech posts on his web page some helpful information about commonly asked questions about the law. Included in these is a discussion of statutes of limitations and how important they are. A brief statement mentions that the statute of limitations for negligence "such as automobile accidents" is two years.

Several potential clients are drawn to the web page including:

(A) "Client" Larry, recuperating from his serious injuries in an automobile accident, comes upon the web page and decides to hire Attorney Hy Tech, but is very busy and doesn't make the initial appointment until 3:00 p.m. on the day the statute of limitations runs.

(B) "Client" Curley, also recuperating from his serious injuries in an automobile accident, reads the web page. He decides to hire Attorney Hy Tech but waits eighteen months to do so. Because of his confidence in the lawyer with the really slick web page he is unconcerned during that time that (a) it was a municipal vehicle that hit him, or (b) he receives a bankruptcy notice from someone whose name sounds familiar or (c) that he fails to take any photographs of his vehicle or his injuries.

(C) "Client" Moe read the web page but does not hire Attorney Hy Tech because he lives in another state, the state of Bliss . When he does finally get into an attorney's office, he is quite perturbed to learn that the one year statute of limitations for negligence in his state has already passed. He decides to contact the bar association and another attorney in Oklahoma.

(D) "Client" Shemp was not injured in the accident which destroyed his vehicle and two others three years ago. It was possibly his fault in fact, but many things are unclear. He reads the web page after several hours of frantic Internet surfing when he was sued and is quite relieved. So relieved was he in fact that he was not at all nervous about giving a recorded statement to plaintiff's counsel where he states that not only was the accident his fault, but he was drunk at the time. He proudly states to plaintiff's counsel that he knows that they cannot do anything to him because he learned it on the Internet. He fails to file an answer. Plaintiff's counsel ponders how unusual this case is; first, three severely injured teenagers do not even consult with counsel until the week they all three turn eighteen, and, then the defendant acts like this.

What will be the result if all of the above sue Attorney Hy Tech for malpractice? Are you sure? How much are you willing to bet on it? What about a bar complaint? Even more important is whether the issue of the establishment of an attorney-client relationship is a question of fact that must be decided by the jury. (At least Hy Tech is now glad he kept all of those copies of the many versions of his many web pages as required by Rule 7.2(b)) But what about the complaint from the Bliss State Bar Association about unauthorized practice of law in the State of Bliss? Assuming that Attorney Hy Tech is successful, how much of his otherwise billable time will be invested in dealing with these matters, and how will it affect his standing in the community and his relationship with his malpractice carrier?

But none of those questions are what will really keep Attorney Hy Tech awake at night. Two other matters will bother him more. After all, this was a simple and correct statement of the law. But there were some other things he put on that web page that he really meant to research more thoroughly but just never found the time. The other thing is that letter he just received from his Internet Service Provider, congratulating him on just having the one-millionth visit to his web site.

Suggested Web Page Disclaimers:

Disclaimers cannot solve every problem, but they cannot hurt. If you do decide to have a web page, consider whether the following should be noted.

If the information contained is general, and the law may apply differently in specific situations.

If no one can establish an attorney client relationship with you except by retaining you with a retainer fee or signing a written contract in the case of a contingency fee.

If you are only licensed in one state and don't know about every other state's (or country's) laws.

If you do not give legal advice to people outside the boundaries of your state.

If you believe people with legal problems should seek counsel about their specific problems with an attorney.

Other sample disclaimers are available on the Internet 19. Viewing other attorneys web pages is a good place to learn about how they work and review the disclaimers of other attorneys.

It is worth noting that a few states, notably Texas, Florida, New Mexico and Kentucky, have many specific rules for pre-approval and/or advance or concurrent submission of advertising materials. In Texas, a fee is charged to submit a home pages of Texas law firms for approval. Failure to so do is itself a rule violation 20. Florida has similar requirements 21...

Do not take this issue oriented analysis as a discouragement to using the Internet. As previously stated, we have already reached the point where a lawyer who does not have Internet access operates at a substantial disadvantage to his colleagues who do. You will be forced into cyberspace whether you want to be or not, by the great resources there, by clients who operate there, and by changes in society itself. Many lawyers now have web pages and it is clear that many more will do so in the future 22.

Besides, you at least have the option of deciding whether or not you want to have a web site. We will all have to rely on using e-mail and indiscriminate use of e-mail by attorneys may be fraught with even more perils than posting a web page.

