Editor's Note:
State Bar Ethics Opinions cite the applicable California Rules of Professional Conduct in effect at the time of the writing of the opinion. Please refer to the California Rules of Professional Conduct Cross Reference Chart for a table indicating the corresponding current operative rule. There, you can also link to the text of the current rule.
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What aspects of professional responsibility and conduct must an attorney consider when providing an Internet web site containing information for the public about her availability for professional employment?
An attorney's Internet web site providing to the public information about her availability for professional employment is a "communication" under rule 1-400(A) of the Rules of Professional Conduct and an "advertisement" under Business and Professions Code sections 6157 to 6158.3. As such, it is subject to the applicable prohibitions on false, misleading, and deceptive messages. The content of the pages constituting the web site must be prepared carefully to satisfy these rules. This applies to the words that make up the message and to the images and sounds which are part of the presentation. Under the facts presented, the web site is not a "solicitation" under rule 1-400(B) even if it includes electronic mail facilities allowing direct communication to and from the attorney. The attorney also must be aware of the possibility that the web site might be subject to regulation by other jurisdictions or that it might be considered the unauthorized practice of law in other jurisdictions.
Rules 1-100, 1-300, and 1-400 of the California Rules of Professional Conduct.
Business and Professions Code sections 6157, 6157.1, 6157.2, 6158, 6158.1, 6158.2, and 6158.3.
Attorney A has established and maintains an Internet 1 web site.2 The web site includes a description of Attorney A's law firm and its history and practice; the education, professional experience, and activities of the firm's attorneys; law-related images; and an electronic mail3 form allowing for communication to any attorney in the firm. The firm is in private practice. The web site's text and pictures describe and illustrate various aspects of the firm's practice, providing the kind and scope of information normally found in printed lawyer directories. The web site is found easily by using any of the several search engines available to Internet users, and it is publicly accessible to anyone in any location who has Internet access. The web site does not include live video interactivity, a bulletin board,4 links5 to other law-related web sites, or news group6 functions.
Each new form of communication requires consideration of how its use by members of the California State Bar (hereinafter "members") might be affected by the Rules of Professional Conduct (hereinafter "rules") and the State Bar Act. While most forms of communication are either geographically local (commercial radio) or one-way (television, cable, and print media), the Internet provides the member easy and simultaneous access to people all over the world, with the possibility of two-way communications. In this opinion, we consider ethical implications of the attorney's Internet web site described in the statement of facts.7
The principal issue raised by Attorney A's Internet web site is its status as advertising or solicitation under rule 1-400. Rule 1-400(A) defines a "communication" as "any message or offer made by or on behalf of a member concerning the availability for professional employment . . . directed to any former, present, or prospective client, including but not limited to the following: . . . (2) Any . . . brochure or other comparable written material describing such member, law firm, or lawyers; or . . . (3) Any advertisement (regardless of medium) of such member or law firm directed to the general public or any substantial portion thereof . . . ."
We conclude that Attorney A's web site is a "communication" within the meaning of rule 1-400(A). We believe that this conclusion is not altered by the fact that the web site is accessed by a curious individual rather than being "directed" to that person, just as a lawyer's posted handbill is a "communication" even though individuals must choose to read it in order for the message to be communicated. We also believe that this conclusion is not altered by the inclusion in the web site of information and material of general public interest. The web site fits within the scope of rule 1-400(A) because it concerns the firm's availability for professional employment; the web site is directed to the general public. Rule 1-400(A)(3) includes within the definition of "communication" every advertisement "regardless of medium."
For these reasons, we believe that Attorney A's web site must conform to all of the rules governing "communications." This includes the requirements that the communication must not be false or misleading (rule 1-400(D)(1), (2), and (3)) and must not fail to indicate clearly, expressly, or by context, that it is a communication (rule 1-400(D)(4)). The relevant standards adopted by the Board of Governors under rule 1-400(E) also apply.
Rule 1-400(F) adds the requirements that the attorney retain for two years copies or recordings of any communications by written or electronic media and that these copies or recordings be made available to the State Bar if requested. These requirements apply to each page of every version and revision of the web site.
Because the web site is a "communication," we next must consider whether it also is a "solicitation" under rule 1-400(B). Rule 1-400(B) defines a "solicitation" as any communication:
"(1) Concerning the availability for professional employment of a member or a law firm in which a significant motive is pecuniary gain; and
"(2) Which is;
(a) delivered in person or by telephone, or
(b) directed by any means to a person known to the sender to be represented by counsel in a matter which is a subject of the communication."
