Untangling the Wicked Web: The Marketing of Legal Services on the Internet and the Model Rules

Georgetown Journal of Legal Ethics, The, Summer 2004 by Hurld, Christopher

However, the simple addition of the phrase "electronic communication" to the previously existing list of regulated media once again ignores the fundamental nature of the Internet. The Ethics 2000 changes make no reference to spam and the unique problems spam presents. While the "regulation-by-analogy" approach is laudable for its attempt to regulate the marketing of legal services via the Internet by examining the Internet's similarities to previously existing media, this approach only provides half the answer. As previously mentioned, the Internet is a unique creation.115 As such, Internet regulation with regard to lawyer advertisement requires a recognition how it is both similar and different to previously existing media.

V. POSSIBLE INTERNET-BASED CHANGES TO THE MODEL RULES

A. SPAM

Because of the problems specific to the widespread use of spam, there is good reason to believe that the use of spam to solicit clients should be prohibited. This change would recognize that spam is not analogous to a regular mail solicitation because of the potentially huge cost to the recipient and third parties.116 An effective way of working this prohibition into the current rules would be to add e-mail to the list of prohibited forms of contact in Rule 7.3(a). An additional comment detailing the costs imposed on the recipients of spam and third parties could also be added.

This prohibition would most likely be permissible under the First Amendment. Applying the Central Hudson test, we must first must decide if the spam would be considered false or misleading.117 As previously mentioned, a lawyer could send completely accurate and non-misleading spam. second we must ask if the government interest is substantial.118 The government does has a substantial interest in protecting Internet service providers and consumers from having to waste time and money dealing with spam. Third, we determine whether the governmental interest is furthered by the regulation.119 The interest in protecting consumers from incurring costs from spam would certainly be furthered by prohibiting lawyers from sending it. Finally, we must decide if there is a reasonable fit between the government interest and the regulation.120 Prohibiting lawyers from sending spam reasonably fits with the government's interest in protecting consumers. Thus, the spam ban would probably pass constitutional muster.

B. WEB SITES AND SEARCH ENGINES

The ability to change web sites without much cost creates a responsibility on the part of a lawyer with regard to the information he or she expresses on the Internet. If a lawyer makes a communication on his or her web site that was not originally false or misleading under Rule 7.1 but becomes so when circumstances change, the lawyer should be required to correct the information. Rule 7.2 should make clear that lawyers must regularly check their web sites for information that has become false or misleading. In the event that some information becomes false or misleading, the lawyer should be required to exercise reasonable care to correct the problem. Model Rule 5.3 (Responsibilities Regarding Nonlawyer Assistants) requires a lawyer to make reasonable efforts to ensure that the conduct of their nonlawyer assistants is compatible with the professional obligations of the lawyer, and to take reasonable remedial action if it is not.121 Law firms should be required to also hold the designers of their web sites to this standard.