Protecting a Client's Confidences: From the Cleaning Crew to your E-mail

We assume that all readers now have an understanding of e-mail 23. The term e-mail is a shortened version of "electronic mail." E-mail simply refers to messages that are sent between computer users. These messages are typically read by the recipient at a convenient time and then deleted. E-mail may refer to messages between computers users in the same office or company on the local area network, but more frequently refers to messages sent over the Internet 24. Already many attorneys regularly use e-mail for communication. E-mail is easy, effective, convenient and inexpensive. There can be no doubt that e-mail use will become increasingly common in the immediate future. However, Internet e-mail is sent through a complex system of computers over which the attorney has absolutely no control.

Rule 1.6(a) states : "(a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b) and (c)." The initial question that must be considered is whether Internet e-mail transmissions present an unacceptably high risk that a client's confidential information will be somehow disclosed.

But before too much time is spent worrying about a high tech attack on your office computers or an interception of Internet e-mail, we should consider what basic protections are in place to protect client confidentiality. After all, if someone really wanted to crack a lawyer's computer system, the simplest way would be to plant someone as a temp in the night janitorial staff. Then there would be access to all computers and files.

A Few Steps Law Firms Could Take to Better Protect Client Confidentiality

Several common sense steps to protecting client confidentiality would include:

a) Password protect all computers so that an unauthorized person cannot gain access to the information. (You are far more likely to have your computers stolen in a burglary that to ever have a high tech interception of an e-mail. And, if you are going to write down the password and tape it to the wooden signing board at the desk, or use your first name or something similar for a password, don't even bother.) Password protect all computers so that an unauthorized person cannot gain access to the information. (You are far more likely to have your computers stolen in a burglary that to ever have a high tech interception of an e-mail. And, if you are going to write down the password and tape it to the wooden signing board at the desk, or use your first name or something similar for a password, don't even bother.)

b) Keep backup tapes or disks under lock and key, including the off-premises set that is stored at a partner's house. (You do keep a set of backups off premises in case of a fire or other disaster, don't you?) Keep backup tapes or disks under lock and key, including the off-premises set that is stored at a partner's house. (You do keep a set of backups off premises in case of a fire or other disaster, don't you?)

c) Have a written confidentiality policy and make sure all employees, independent contractors, and temporaries read it and sign it. Have a written confidentiality policy and make sure all employees, independent contractors, and temporaries read it and sign it.

d) If you have outside cleaning services or share office space with others (particularly non-lawyers) consider whether particular precautions such as locking file cabinets, doing background checks, or locking individual office doors are warranted. If you have outside cleaning services or share office space with others (particularly non-lawyers) consider whether particular precautions such as locking file cabinets, doing background checks, or locking individual office doors are warranted.

e) When hiring new employees or temporaries, always check the references and consider doing other background checks as well. When hiring new employees or temporaries, always check the references and consider doing other background checks as well.

f) Client information should be shared with staff on a need-to-know basis. There is no reason for the paralegals in the Securities Department to know the juicy details of Client Smith's divorce case. Client information should be shared with staff on a need-to-know basis. There is no reason for the paralegals in the Securities Department to know the juicy details of Client Smith's divorce case.

Having covered some "low tech" considerations, we proceed to take a brief look at how Internet e-mail works.

The Internet was originally initiated as a ARPANET. It was originally designed to allow the military, defense contractors and universities conducting defense research to communicate by redundant channels even if some systems were destroyed or damaged in a time of war. Consequently a transmission from one location to another over the Internet may take a variety of routes through many different computer systems until it reaches its intended recipient. Therefore the path of a particular piece of e-mail is unpredictable. In fact, Internet transmissions are broken down into small packets of data and the route of a particular packet is determined by the system usage and availability at any particular millisecond. These data packets must pass through and be temporarily stored in other computers called "routers", operated by firms known as "Internet service providers" which assist in distributing e-mail over the Internet. The packets are then reassembled at the host computer for the intended recipient where it remains until it is read and deleted.

The successful interception and seizure of a particular e-mail message as it travels across the Internet would be a far more daunting task than finding a needle in a hundred haystacks. It is not an impossible event, however. For more information on possible methods of Internet espionage and problems concerning e-mail and confidentiality generally, see the online article Client Confidentiality: _A Lawyer's Duties with Regard to Internet E-Mail by Robert L. Jones (August 16, 1995) 25. In particular review his Chapter 2 entitled "Hacker, Cracker, Phracker - Sniffer, Spoofer, Spy" for a look at some high tech espionage techniques. The most likely methods of stealing e-mail are not all "high tech." They include reliance on untrustworthy staff either associated with the lawyer's office or the network administrator where the e-mail is sent or stored.

