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

C. GLOBALREACH

The final major difference between web sites and more traditional forms of advertising is also the most obvious: the global reach of the Internet.80 This aspect of the Internet applies to e-mail, listservs, web pages, and web search engines. It is also one of the most problematic for the regulation of Internet-based marketing of legal services. The wide variety of state rules on advertising are particularly implicated in this discussion of Internet-based advertising. A lawyer could send e-mail to prospective clients without knowing what state that person lived in and what ethics rules would apply to that solicitation. Similarly, a lawyer could create a web site that could be viewed by anyone from Alaska to Wyoming.

The Model Rules address the problem of which set of ethical rules to apply in Rule 8.5(b)(2):

Choice of Law. In any exercise of the disciplinary authority of this jurisdiction, the rules of professional conduct to be applied shall be as follows:

(2) for any other conduct, the rules of the jurisdiction in which the lawyer's conduct occurred, or if the predominant effect of the conduct is in a different jurisdiction, the rules of that jurisdiction shall be applied to the conduct. A lawyer shall not be subject to discipline if the lawyer's conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect of the lawyer's conduct will occur.81

Comment 5 to Rule 8.5 states:

When a lawyer's conduct involves significant contacts with more than one jurisdiction, it may not be clear whether the predominant effect of the lawyer's conduct will occur in a jurisdiction other than the one in which the conduct occurred. So long as the lawyer's conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect will occur, the lawyer shall not be subject to discipline under this Rule.82

Under Rule 8.5(b)(2) it is very difficult to decide where the predominant effect of a lawyer's conduct on the Internet occurs. It is even more difficult to determine how a lawyer might make a good-faith effort to comply with the ethical rules of that jurisdiction. If a lawyer purchases a list of e-mail addresses and sends spam to them, that lawyer has almost no way of knowing where the recipients live and where they will read the message. Similarly, a lawyer who practices primarily in a jurisdiction with relatively lax advertising and solicitation rules would have no way to predict that his web site might be visited by natives of Florida, a state with some of the strictest limitations on lawyer advertisement and solicitation.83 With the increase in lawyer advertisement on the Internet, there is a need to determine how choice of law rules will apply in these situations.

IV. THE ETHICS 2000 INTERNET-INFLUENCED CHANGES TO THE MODEL RULES

The Model Rules that are related to the marketing of legal services are Rules 7.1, 7.2, and 7.3. These rules and the comments accompanying them were substantially altered through the Ethics 2000 process.84 However, Ethics 2000 made few Internet-inspired changes in Rules 7.2 and 7.3. The changes were mostly cosmetic and basically analogized Internet-based marketing with that done through other types of media such as print, television, and the telephone. Ethics 2000 made no Internet-related changes to Rule 7.1.85