December 1999

Ethics and the Law: 
The Practical and Ethical Considerations of Internet Advertising: Lawyer Advertising on the Internet

by Barrie Althoff, WSBA Chief Disciplinary Counsel

Opinions expressed herein are the author's and are not official or unofficial WSBA positions.

This article reviews Washington's ethical rules on lawyer advertising, all adopted long before widespread use of the Internet, and then applies the rules to lawyer advertising on the Internet. It also looks briefly at ethical issues of e-mail, chat rooms and list serves, and then collects some useful resources in an appendix.

A lawyer's right to advertise for and solicit clients is protected as a freedom of commercial speech under the First Amendment to the U.S. Constitution. The right, however, is subject to the Bar's mandate to protect the public from, among other things, deceptive practices and undue direct solicitation. While a lawyer has a broad constitutional right to engage in commercial speech, the right is not unlimited, but is subject to reasonable restrictions related to that form of free speech.[1] 

The Washington Supreme Court's Rules of Professional Conduct (RPCs) specify the minimum level of conduct required of lawyers to avoid disciplinary action. Washington's RPCs are largely based on the American Bar Association's Model Rules of Professional Conduct, adopted in 1983 and modified a number of times since. Washington's principal ethical rules applicable to lawyer advertising are RPC 7.1 (communications concerning a lawyer's services), RPC 7.2 (lawyer advertising), RPC 7.3 (soliciting clients), RPC 7.4 (communicating a lawyer's fields of practice), RPC 7.5 (use of firm names), and RPC 8.4(c) (specifying various acts of misconduct). None of Washington's RPCs makes any reference to the Internet.

RPC 7.1 generally permits a lawyer to say anything so long as it is truthful and complete. The rule prohibits a lawyer from making false or misleading communications about the lawyer or about the lawyer's services. A communication is false or misleading if: (a) it materially misrepresents a fact or law, or omits a fact necessary to make the communication not materially misleading; or (b) it is likely to create an unjustified expectation about results the lawyer can achieve, or states or implies that the lawyer can achieve results by means that violate the RPCs or other law; or (c) it compares the lawyer's services with other lawyers' services, unless the comparison can be factually substantiated.

Misrepresentations can be in words or pictures. For example, if a lawyer's practice was merely local, but her Internet website had a map of the United States in the background and the text implied a national practice, the materials would be misleading. Similarly, if a law firm's website contained a photograph of persons who impliedly are the firm's lawyers, but are in fact paid models, the photograph would be misleading.

The rule also precludes a lawyer from creating unjustified expectations about what the lawyer will accomplish for the client. Exaggerating education, skills, expertise, training, the size or capability of the lawyer's staff, or the lawyer's "connections" with important persons would be misrepresentations under RPC 7.1(a), and would also likely create unjustified expectations of what the lawyer is capable of accomplishing and thus violate RPC 7.1(b). A lawyer generally may not use testimonials, or describe results obtained for other clients, because potential clients would likely expect similar results without regard to their own particular and unique factual and legal circumstances. The rule also generally prohibits non-factual comparisons with other lawyers.[2] 

Internet websites are relatively inexpensive to create and maintain. A professionally developed site can positively portray a lawyer or firm so that a site visitor may infer the lawyer or firm has greater depth, talents, skills and experience than they in fact have, even if everything on the site is entirely factually accurate. Similarly, by seeing an expensively furnished office, or a lawyer driving an expensive car, a client may infer the lawyer is very successful and therefore must be a "good" lawyer. In each case the potential client or visitor may evaluate the lawyer on just the information that the lawyer chooses to provide. The ethics rules, however, are not intended to address such surface impressions.

More substantial issues of truthfulness arise in the manner in which a website is constructed and the use of the language that appears or is hidden on the site. Factual statements must obviously be truthful and complete. Internet search engines can index a website by the text of the site, and by examining the various META tags inserted into the coded hypertext markup language used in the site. The tags can be hidden, embedded in coding, and thus will not be visible to the casual site visitor. The tags might not have any relationship to the site itself. Thus a lawyer who does not practice divorce law might hide "divorce" as a tag so that a person seeking a lawyer handling divorces would be directed to that lawyer's site. Similarly, a lawyer might use another well-known lawyer's name as a META tag to channel Internet inquiries to his or her own site. Both actions would violate RPC 7.1.