To guard against unauthorized access to e-mail, a number of encryption procedures have been developed. Simply put, the message is scrambled so that one cannot read it without an encryption key or password. Even this method may not be totally foolproof. Even back in World War II, there were many code-breakers employed by the governments. But with modern technology, there have been concerns expressed by government agencies that some present seemingly unbreakable encryption methods may prove a threat to nationally security 26. Encrypted e-mail would certainly have to be considered as safer than the U.S. Mail, if only for the reason that a misdelivered e-mail could not be read by the one who received it.

Encryption is not easily accepted, however. It requires more technical expertise than just using e-mail and communications with the client concerning encryption methods and public keys and passwords. Requiring encryption may cause many to avoid the benefits of e-mail entirely. Some state bars believe encryption should be required. Some initially took that position, but later relented. It appears that a majority of those states having reached a decision or released an informal opinion would allow unencrypted e-mail, even as they note various cautions and concerns.

A very common sense approach in regard to whether you should use unencrypted e-mail with your clients was stated in Pennsylvania Opinion 97-130 (September 26, 1997). This opinion was drafted by a member of the Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility and is not an official opinion of the Disciplinary Board of the Supreme Court of Pennsylvania. This opinion referenced the differing approaches among other states that had considered the issue 27.

After noting that for most client communications, encryption should not be required, the author of this opinion outlined the reasoning behind the decision:

"First, the risk of intentional or inadvertent interception does not appear to be materially different for e-mail when compared to other forms of communication commonly used by lawyers, especially telephone and fax, and encryption by means of scrambling or encoding of these communications is not required, nor expected. Second, for the great majority of communications there is little potential for harm to the client if the communication is intentionally or inadvertently intercepted. Third, encryption is not commonly available or easy-to-use. This, however, is subject to change. There has been discussion that certain e-mail programs and Internet browsers with e-mail features will, in the near future, incorporate easy to use encryption.[6] Fourth, federal and state law makes it a crime to intercept electronic communications or data stored on a computer by anyone who is not authorized to do so. See Electronic Communications Privacy Act of 1986, 18 U.S.C. '2510, et seq; Wiretapping and Electronic Surveillance Control Act, 18 Pa. C.S. '5701, et seq.; Stored Wire and Electronic Communications and Transactional Records Access, 18 Pa. C.S. '5741, et seq.

Like many issues under the Rules of Professional Conduct, client consultation and consent plays a major role in the decision whether to use e-mail and, if so, under what circumstances. A lawyer has complied with his or her ethical obligations if the risks and benefits associated with the use of e-mail are explained to the client and the client consents. Lawyer and client together can agree to use e-mail for all, some or none of their communications. They can also agree whether or not to use encryption.

In addition, a brief statement can be placed on e-mail communications to alert the reader that the communication is a privileged and confidential, attorney-client communication similar to the notice that routinely appears on fax transmissions. Finally, caution must be exercised to avoid inadvertently sending the e-mail communication to the wrong person or party. Once sent, it is nearly impossible to retrieve an e-mail communication that is sent to the wrong person 28.

Following the above approach would seem to be a reasonable course of action for the Oklahoma lawyer who wishes to use e-mail with clients without encryption 29. The majority of states do not require encryption, but all include cautionary language in their opinions 30. The risk of disclosure must be considered, however. If the consequences of public disclosure of the message would be loss of a critical client trade secret, destruction of a client's business or publication of the material on the web page of the Dallas Morning News, then encryption should be used.

Let us digress briefly into another area of technology and client confidentiality, not associated with the Internet.

List Servs, Newsgroups, Chat Rooms and "spam"

A listserv is essentially an e-mail mailing list. Many people who have interests in particular topics can subscribe to these list servs. When a message is sent to the mailing list, it is then "served" or sent out to all of the people who have subscribed. The number of subscribers may vary from several dozen to several thousand. The effect is that numerous people all across the world can participate in discussions and information sharing about any number of topics. Most list servs are open to any who wishes to subscribe, but many are limited to members of certain groups. There is an Oklahoma Attorneys list serv  31, but it is not affiliated with the state bar and is accessible to anyone. The American Bar Association sponsors numerous list serves (called discussion groups) 32. Many of these are not limited to ABA members and therefore not limited to lawyers as well.