We conclude that Attorney A's web site is not a "solicitation" under rule 1-400(B). Even if we presume that pecuniary gain is a significant motive in establishing and maintaining the Internet web site, in this situation the requirements of subparagraph (B)(2) are not met. Those requirements are stated in the alternative and can be met under either (B)(2)(a) or (B)(2)(b). Under (B)(2)(a) the requirements are met only if the communication is "delivered in person or by telephone." This language is specific and was intended as a "bright line" test that lawyers and disciplinary bodies can understand and apply easily. On one side of the line are certain solicitations, including some made in person or by telephone, which have been found to be "inherently capable of abuse" and which may be prohibited consistent with the First Amendment. (State Bar, Request That the Supreme Court of California Approve Amendments to the Rules of Professional Conduct of the State Bar of California and Memorandum and Supporting Documents in Explanation (1987) (hereinafter "State Bar Request") at p. 18, citing Ohralik v. Ohio State Bar Association (1977) 436 U.S.447 [98 S.Ct.192, 56 L.Ed.444] (hereinafter "Ohralik"), and In Re R.M.J. (1982) 455 U.S. 191[102 S.Ct. 929, 71 L.Ed.2d 64]. (Cf. Edenfield v. Fane (1993) 507 U.S. 761, 773-77 [113 S.Ct. 1792, 123 L.Ed.2d 543], in which the Court held that the reasoning behind its approval in Ohralik, of Ohio's ban on in-person solicitation by lawyers, does not apply to similar Florida CPA regulations because, among other things, CPA's are trained in independence and objectivity, not advocacy and persuasion.) On the other side of the line are communications which may not be prohibited under the First Amendment and which therefore are subject only to regulations that deal with such things as false or misleading statements.
We further conclude that neither the nature of the website communication nor the nature of the technology it employs to reach readers requires a different result. Although e-mail communication as part of website technology permits faster responses and more interaction than is possible with other forms written communication, it does not create the risk that the attorney might be able to use her persuasive ability and experience to influence unduly the potential client's thoughtful decision to hire her. Similarly, although e-mail can be transmitted through telephone lines, its resemblance to a telephone discussion ends with the mechanism of transmission. The static nature of an e-mail message allows a potential client to reflect, re-read, and analyze; the written form allows the potential client to share and discuss the communication with others and maintain a permanent record of its contents; and the mechanical steps involved in sending and receiving messages impose a measured pace on the interchange.
The alternative requirement of subparagraph (B)(2)(b), that the communication is directed "to a person known to the sender to be represented by counsel in a matter which is a subject of the communication," is not met by a communication that is made available to everyone, but directed to no one in particular. In addition, this requirement includes only communications that are initiated by the attorney. It was not intended that there be any ban on a new client's contacting a lawyer, for example, in order to seek a "second opinion."8 The attorney is not the initiator of the communication merely because she includes e-mail facilities in her web site any more than if she printed her telephone number and e-mail address in a printed advertisement, law directory, or telephone book. If a visit to the web site were to lead to a response by Attorney A, now directed to an identified person, that response would be a solicitation under rule 1-400(B)(2)(b) only if the person is "known to the sender to be represented by counsel in a matter which is a subject of the communication." If this requirement is met, then the communication is a solicitation if "directed by any means . . . ."
We conclude that Attorney A's web site, in addition to complying with the rules applicable to communications, must comply with the relevant requirements of Business and Professions Code sections (hereinafter "sections") starting at section 6157. Those sections contain various standards and restrictions regarding lawyer advertising. Section 6157, subdivision (c) defines advertising as "any communication, disseminated by television or radio, by any print medium . . . or by means of a mailing directed generally to members of the public and not to a specific person, that solicits employment of legal services provided by a member . . . ." This definition effectively is broadened by section 6158 to include advertising by any "electronic media," which section 6157, subdivision (d) defines to include computer networks.
Among other things these sections prohibit any advertising that is false or misleading (6157.1) or contains any guaranty of outcome or promise of quick payment (6157.2). Sections 6158.1 and 6158.2 establish categories of advertising that are presumed to violate or not to violate section 6158. It is particularly important to note that section 6158 explicitly recognizes that the message of electronic media "means the effect in combination of the spoken word, sound, background, action, symbols, visual image, or any other technique employed to create the message." Section 6158 provides that the "message as a whole may not be false, misleading, or deceptive, and the message as a whole must be factually substantiated."