Internet communication can be very fast and change rapidly. Thus, there is a corresponding obligation on the lawyer to keep site information truthful at all times. Unlike a telephone directory, for example, which cannot be changed once printed and circulated, even though the information may become incorrect, website information can and should be kept accurate at all times. Information, correct when placed on a website, can become materially false through the change of circumstances. A lawyer has an ongoing obligation to assure that the information on the lawyer's website is at all times materially correct.

RPC 7.2 contains the core of the Washington Supreme Court's regulation of lawyer advertising. Its four sections both authorize and restrict lawyer advertising.

• RPC 7.2(a) permits lawyer advertising if it is not false or misleading under RPC 7.1 and does not constitute direct solicitation prohibited under RPC 7.3 (discussed on p. 36).

• RPC 7.2(b) requires lawyers to keep copies of all advertisements for two years after their last use, to keep records of when and where the advertisements were run, and to provide them to the Bar on request.

• RPC 7.2(c) prohibits a lawyer from giving anything of value to a person for recommending the lawyer's services, but permits a lawyer to pay the reasonable costs of advertising or written communications and may pay the usual charges for a not-for-profit lawyer referral service. The lawyer may not pay for persons (including "runners" or "shills") to recommend the lawyer to other persons, nor may the lawyer discount a fee for a client on the client's agreement to recommend the lawyer to others. The rule would also likely prohibit a lawyer from paying for Internet advertisements under any arrangement tying compensation to the number of hits at the lawyer's site or the number of clients resulting from the advertisement, or the number of potential clients channeled to the lawyer.

• RPC 7.2(d) requires every advertisement to include the name of at least one lawyer responsible for its content, thus advertisements may not be anonymous. If a lawyer runs a "banner ad" on an Internet website other than his or her own, must the ad also contain the lawyer's name? Such ads are usually very small and contain minimal information. Would it be sufficient for the lawyer's name to appear only after the banner ad is clicked so the visitor is then directed to the lawyer's own website? How remote can the connection be? Does the rule require that the name of an individual lawyer appear in the advertisement, or is it sufficient for the name of the law firm to appear? Must the named lawyer be a living partner to fulfill the rule's requirement? Washington authorities do not address these questions.

RPC 7.2(a) states: "a lawyer may advertise services through public media, such as a telephone directory, legal directory, newspaper or other periodical, outdoor, radio or television, or through written communication."

The listing of various media in RPC 7.2(a) is not exclusive. Subject to the restrictions of RPC 7.3 on direct solicitation, a lawyer may advertise his or her services using any public media, electronic or otherwise. A lawyer may use traditional media to sponsor a film festival, a Seafair float, a sports team or a ballet performance. A lawyer may also engage a skywriter, sandwich-boarder, or a megaphoned driver. Although there is no authority in Washington specifically permitting a lawyer to advertise on the Internet, ethics opinions from other jurisdictions conclude that lawyers may advertise on the Internet provided the advertisements otherwise comply with ethical restrictions. See, for example, Arizona Ethics Opinion 9704, Utah Ethics Opinion 97-10, and other opinions listed in the appendix. The same conclusion may be reached by considering the Internet merely to be a multimedia form of existing communication media whereby traditional print/text is combined with visuals and sound and delivered directly to the recipient.

The RPCs do not define the terms "advertisement" or "advertising." By implication from the title of RPC 7.1 ("communications concerning a lawyer's services"), advertising could include all communications about the lawyer or the lawyer's services which are originated by the lawyer or with the lawyer's authorization. But such an implied reading of the rules is too broad and would improperly restrict free speech. Not all information about a lawyer is client-development activity or necessarily advertising. The right of the Washington Supreme Court through the RPCs to limit or restrict a lawyer's constitutional right of free speech should be read narrowly. Thus, communications by a lawyer which do not constitute commercial speech should not be subject to the RPCs' advertising limitations. Commercial speech has been identified by the U.S. Supreme Court as speech which has the purpose to "propose a commercial transaction" and speech which is "related solely to the economic interests of the speaker and its audience." City of Cincinnati v. Discovery Network Inc. 113 S.Ct. 1505, 1512 (1993), and Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557, 561 (1980). In practice, however, the distinction between commercial and noncommercial free speech is far from clear, and where the two are "inextricably intermixed," the mixture is likely to be subject to regulation as commercial speech.