Newsgroups operate with slight differences from email mailing lists. The various messages are typically posted online rather than sent to an email address. The popular use of newsgroups pre-dates the World Wide Web. You will often hear these referred to as being a part of the Usenet. Newsgroups can generally be accessed with a web browser, but varying amounts of learning time must be invested to do so, depending on your web browser. Receiving them as e-mail is also possible. There are thousands of these special interest groups ranging from particular exotic pets to children and family to vacation and travel. Messages are often archived for later reading by others 33. The information that is available there, both accurate and inaccurate, is stunning 34.

Chat rooms are locations in cyberspace where individuals meet in areas to interact with other Internet users on a real time basis. Any message that is sent is seen by all other current users of the virtual room. Although CompuServe developed the concept with its "CB Simulator," America Online users popularized the concept broadly. Internet users can also access Internet Relay Chat. Some web pages now have chat areas as well. These virtual rooms can be general in nature or related to specific topics. rooms are locations in cyberspace where individuals meet in areas to interact with other Internet users on a real time basis. Any message that is sent is seen by all other current users of the virtual room. Although CompuServe developed the concept with its "CB Simulator," America Online users popularized the concept broadly. Internet users can also access Internet Relay Chat. Some web pages now have chat areas as well. These virtual rooms can be general in nature or related to specific topics.

Spamming refers to indiscriminate bulk e-mailing and posting. If you have an e-mail account you probably already know about spam. (Please always use the small letter As," a certain business is quite unhappy about this use of the term.) Suffice it to say, that users of cyberspace view spamming as a morally reprehensible act. It amounts to the conscious decision to waste the time of tens of thousands of people in the hopes of locating a few that may be interested in purchasing your services. refers to indiscriminate bulk e-mailing and posting. If you have an e-mail account you probably already know about spam. (Please always use the small letter As," a certain business is quite unhappy about this use of the term.) Suffice it to say, that users of cyberspace view spamming as a morally reprehensible act. It amounts to the conscious decision to waste the time of tens of thousands of people in the hopes of locating a few that may be interested in purchasing your services.

Most e-mail ethical problems will occur not as much between lawyers and clients as between lawyers and potential clients. The obvious analogy would be to compare e-mail with U.S. Mail when considering ethical imitations 35, but sometimes that analogy does not always hold true. Increasingly, e-mail encompasses more than just single person to single person communication.

Lawyers must be cautious about establishing on-line attorney-client relationships or relationships that are arguably attorney client relationships. If an attorney client relationship is formed, then certain duties are owed including: (1) confidentiality (2) competence [are you competent to advise persons in a state where you are not licensed?] and (3) Conflict free representation [Is it possible to screen for potential conflicts of interest in this particular Internet communication?] While it is possible to discuss general legal principles without forming an attorney-client relationship, lawyers should be very hesitant to give specific responses to specific fact situations. At the least a screening process to determine possible conflicts and get all of the appropriate facts should be undertaken just as if you having a face to face meeting 36.

The unauthorized practice of law in another jurisdiction could also be held to violate the Rules of this state 37.

Rule 7.3 prohibits in-person direct solicitation of a potential client except under limited specified circumstances 38. To discuss ethical implications of e-mail and other direct on-line contact with potential clients is a daunting task because it can occur in so many contexts. On the one hand, a lawyer may receive an e-mail from a potential client who received the e-mail address as a referral from a previously satisfied client or from the attorney's web page. Clearly responding to these types of e-mail via e-mail is no ethically different from returning a phone call from a potential client who has called in response to a yellow pages advertisement. On the other end of the ethical spectrum is the Canter case.

On June 5, 1997, the Tennessee Supreme Court imposed the first known discipline of a lawyer for unethical advertising on the Internet in considering the case of In re Canter, Tenn. Sup. Ct., Nos. 95-831-O-H (6/5/97). The attorney as suspended for one year for "spamming," indiscriminate bulk e-mailing. In 1994 he placed an advertisement that appeared on more than 5,000 of the Internet's news groups and 10,000 e-mail lists. The posting appeared on computer screens unsolicited and each reader was required to read at least a portion of the message. They found that he had failed to: (1) include the statement "This is an advertisement," (2) include a disclaimer about specialization; and (3) file the advertisement with the Board. Each of these steps is required by the Tennessee ethics rules. The Court found that such advertising impermissibly invaded the privacy of the recipients at the recipients' expense. The ads were said to have generated over 30,000 replies, almost all of it hate e-mail. (Canter was disbarred on matters unrelated to Internet advertising.)