The concerns and requirements described above apply to the activities of Attorney A in California, and apply equally to foreign attorneys9 in California in their "communications" in California about their availability to provide legal services in California for pecuniary gain. Rule 1-100(D)(2) states that the rules apply to lawyers from other jurisdictions who are not members of the California Bar "while engaged in the performance of lawyer functions in this state . . . ." It appears, however, that sections 6157 to 6158.3 do not apply to foreign attorneys. This is because section 6157, subdivision (c) defines the key terms "advertise" and "advertisement" only with regard to the availability of "a member" to provide legal services, and "member" is defined by section 6157, subdivision (a) as a member of the State Bar of California.10
Rule 1-100(D)(1) addresses the implications of Attorney A communicating outside of California. It states: "These rules shall govern the activities of members in and outside this state, except as members lawfully practicing outside this state may be specifically required by a jurisdiction in which they are practicing to follow rules of professional conduct different from these rules." Rule 1-300(B) states: "A member shall not practice law in a jurisdiction where to do so would be in violation of regulations of the profession in that jurisdiction."
In order to avoid violating these rules, Attorney A must be aware of the conflicts among the rules of different jurisdictions, and she must comply with the rules of each jurisdiction that apply to her and impose additional or stricter requirements than those found in California. She must recognize the possibility that the advertising rules of other jurisdictions may apply to her Internet web site even if she is licensed only by California and intends to practice only in California.
This leaves two options for California attorneys who maintain Internet web sites for their law practices. They can choose to use their web site to advertise in multiple jurisdictions. This is not necessarily inappropriate, but it requires that they assure themselves that they are complying with any applicable rules of the different jurisdictions involved, including rules governing the unauthorized practice of law (assuming that there is no inconsistency in the applicable rules that would make this impossible).11 Alternatively, they can take steps to make clear that they are not advertising in other jurisdictions.
There is no certain method or form of notice that provides assurance that an attorney's Internet web site will not be found to be an advertisement, holding oneself out as available to practice law or the unauthorized practice of law in other jurisdictions. We make the following suggestions as examples of the kind of statements which, if accurate, might assist in avoiding regulation in other jurisdictions: 1) an explanation of where the attorney is licensed to practice law, 12 2) a description of where the attorney maintains law offices and actually practices law, 3) an explanation of any limitation on the courts in which the attorney is willing to appear, and 4) a statement that the attorney does not seek to represent anyone based solely on a visit to the attorney's web site
Even these suggestions may not comply with the rules of other jurisdictions. For example, the Arizona State Bar Committee on Rules of Professional Conduct has stated in its Opinion Number 97-04 on Internet communications that under Arizona rule 8.5 (concerning the scope of disciplinary authority), a law firm must comply with the Arizona rules if it has an office in Arizona or has lawyers admitted to practice in Arizona. Similarly, the Iowa Supreme Court Board of Professional Ethics and Conduct has opined that an out-of-state law firm must meet with all the requirements of the Iowa Code of Professional Responsibility for Lawyers if it advertises that it has a branch office in Iowa or "that certain firm members are licensed to practice in Iowa." (Iowa Formal Opn. No. 96-14). California attorneys should carefully review the rules of any other state that might be applicable to their activities. (See fn. 7, ante.)
While the rules and the State Bar Act do not address the Internet specifically, their advertising rules and restrictions apply to Internet web sites as much as they do to other forms of communication. The web site contents, including its words, sounds, and images, must be chosen carefully to satisfy all applicable California requirements.
Also the Internet makes cross-jurisdictional practice easier and increases the risk that a California attorney's advertising will be deemed to violate the rules of other jurisdictions or be considered to be the unauthorized practice of law in other jurisdictions. Current authority suggests that attorneys should be especially sensitive to the rules of other jurisdictions if they are licensed to practice or maintain an office in another state or if they seek clients or provide legal services in another state.
This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of the State Bar of California. It is advisory only. It is not binding on the courts, the State Bar of California, its Board of Governors, any persons or tribunals charged with regulatory responsibilities, or any member of the State Bar.
1 "Internet" means a supernetwork of computers that links together individual computers and computer networks located at academic, commercial, government, and military sites worldwide, generally by ordinary local telephone lines and long-distance transmission facilities. Communications between computers or individual networks on the Internet are achieved through the use of standard, nonproprietary protocols. (Ill. State Bar Assn. Opn. No. 96-10.)
2 "Web site" means a set of computer files containing text and graphics in the HTML format and organized around a central home page. A "home page" is a computer file containing text and graphics in the HTML format and usually providing information about its owner. A home page can be obtained over the Internet and viewed by transmitting home page computer files from the owner's computer to the user's terminal. (Ibid.)
3 "Electronic mail" (hereinafter "e-mail") refers to an electronic message that is sent from one computer to another, usually through a host computer on a network. E-mail messages can be sent through a private or local area network (within a single firm or organization), through an electronic mail service (e.g., America Online, CompuServ, or MCI Mail), over the Internet, or through any combination of these methods. (Ibid.)