The RPCs do not distinguish commercial from noncommercial speech. Title 7 of the RPCs, which includes the above-cited rules, for example, is entitled "Information about Legal Services." RPC 7.1 is similarly entitled "Communications Concerning a Lawyer's Services," but its text covers both communications "about the lawyer" and about "the lawyer's services." While information about a lawyer would seem informational and non-commercial, information about the lawyer's services are more likely commercial. Clearly not every communication under RPC 7.1 is an advertisement under RPC 7.2.

The distinction between communications that are "informational" and those that are "commercial," or which constitute "advertising," is not at all clear, and any attempt to establish definitive distinctions is likely to be both impracticable and unworkable. If these distinctions are viable and the conclusions are correct, however, then merely because materials are placed on a lawyer's website does not mean they are necessarily subject to the advertising restrictions of the RPCs. While many materials on a site maintained or authorized by a lawyer which describe the lawyer or the lawyer's services might be subject to the RPCs, other materials might not. A lawyer might, for example, maintain a website containing information about the lawyer's practice or hobbies which demonstrate a lawyer's talents, expertise or interests, but which do not explicitly beckon the reader to retain the lawyer for legal services. The implied "beckoning" for legal services should not be enough to subject such information to regulation as commercial speech or advertising. Similarly, the biography of a lawyer on a website should be viewed as informational. It should not matter who a visitor to the website is, whether a potential client or an opposing lawyer, since, if the distinction between informational and commercial depended on the identity or intent of the reader or visitor, the distinction would be unworkable. A lawyer's website may thus be a mixture of information subject to regulation and information not so subject, with the distinction between the two not being clear.

Washington has no authorities yet on point. Texas takes the position that the following items are generally not advertising: "newsletters; news articles; legal articles; editorial opinions; illustrations; questionnaires; fact or opinion survey forms; announcement of office openings and relocations; request for proposals or information from the public; legal product specifications; e-mail and e-mail response forms; attorney biographical information; announcement or personnel changes; attorney and support staff recruiting; job openings; legal development and events, including verdicts, judgments, court rulings, administrative rulings, and/or legislation; announcement of seminars and events, including online registration forms therefore; links to other Internet sites (legal or otherwise); and entertainment/amusement devices." Interpretive Comment on Part 7 of the Texas Disciplinary Rules of Professional Conduct as Applied to the Internet (see Appendix). A lawyer should not assume, however, that none of the listed items will ever be considered advertising, since depending on their content and context they may well be part of a solicitation and thus be subject to the advertising rules.

Materials or comments about the lawyer or the lawyer's services placed on the Internet by persons over whom the lawyer has no control should not be viewed as advertising. Thus, a satisfied or dissatisfied client could make statements on a site over which the lawyer has no control, which should not be subject to the RPCs. While RPC 8.4(a) prohibits a lawyer from doing indirectly what the RPCs prohibit the lawyer from doing directly, it is not clear that a lawyer is ethically obligated to seek removal of such statements unless the lawyer sought or encouraged such statements.

Website pages often are linked to other pages. Are those linked pages subject to the advertising and other restrictions of the RPCs? Does it matter whether the lawyer has any control over the content of the linked pages? When linking his or her site to others, a lawyer should take care to disclaim (assuming it is true) responsibility for the content of the linked pages. Without such disclaimer the reader may infer that the lawyer, by linking the page, approves the linked page and that it is part of his or her own website. A lawyer may not link his or her website to testimonials of the lawyer's clients on their sites.

Names can be hijacked on the Internet so that messages appear to be coming from a specified location when in fact they are coming from elsewhere. Similarly, e-mails can be sent anonymously by being remailed. Even though a lawyer may not do indirectly what he or she is not permitted to do directly, the Internet may make doing so both easier and more difficult to hold an offender accountable.

RPC 7.2(b) requires a lawyer to keep a copy or recording of each advertisement and a record of when and where the lawyer used it for two years after the advertisement was last disseminated. There is no requirement in Washington to file the advertisement with the Bar, nor that the Bar review it before the lawyer uses it. The rule requires the lawyer to provide copies, dissemination information, and supporting information to the Bar if it asks for it.

While compliance with the rule is fairly easy as to traditional print or broadcast media advertisements, it is more perplexing if the lawyer advertises on the Internet with a frequently updated site linked to other sites. There is no Washington authority, and thus some uncertainty, as to what this rule requires for Internet advertising.