Oklahoma's Rule 7.2 sets forth special requirements on direct mail advertising. Similarly to Tennessee, the words "This is an advertisement" are required to be on the outside of an envelope or container and at the top of any communication contained within the envelope. Obviously, e-mail has no envelope. Is indiscriminate bulk e-mailing a violation of Rule 7.3 in Oklahoma as an improper solicitation or is it permissible as long as compliance is done with the U.S. Mailing requirements of Rule 7.2?

We believe bulk e-mailing or spamming by lawyers is impermissible. Clearly it is a violation if the subject line of the e-mail does not contain the words "This is an advertisement." The rationale for requiring the advertisement notice on the outside of the envelope appears to have been to allow the recipient to discard the mail unopened. While providing the disclaimer in the subject line could have a similar effect, the message has already been received, certainly at the expense of the recipient's time. Like it or not, regular "junk mail" is an accepted fact of life. The sender pays for the ad in that situation. Bulk e-mailing is already a costly burden on business and personal life. Internet Service Providers try to determine ways to rid their services of it. It clogs e-mail boxes, sometimes preventing legitimate messages from being received. Bulk e-mailing by lawyers can certainly said to bring disrepute on the legal profession.

Chat room solicitation of clients is likewise impermissible. It is indistinguishable from contacting potential clients by phone or in person, with all of the problems thought to be associated with solicitation. One cannot advise another without determining first about potential conflicts of interests with existing clients. This would involve significant exchange of specific information either in the chat room or by private messages. Such advice may involve confidential information. Protecting this information from the chat room operator or computer system operator is difficult if not impossible 39.

But, practical considerations aside, one cannot do by computer what one is prohibited from doing in person. Direct solicitation of clients is prohibited under the Rules in Oklahoma. We see no difference between calling a potential client directly and having the modem call an Internet area to have the same conversation.

More problematic are the areas of list servs, newsgroups and other online discussion areas.. A mailing list which is designed for Oklahoma attorneys and dedicated to their participation features an automated enrolment feature which allows lawyers and non-lawyers alike to join. The various messages posted on this list are also archived elsewhere on the Internet, perhaps without the knowledge of the participants. Yet the content of the messages posted are attorneys discussing various issues among themselves. We do not see how the mere fact that a non-lawyer could access these postings could make them deemed to be a solicitation of a client per se.

However, it does not require much imagination to see how this a service such as this could be used in an attempt to improperly solicit clients if it had a sufficiently broad distribution.

Newsgroups present another difficult issue. If a dedicated family lawyer regularly posts in family law related newsgroups is that an improper client solicitation? It is only an improper solicitation if he or she actually gets clients as a result of his or her posting? What if the lawyer hosts a family law issues public discussion group on his or her web page? What about posting about one's immigration law practice in all of the dozens of newsgroups relating to international travel? Clearly some types of postings to a newsgroups can violate the prohibition of Rule 7.3 against improper solicitation depending on the content. It is likewise clear declining any representation of those you may come into contact with in these areas is a "safe harbor" from the ethical violations of solicitation 40, but the lawyer will still be subject to a prohibition against false or misleading statements about the lawyer or the lawyer's services.

It can probably only be fairly said that whether a newsgroup posting violates ethical rules will depend on the content of the posting and other specific circumstances 41.

Other jurisdictions have considered these issues.

Utah has recently held that attorneys may operate and maintain a web site and post advertisements to newsgroups, provided they comply with their Rule 7. Advertising through e-mail messages, which are directed to specific recipients, is generally permissible unless it violates Rule 7.3(b). Attorneys' participation in "chat groups" is considered to be an "in person" communication and subject to the restrictions of rule 7.3(a).  42   Massachusetts reached essentially the same conclusions as to web pages being appropriate and chat rooms contact being impermissible solicitation 43. That opinion also noted that a more interactive web page where the Internet addresses of the visitors were recorded and utilized for future e-mail contact were a form of solicitation. Then, according to Massachusetts Rule 7.3, all web sites having this function must be labeled as advertising and retained for two years 44.