4 "Bulletin board" refers to an electronic bulletin board on a network where electronic messages may be posted and browsed by users or delivered to e-mail boxes. (Ibid.)
5 "Links" is a shorthand term for "hyperlinks" and means text or symbols that the user may click on to switch immediately to the item or other internet address identified. (Ibid.)
6 "Newsgroup" is a type of bulletin board service in which users can exchange information on a particular subject. (Ibid.)
7 Other issues may arise under other technologies or usages and in other jurisdictions. (See, e.g., American Bar Association Commission on Advertising White Paper on Advertising and the Internet (July 1998) (http://www.abanet.org/legalservices/whitepaper.html) [surveying history of ethics and legal advertising rules; describing various electronic media technologies; summarizing state bar ethics opinions on Internet advertising; applying current American Bar Association (hereinafter "ABA") rules to web pages, e-mail, chat rooms, meta-tags, links, and other Internet technology; and proposing amendments to ABA Model Rules]; "The Internet Legal Ethics Site" (http://www.legalethics.com) [web page of private attorney concerning legal ethics issues, surveying approximately 40 state and local bar ethics opinions concerning lawyer Internet advertising, and containing links to other sites concerning legal ethics]; Florida Internet Guidelines (http://www.flabar.org/newflabar/lawpractice/adreg/adguide.html) [addressing legal ethics and electronic communications].)
8 The definition of "solicitation" under rule 1-400(B) is intended to apply only to "a communication concerning professional employment for pecuniary gain, made in person or by telephone, which is initiated by or on behalf of the lawyer or law firm." (State Bar Request at p. 17.)
9 Rule 1-100(B)(3) defines "lawyer" as "a member of the State Bar of California or a person who is admitted in good standing of and eligible to practice before the bar of any United States court or the highest court of the District of Columbia or any state, territory, or insular possession of the United States, or is licensed to practice law in, or is admitted in good standing and eligible to practice before the bar of the highest court of, a foreign country or any political subdivision thereof."
10 We do not address in this opinion the issue of whether the police power or other doctrines are broad enough to allow for the regulation of foreign attorneys in their "communications" to Californians about their availability to provide legal services outside California, nor do we address unauthorized practice of law issues related to foreign attorneys providing legal services inside California. (See Birbrower, Montalbano, Condon & Frank v. Superior Court (1998) 17 Cal.4th 119 [70 Cal.Rptr.2d 304] [foreign lawyers engaged in the unauthorized practice of law in violation of Business and Professions Code section 6125 were not entitled to compensation for those services]; Estate of Condon (1998) 65 Cal.App.4th 1138 [76 Cal.Rptr.2d 922] [out-of-state attorney practicing law on behalf of out-of-state client does not necessarily violate Business and Professions Code section 6125]; Cal. State Bar Formal Opn. No. 1997-148, p. 2, fn. 5 [observation regarding court decisions and ethics opinions in various jurisdictions finding unauthorized practice of law concerns in the context of "trust mill" operations]; Kentucky Rule 7.01 [the Kentucky advertising rules apply to advertisements "directed to residents of the Commonwealth of Kentucky"]; Florida Bar v. Kaiser (Fla. 1981) 397 So.2d 1132 [foreign lawyer engaged in the unauthorized practice of law when his interstate law firm gave the incorrect impression through advertisements that he was authorized to practice law in Florida]; In re Professional Ethics (N.J. 1982) 44 A.2d 1092 [New Jersey firm associated with a particular out-of-state firm could not advertise that relationship so long as the out-of-state firm advertised by television (which was not then permitted by New Jersey rules) the availability of the out-of-state firm's legal services in New Jersey through associated New Jersey firm].)
11 We do not address in this opinion the issue of what state's advertising rules will apply to a lawyer who is licensed in more than one state. ABA Model Rule 8.5(b)(2)(ii) suggests a choice-of-laws rule for disciplinary purposes when lawyers are licensed in more than one state. Despite the possible arguments that arise from choice-of-law concepts, the most prudent course for any attorney licensed in more than one jurisdiction is to comply with the advertising rules of each jurisdiction.
12 Because of the prohibition on misleading and deceptive communications, an attorney's letterhead should not mislead as to the jurisdictions in which the attorney is licensed to practice. (See L.A. Cty. Bar Assn. Formal Opn. No. 392; ABA Model Rule 7.5(b)). This concept applies to all "communications." South Carolina Ethics Opinion Number 94-27 (1995) states that any notice or advertisement that may reach potential clients in jurisdictions where the lawyer is not admitted to practice must identify the geographic limitation of the lawyer's practice or else the advertisement could be misleading.
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