If a lawyer advertises on the lawyer's website, the lawyer should keep a copy of each page of the lawyer's site, and not merely of those pages that might be deemed advertising, since the two may well be inextricably intertwined. Does the rule require a copy of, or just a record as to, each non-site page linked to the lawyer's site? If a copy is required, the rule is impracticable since the lawyer would have no practicable way to keep copies of every linked non-site page over which he or she has no control. However, a lawyer should at least keep a list of sites to which the lawyer's site is linked, and a calendar of when so linked, and make it clear on the lawyer's site that the linked sites are not maintained by the lawyer.

The rule does not specify the format for the copy, whether it is to be paper or electronic. If the page is merely one-dimensional text, a paper copy should suffice, but if the page has any multimedia components, those aspects should also be replicated in the copy. A lawyer should also retain copies of the hypertext markup language version of the website to establish META tag honesty. Where possible, the lawyer should maintain logs of "hits" to the site to establish the level of dissemination of the information. The lawyer should also keep backup or archive copies of every material change to the site so that at any given time the site can be recreated. The lawyer should also keep a record of the Internet address (that is, the uniform resource locator, "URL") for each site maintained by the lawyer or on which the lawyer places advertisements, as well as the identity of the provider hosting the site, and the time periods during which each item was used.

There are no Washington authorities on these issues. In the meanwhile, guidance may be available from other states, such as the Texas comment above cited; Florida Advertising Internet Guidelines (see Appendix for cite); Association of the Bar of the City of New York Committee on Professional and Judicial Ethics Formal Opinion 98-2 (December 21, 1998); Utah Ethics Opinion 97-10; and Virginia State Bar Lawyer Advertising Opinion A-0110 (April 14, 1998).

RPC 7.3 restricts a lawyer's ability to directly solicit persons to become clients. RPC 7.3(a) applies to in-person or by-telephone solicitations, while RPC 7.3(b) applies to written solicitations. The concern underlying these restrictions is the high probability of undue influence, intimidation and overreaching in direct solicitations of vulnerable clients.

RPC 7.3(a) prohibits a lawyer from directly, or through a third person, soliciting professional employment from a prospective client with whom the lawyer has no family or prior professional relationship, either in person or by telephone, when a significant motive for the lawyer doing so is the lawyer's pecuniary gain. Such restrictions on direct in-person solicitation for gain have been upheld, for example, in Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, reh'g denied, 439 U.S. 883 (1978). If the lawyer is not soliciting the client for gain, however, but is part of a nonprofit organization seeking to advance a group right or interest, or is pursuing a federal class action, the lawyer may be able to engage in some direct solicitation of clients. See, for example, In re Primus, 436 U.S. 412 (1978), and Gulf Oil Company v. Bernard, 452 U.S. 89 (1981).

The Comment to ABA Model Rule of Professional Conduct 7.3, on which Washington's rule is based, explains that the rationale behind this restriction is that in-person or live telephone conversations subject a layperson to being importuned at possible moments of need by a trained advocate. Further, the communication, unlike advertising, is not usually recorded and is open to dispute and cannot be readily scrutinized by a third party, thus increasing the possibility of material misrepresentations or omissions.

The limitation on direct in-person solicitation does not prohibit a lawyer from directly contacting organizations, such as medical facilities, retirement homes, labor unions, business trade associations, educational institutions or other organizations that may have access to groups of persons who may need the lawyer's services, and arranging with the organizations for the lawyer to either make in-person presentations to such assembled groups, or for the organization or the lawyer to directly send such persons letters soliciting their business. The lawyer may not, however, pay such organizations for such opportunities or referrals. The lawyer may make presentations to such assembled groups, and may send mailings directed to the members or attendees at the presentations. While the attendees or recipients on their own initiative may thereafter contact the lawyer for legal services, the lawyer may not follow up such group presentations or direct mailings with in-person or with telephone (or likely, e-mail) solicitations seeking their legal business.

RPC 7.3(b) prohibits a lawyer from sending a written communication to a prospective client only if the person has made known to the lawyer a desire not to receive communications from the lawyer. If the lawyer has not been so notified, the lawyer may freely engage in direct-mail solicitations so long as the lawyer's solicitations are not false or misleading. They are, in effect, treated like any other advertisement subject to the nonmisrepresentation and advertising rules of RPC 7.1 and 7.2.