Those state bars which have looked at quickly implementing rules have sometimes had to reverse the initial opinions. For example, the Iowa Bar Association issued Opinion 95-30 on May 16, 1996, to the effect that Internet Home Pages were advertising and certain disclosures were on the home page or on the first screen of each page. This opinion also held that sensitive e-mail with clients must be encrypted to avoid violations. This was rescinded by Opinion 96-01 which allowed written acknowledgment of the risks of Internet transmission by the client to serve as an alternative to encryption. A clarification of what constitutes sensitive material and whether password protecting word processing document sent via e-mail constituted sufficient encryption was issued in Opinion 96-33. Recently Opinion 97-01 was issued to amend Opinion 96-01 and its e-mail security requirements.

One might assume that the Iowa authorities in charge of drafting the opinions wish e-mail had never been invented.

South Carolina Bar Ethics Advisory Committee, Opinion 97-08 (June, 1997) (Approved the use of e-mail in communication with clients and reversed an earlier opinion, Advisory Opinion 94-27 (January, 1995))

Other Resources for Research on Online Advertising Issues

There can be no doubt that more attention will be paid to these emerging areas of law in the future. The initial place to study these issues is to read the Oklahoma Rules of Professional Conduct together with the Comments, Code Comparison and Oklahoma Modifications. Attention is also directed to the Annotated Model Rules of Conduct 3^rd Edition available from the American Bar Association Center for Professional Responsibility and The Law of Lawyering by Hazard and Hodes.

On the Internet there are at least two outstanding sites covering these types of ethical issues. Peter Krakaur's site Legalethics.com, located at www.legalethics.com, deals with all types of ethical issues, but concentrates on Internet related ethical issues. The Computer Law Section of the State Bar of Georgia has a Net Ethics site with numerous links to related sites and on-line articles at www.computerbar.org/netethics/. There are also many articles published online that can be located from both of the above sources 45.

Conclusion

There is almost always uncertainty in something new. Electronic communications is no exception. Our society is getting accustomed to ever present increase in technological advances but are still unsure how these advances will apply to their lives. For lawyers, this application can completely change the way a lawyer practices his profession. These advances can provide great assistance, but will require not only monetary investment but a time investment as well. Those investments will reap great rewards.

ENDNOTES:

1. The term "cyberspace" was coined by science fiction author William Gibson in his 1984 novel Neuromancer. This novel won all of the science fiction community’s most prestigious awards, including the Hugo, Nebula, Philip K. Dick, Seiun, and Ditmar awards.
2.  www.oscn.net
3.  www.abanet.org
4.  www.onenet.net/oklegal
5. Reno v. ACLU, 929 F.Supp. 824,844 (ED Pa 1996) quoted in
6.  5 Okla. Stat. Appendix 3A Rule 1.1 et seq
7.  See Ohralik V. Ohio State Bar Assn., 436 U.S. 447 (1978) for a discussion of why commercial speech is subject to greater state regulation. "The immediacy of a particular communication and the imminence of harm are factors that have made certain communications less protected than others. Compare Cohen v. California, 403 U.S. 15 (1971), with Chaplinsky v. New Hampshire, 315 U.S. 568 (1942); see Brandenburg v. Ohio, 395 U.S. 444 (1969); Schenck v. United States, 249 U.S. 47 (1919)."id. at 457 "The Rule does not prohibit a lawyer from giving unsolicited legal advice; it proscribes the acceptance of employment resulting from such advice." id. at 458
8.  www.legalethics.com
9.  All quoted material is from Rule 7.1
10.  In re R.M.J., 455 U.S. 191 (1982)
11.  Philadelphia Bar Association Professional Guidance Comm., Op. 94-12 (1995)
12. id
13.  Leoni v. State Bar, 704 P.2d 183, 217 (Cal.1985)
14.  People v. Roehl, 655 P.2d 1381 (Colo. 1983)
15. Ala. State Bar, General Counsel, Op. 89-18 (1989)
16.  Connecticut Bar Association on Professional Ethics, Op. 88-3 (1988)
17.  Mezrano v. Alabama State Bar Association, 434 Sp.2d 732 (Ala. 1983)
18.  Geoffrey C. Hazard, Jr. and W. William Hodes, The Law of Lawyering 863 (2d ed. 1990)
19.  West Legal Directory has an online area listing required web page disclaimers in various states at www.wld.com/frame/attorney/restrict.asp. See also www.computerbar.org/netethics/
20.  See Gary Taylor, "Eyes of Texas Are Upon Internet 'Ads,'" National Law Journal, Nov. 6, 1995; Alicia Philley, "The Bar as Cybercop," Texas Lawyer, Oct. 16, 1995.
21.   The Florida Bar announced the regulation of Web Page sites in the January 1, 1996 edition of The Florida Bar News. Generally, the Bar states that certain advertisements must be filed for review with the State Bar's Committee on Advertising pursuant to Rule 4-7.5. If required, the filing must include (1) a hard copy print-out of the advertisement, (2) as statement when and where the advertisement will appear, and (3) a filing fee of $100 per advertisement. The Bar, in turn, will provide an advisory opinion concerning the advertisement's compliance with the advertising rules.
22.   Reportedly, only five law firms had home pages on the World Wide Web in November 1994. Seven months later, that figure was estimated at 500 law firms. Elizabeth Wasserman, "Lawyers File Few Objections to Advertising on the 'Net," San Jose Mercury News, July 17, 1995.
23.   E-mail is also spelled email by many writers. Any Internet searches should include both spellings.
24.   In the early days of e-mail, with commercial computer systems such as CompuServe and America Online, e-mail was only available between users of the same system. Today most consumer-oriented systems provide Internet e-mail access. There are some proprietary e-mail systems that cater to businesses which offer as a selling point that their e-mail does not travel over the Internet and is thus more secure.
25.  www.computerbar.org/netethics/bjones.htm#content2
26.   For information about Pretty Good Privacy encryption software by Phil Zimmerman and his battles with the government over whether federal law was broken by the posting of PGP on the Internet, simply type PGP into any Internet Search Engine.
27.   "For most communications, encryption should not be required. Several ethics advisory committees have also reached this conclusion. Illinois State Bar Association, Opinion No. 96-10 (May 16, 1997), 13 Law. Man. Prof. Conduct 176 (1997) (Lawyers may use electronic mail services, including the Internet, without encryption to communicate with clients unless unusual circumstances require enhanced security measures.); South Carolina Bar Ethics Advisory Committee, Opinion 97-08 (June, 1997) (re-examining the issue and reversing an earlier opinion, Advisory Opinion 14-27 (January, 1995)) 13 Law. Man. Prof. Conduct 211 (1997); Vermont Bar Association Committee on Professional Responsibility, Opinion 97-5, 13 Law. Man. Prof. Conduct 210 (1997); State Bar Association of North Dakota, Opinion 97-09 (September 4, 1997), 13 Law. Man. Prof. Conduct 316 (1997) (unless unusual circumstances require enhanced security measures, lawyers may communicate with clients using unencrypted e-mail.); See also Communicating with or About Clients on the Internet: Legal, Ethical and Liability Concerns, ALAS Loss Prevention J. 17 (January, 1996)" The preceding is from Pennsylvania Opinion 97-130 (September 26, 1997)
28.   Pennsylvania Opinion 97-130 (September 26, 1997).
29.   Note that this position may not always hold true. This balancing test is dependent on conventions and technology to a certain extent. If easy and universal methods of encryption are developed or the interception of Internet e-mail becomes a more frequent occurrence, then encryption may be required for more routine attorney-client messages.
30.  See Endnote 27, supra. Arizona — The State Bar of Arizona released advisory ethics opinion 97-04 on April 7, 1997 which stated in part "it is not unethical to communicate with a client via e-mail even if the e-mail is not encrypted; this Committee simply suggests that it is preferable to protect attorney/client communications to the extent it is practical. Lawyers also are reminded that e-mail records may be discoverable, including records of time and date of transmission. This information thus should be included in the lawyer's decision as to whether or not confidential information should be communicated via e-mail." Colorado— Colorado Ethics Opinion 90 (11/14/92) provides that an attorney must exercise reasonable care to protect client confidences from inadvertent disclosure when using telephones, cellular phones, facsimile machines, and e-mail. The placement of a "confidentiality notice" may not suffice. Missouri— Missouri Opinion 1997-10 notes that an attorney web site soliciting potential clients to contact the attorney via e-mail should include on the web site a cautionary statement that e-mail communication is not necessarily secure and confidential. North Carolina— North Carolina