A lawyer's right to freely solicit prospective clients by mail (even targeting specific clients the lawyer believes may need the lawyer's specific services) has been upheld in Shapero v. Kentucky Bar Association, 486 U.S. 466 (1988) (lawyer solicited by mail persons whose homes were possibly in foreclosure). Thus, a lawyer may, for example, send truthful letters (although perhaps not postcards because of confidentiality concerns) about the lawyer's ability to perform legal services generally to the public at large, as well as to specific persons whom the lawyer believes are in need of the lawyer's specific legal services (for example, accident victims, persons filing for marriage dissolutions or bankruptcy, or persons purchasing houses). Unless such persons thereafter contact the lawyer on their own, however, the lawyer may not follow up such letters with direct telephone calls or in-person visits, nor may anyone else do that for the lawyer.

Similarly, the lawyer may review recent court filings or police reports to help identify persons whom the lawyer believes are likely in need of legal services. If the lawyer engages in direct mail solicitation of perhaps vulnerable potential clients, however, the lawyer should recognize that many persons consider such solicitations at such a time as "ambulance chasing" and in poor taste; thus the lawyer may equally well alienate potential clients, as well as other attorneys, particularly attorneys who are already representing such persons.[3] 

The right to directly solicit clients may be further limited to protect vulnerable potential clients. For example, the Supreme Court upheld the right of the Florida Bar to prohibit solicitation letters targeted to relatives of deceased accident victims until 30 days after an accident; see Florida Bar v. Went For It, Inc., 115 S. Ct. 2371 (1995). Washington, not having yet experienced the type of abuse found in that case, has not yet adopted such restrictions on written solicitations.

Solicitation by e-mail. Suppose a lawyer wants to solicit clients by e-mail, or by using Internet chat rooms, or by user groups or list serves? Nowhere are these mentioned in the RPCs, nor are there any Washington authorities on point.

These new means of communication raise interesting questions under the rules, since they share characteristics of in-person or telephone communications (and usually take place over telephone lines), while they are also written communications. For example, e-mail shares some characteristics of in-person or telephone communication governed by RPC 7.3(a), but is in writing governed by RPC 7.3(b). Which rules apply? Does the RPC 7.3(a) prohibition of direct solicitation of potential clients prohibit a lawyer from sending e-mail solicitations to potential clients? Although these communications are not in person, they are more immediate and personal, and closer to "real time," than written mail solicitations. At the same time, they are written communications of the type permitted by RPC 7.3(b) and can be ignored or answered at leisure by the recipient. Since they are written communications, there is a clear record of what is said in them; thus, the ABA Model Rule's stated rationale that their content is open to dispute and not readily scrutinizable by third parties would not apply. It would appear logical that the restrictions of RPC 7.3(a) should not apply to e-mail solicitations and that they should instead be governed by RPC 7.3(b), whereby a lawyer could send unsolicited e-mails to potential clients soliciting their legal business unless the persons had previously advised the lawyer not to send them communications. In considering using e-mail solicitations, a lawyer should take care to comply with RCW19.190, which prohibits sending e-mails which use a third party's Internet domain name without that party's permission, misrepresent the message's point of origin, or contain untrue or misleading information in the e-mail's subject line.

Utah Ethics Opinion 97-10, for example, concludes that e-mail is not an in-person communication of the type barred by RPC 7.3 and that accordingly a lawyer may use e-mail to directly solicit potential clients. Under this reasoning, Washington's RPC 7.3 would not prohibit a lawyer from including on a lawyer's website an e-mail link for clients to seek additional information from the lawyer, and once so sought, from the lawyer responding directly to the potential client.

On the other hand, in a 1995 disciplinary action, In re Canter (see Appendix), Tennessee disciplined a lawyer for sending unsolicited e-mails advertising his immigration practice to a large number of persons, for failing to designate the communications as advertisements and to file them in advance with the Bar (Washington's rules do not require such designation or advance filing), and for improperly implying specialization of practice (Washington also prohibits). It is not clear whether Washington would have reached the same result.