31.  Oklahoma City attorney Herb Kenney runs the Oklahoma Attorneys List Serv. You may subscribe to this list serv by following these instructions:
  To subscribe to that List, send an e-mail to: listproc@assocdir.wuacc.edu
  In the body of your message type:
  Subscribe OklahomaAttorneys-L
  followed by a blank space and your first and last name.
32. www.abanet.org/discussions/home.html
33.   See www.dejanews.com (Frankly, one of the authors of this article has never used newsgroups and the other has not for some time. Discussion of the modes of access may therefore be somewhat dated.)
34.  Doing a bit of cursory research into the Usenet archives using the terms "Oklahoma" and "law" yielded several interesting postings within the prior few days, including a person seeking an Oklahoma immigration lawyer, a person wanting the answer to the question of whether an insurance company can require a probate case be filed before paying uninsured motorist benefits to the children of an intestate decedent, a lively discussion over differences between Oklahoma and Texas about reciprocity in regard to certain gun permits and a discussion over whether 21 Okla. Stat. 374 which prohibits carrying or displaying a red flag "indicating disloyalty to the Government of the United States or a belief in anarchy or other political doctrines or beliefs" conflicts with 47 Okla. Stat. 12-213 requiring certain motor vehicles with projecting loads to display a red flag or lantern.)
35.   Direct mail advertising is regulated by Rule 7.2, particularly subsections (e), (f) and (j),
36.   See The Internet Newsletter, The Ethics of Giving Casual Legal Advice Online (May, 1998) by Peter Krahaur at http://www.ljx.com/newsletters/internet/1998/1998_05_00.html. The current issue of the newsletter is posted at http://www.ljx.com/newsletters/internet.
37.   Title 5 Okla. Stat. Appendix 3-A. - RULE 5.5
A lawyer shall not:
(a) practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction; or
(b) assist a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law
38.   Rule 7.3 Title 5, Okla. Stat. Appendix 3-A. provides:
(a) A lawyer shall not by in-person or telephone contact solicit professional employment from a prospective client under circumstances not described in Rule 7.3 (b), when a significant motive for the lawyers doing so is the lawyers pecuniary gain.
(b) Except under the circumstances described in Rule 7.3(c), a lawyer may solicit professional employment if the prospective client is a close friend, relative, former client if the contact pertains to the former employment, or one whom the lawyer reasonably believes to be a client.
(c) A lawyer shall not contact or cause to be contacted or send a written or recorded communication to a prospective client for the purpose of obtaining professional employment, even when not otherwise prohibited by these Rules, if:
    (1) the prospective client has made known to the lawyer a desire not to receive communications from the lawyer; or
    (2) the communication involves coercion, duress or harassment.
39.   We note that accidental public sending of messages intended to be private was a common occurrence in early chat rooms.
40.   Rule 7.3(a) provides "A lawyer shall not by in-person or telephone contact solicit professional employment from a prospective client under circumstances not described in Rule 7.3(b), when a significant motive for the lawyers doing so is the lawyers pecuniary gain." Absent a pecuniary gain motive, there can be no improper solicitation. However, a lawyer might still be disciplined for false or misleading communications under Rule 7.1.
41.   Factors may include the lawyer’s pecuniary gain motive, the false or misleading nature, and the appropriateness and broadness of the areas where the message is posted.
42.   Utah State Bar Ethics Advisory Committee Opinion No. 97-10 (Approved October 24, 1997) The opinion noted in part, " Newsgroup Postings --Attorneys can post messages to "newsgroups," which are narrowly focused interest groups. These postings are analogous to placing an advertisement for legal services in a narrow-interest magazine or newspaper. The general guidelines noted above for web sites are, therefore, applicable to newsgroup postings. Chat Rooms ‘Chat rooms’ have become a popular medium of communication on Internet sites. The typical format involves simultaneous participation of several users in a real-time exchange of written messages at a common site that are displayed at each participant's computer terminal. Although these communications can often be reduced to written form, a chat-group communication is more analogous to an in-person conversation due to its direct, confrontational nature and the difficulty of monitoring and regulating it. We, therefore, find that an attorney's advertising and solicitation through a chat group are ‘in person’ communications under Rule 7.3(a) and are accordingly restricted by the provisions of that rule."
43.   Massachusetts Bar Ethics Opinion 98-2 (May 28, 1998) at www.massbar.org/ethics/616.html
44.  id.
45.  www.legalethics.com has numerous article links. Just select "articles" from the site map. It is more simple to access online articles that way than by trying to retype the URLs. We particularly appreciated "The Internet -- Hip Or Hype? Legal Ethics and the Internet", by Professors Catherine J. Lanctot and James Edward Maule of the Villanova University Law School at www.law.vill.edu/vcilp/MacCrate/mcle/lanctot.htm

Originally published in the Oklahoma Bar Journal July 18, 1998 - Vol. 69; No.29