Internet chat rooms. How do the RPC 7.3 solicitation rules apply to a lawyer's participation in or use of Internet chat groups/rooms or list serves for client development where written discussions are in "real time" and there is immediate and direct communication? There may or may not be any record of the "discussions," and if there is, it is unlikely to be as readily available as would be e-mails. Washington has no authority on the use of chat rooms. While Utah Ethics Opinion 97-10 concludes that client development via Internet chat groups violates the ban on client solicitation, the Association of the Bar of the City of New York Committee on Professional and Judicial Ethics, in Formal Opinion 1998-2 (see Appendix) would permit a law firm to participate in list serve-type discussion areas, but cautions on the inherent dangers of those situations. In any case, the lawyer should recognize a high risk that any directed communication by the lawyer in response to a comment might well be viewed as the rendition of a legal opinion, and thus should use appropriate disclaimers.

RPC 7.4 allows a lawyer to truthfully communicate that the lawyer does or does not practice in particular fields of law, and restricts the lawyer's ability to claim to be a specialist.[4]  Thus, if a lawyer states "practice limited to family law," or "practicing in the areas of real estate and commercial law," the statement must be true and not merely an aspiration on the lawyer's part. The mere statement that a lawyer practices in a particular area impliedly represents that the lawyer is competent to practice in that area.

The same rules apply to a lawyer advertising on the Internet. However, the Internet also gives rise to some new considerations. A lawyer's Internet address and e-mail address are selected by the lawyer. Thus, a general practitioner lawyer might select as an Internet address words such as "divorcelaw.com" which, if factually correct, would be permissible under the rules. A site name such as "superlawyer.com" or "worlds-best-lawyer.com," or an e-mail address such as bestlawyer@win-all-lawsuits.com, would state or imply a competency and comparison to other lawyers which cannot be factually substantiated and thus would be misleading in violation of RPC 7.1(c).

When a lawyer advertises on the Internet, the lawyer in effect advertises worldwide and announces to the entire world that he or she is competent to handle legal problems. Does the lawyer's website make it clear what areas of law the lawyer is in fact competent to practice? Does it clarify that the lawyer is only admitted, for example, to practice law in the state of Washington, and is not competent to advise a client from, say, Mississippi on a local land-use or will-contest issue?

If a Washington lawyer through the Internet secures an out-of-jurisdiction client and handles the client's legal matters, has the lawyer engaged in the unauthorized practice of law in that other jurisdiction? Does it matter where the Internet host provider's computers are physically located? Does the lawyer's Internet advertising open the lawyer to charges of doing business in each jurisdiction (namely, everywhere in the world) in which the advertisement is sent or received? Must the lawyer be admitted to practice in those jurisdictions? Must the lawyer file copies of his or her website with the other jurisdictions? Must the lawyer pay income taxes to other jurisdictions on earnings attributable to the out-of-jurisdiction clients? Is the Internet any different than placing an advertisement in a nationwide publication or on national radio or television?

If a potential client e-mails the lawyer in response to the lawyer's Internet website and the lawyer responds, has the lawyer established the necessary conflict checks to assure that the lawyer's representation of the new client is not in conflict with existing clients and that the mandates of RPC 1.7 through RPC 1.11 are met?

If a lawyer communicates with a client through e-mail, has the lawyer taken precautions to assure that the client's confidences and secrets are maintained as mandated by RPC 1.6? Association of the Bar of the City of New York Formal Opinion 1998-2 and ABA Formal Opinion 99-413 each conclude that a lawyer may transmit information relating to a representation via unencrypted e-mail sent over the Internet, but that the lawyer should consult with the client as to the mode of transmitting highly sensitive information. The ABA opinion has been criticized, however, for not adequately recognizing malpractice and disciplinary issues. See Micalyn Harris article cited in Appendix.

Lawyers should at the very least consult with their clients before using e-mail, especially unencrypted e-mail, and explain to them the risks and consequences if the communication goes astray, is intercepted, or is found not to be confidential or protected by the attorney-client privilege. While a cautionary message of the type widely used on fax transmissions is probably not required by the ethics rules, it may help establish a lawyer's attempt to preserve client confidences if the e-mail goes astray and leads to a malpractice or damages suit. While sending e-mails may theoretically be like sending a postcard accessible to anyone picking it up, it is probably less likely that any third party who cares about the e-mail will both find it and read it than that the average "snail-mail" letter carrier will read postcards.

Alternatively, e-mail communications could be viewed as the equivalent to leaving documents in an unlocked room where anyone can see them, while encrypted e-mail may be the equivalent to locking that room. North Dakota Ethics Committee Opinion 99-03 (June 21, 1999) concludes that a law firm may use an online password-protected data-backup service for its files if the data transmission is secure and the information storage system adequately safeguards sensitive records. The opinion specifically likens the online service to e-mail and relies on the above-cited ABA opinion and on a North Dakota opinion.

The client should, in any case, be given the opportunity to make an informed decision as to whether they want to run the probably remote risk that the otherwise confidential information may become public. Further, lawyers should carefully document the consultation to counter possible malpractice or disciplinary charges of not properly preserving client confidences.

The Washington RPCs on lawyer advertising do not currently address Internet advertising, or the use of e-mail or other electronic forms of communication to solicit potential clients. Such advertising and soliciting offers lawyers new opportunities to inexpensively reach potential new clients, and for those potential new clients to be better informed than ever before possible. Pending authoritative guidance under Washington's rules, lawyers should carefully analyze the rationale of the existing rules, research ethics rulings from other jurisdictions, and then document that analysis and research. The Appendix can start a lawyer on the right track. Doing so will likely result in the lawyer complying with both the letter and the spirit of Washington's RPCs.

Further guidance and assistance may be found in the following selected materials, some of which, though dated, still contain useful analyses. The list is neither exhaustive nor complete. Electronic sources listed were available in late September 1999, but may not be available at later dates.[5] 

• A Re-examination of the ABA Model Rules of Professional Conduct Pertaining to Client Development in Light of Emerging Technologies: A White Paper Presented for the Purpose of Discussion by the American Bar Association Commission on Advertising (July 1998); available at http://www.abanet.org/legalserv/
advertising.html.

• ABA Formal Opinion 99-413 regarding use of e-mail for communicating with clients; available at http://www.abanet.org/cpr/fo99-413.html. For a thoughtful critical analysis of that opinion, see Micalyn Harris, "E-mail Ethics for Attorney-Client Communications: Comments on ABA Opinion Regarding Unencrypted Internet E-mail" in The Professional Lawyer (Vol. 10, No. 3, Spring 1999).

• ABA/BNA Lawyers' Manual on Professional Conduct: (a) Section 81:551-571, "Advertising and Solicitation — Internet" provides useful analysis and background on advertising and collects numerous authorities; (b) Melinda M. Hanson, "Lawyers' Firms Vie for Visibility by Creative Use of Home Pages on Web" (Vol. 14, No. 9, May 27, 1998) describes lawyers' home pages and how the Internet is being used by lawyers to advertise and develop clients; (c) Joan C. Rogers, "How Do Advertising Rules Apply to Lawyers on the Net?" (Vol. 12, No. 2, February 21, 1996) collects and analyzes older authorities; and (d) Joan C. Rogers, "Ethics, Malpractice Concerns Cloud E-mail, Online Advice" (Vol. 12, No. 3, March 6, 1996) continues the preceding article.

• Alaska Bar Association Ethics Committee Opinion 98-2 (January 16, 1998) approves use of unencrypted email, but recommends prior client consultation.

• Arizona Bar Association Ethics Opinion 97-04 (April 7, 1997) discusses use of websites, e-mail, and chat rooms; available at http://www.azbar.org/EthicsOpinions/ (specify 97-04 in search window); Ethics Opinion 99-06 prohibits a lawyer from participating in an Internet service sending legal questions from individuals to a lawyer based on the subject matter of the question and prohibits a lawyer from paying a fee for such a referral; available at http://www.azbar.org/EthicsOpinions/ (specify 99.06 in search window).

• Cincinnati Bar Association Ethics Committee Opinion 96-97-01 (undated) discusses lawyer home pages, a client's unsolicited and uncompensated listing of lawyer and linking to lawyer homepage on client's home page, and lawyer listing of client on lawyer's home page.

• Connecticut Bar Association Committee on Professional Ethics Informal Opinion No. 97-29 (October 22, 1997) applies ethics advertising rules to Internet advertising; available via West-Law as 1997 WL 816050 (Conn. Bar. Assn.).

• District of Columbia Legal Ethics Committee Opinion 281 generally approves use of unencrypted e-mail and provides a good review and analysis of other jurisdictions' ethics opinions on use of e-mail.

• Florida Standing Committee on Advertising, Advertising Regulation Internet Guidelines, available at http://www.flabar.org/newflabar/lawpractice/
adreg/adguide.html.

• Illinois State Bar Association Advisory Opinion on Professional Conduct

No. 96-10 (May 16, 1997) discusses e-mail, confidentiality, advertising and solicitation.

• Iowa Supreme Court Board of Professional Ethics and Conduct: Opinion 95-21 (February 22, 1996) discusses bar association directory of lawyers on a bulletin-board or Web page; Opinion 95-30 (May 16, 1996) discusses law firm Internet home pages and required disclosures, and requires encryption for transmission of sensitive material; Opinion 96-1 (August 29, 1996) discusses lawyers' home pages and websites as advertising, requires disclosures in full and not by hypertext links, and further discusses transmission of sensitive materials; Opinion 96-2 (August 29, 1996) discusses law firm advertising on the Internet and use of terms implying specialization; Opinion 96-14 (December 12, 1996) concludes that Internet advertising by an out-of-state law firm which has a branch office in Iowa constitutes solicitation of Iowa residents and must comply with Iowa ethics rules; the opinion also concludes the firm could maintain two separate unlinked sites (one for the Iowa office, the other for the other offices) and in that case only the site directed to Iowa residents would have to comply with Iowa rules; Opinion 96-33 concludes that password-protected documents may be sent over e-mail and discusses "sensitive documents"; Opinion 97-1 (September 18, 1997) amends 96-1 and 96-33 to provide that the level of protection needed for e-mail is to be determined by lawyer-client consultation and written client consent; and Opinion 97-23 (March 3, 1998) prohibits a lawyer from participating in an Internet advertising program that charges annual listing fees for listings.

• Kansas Bar Association Ethics Advisory Committee Opinion 97-07 (October 15, 1997) concludes that a lawyer may not list his Martindale-Hubbell "AV" rating on his letterhead or use it on advertising (including on the Internet) without significant disclaimers.

• Kentucky Bar Association Ethics Opinion E-403 (undated) approves unencrypted e-mail "unless unusual circumstances require enhanced security measures" and permits Internet advertising.

• The Legalethics.com website is a good place to start researching on the Internet for the topic of ethical issues involving Internet advertising, and is regularly updated; available at http://www.legalethics.com/.

• Maryland State Bar Association Committee on Ethics Opinion 97-26 (July 17, 1997) permits a lawyer to use an Internet website to advertise law firm, but cautions that the lawyer must make clear the states in which the lawyer is authorized to practice law.

• Massachusetts Committee on Professional Ethics Opinion 98-2 (May 27, 1998) discusses a bar association Internet membership directory with hotlinks to home pages of individual members, and use of chat rooms.

• Report of the Massachusetts Supreme Judicial Court Committee on Lawyer Advertising (Draft 10/28/98) considers and comments on proposed advertising and solicitation rule changes, including Internet-related aspects.

• Michigan Ethics Opinion RI-276 (July 11, 1996) discusses use of Internet, e-mail, solicitation and chat rooms; available at http://www.michbar.org/opinions
/ethics/numbered_opinions/ri-276.htm.

• Office of the Missouri Chief Disciplinary Informal Opinion 960151 (undated) concludes that a lawyer's website need not contain an advertising disclaimer [not required in Washington], but if the lawyer actively sends the materials to others it may need a disclaimer. Informal Opinion 970010 (undated) suggests that a lawyer's website which encourages potential clients to contact the lawyer by e-mail should caution that e-mail may not be confidential. Informal Opinion 970230 (undated) requires a lawyer to obtain prior client consent before using e-mail, and requires the lawyer's website to contain information about possible interception of e-mail.

• Nebraska State Bar Association Advisory Committee Opinion 95-3 prohibits a lawyer from paying to participate in a for-profit Internet lawyer referral program which provides an Internet directory of lawyers at online shopping malls; available at http://www.nebar.com/disc/
opinions/95-3.htm.

• Association of the Bar of the City of New York Committee on Professional and Judicial Ethics Formal Opinion 1998-2 (December 21, 1998) discusses, among other things, Internet advertising, use of list-serve discussion areas, and use of unencrypted e-mail; available at http://www.abcny.org/eth1998.htm.

• New York County Lawyer's Association Committee on Professional Ethics Opinion 721 (May 14, 1997) permits lawyer advertising on an Internet site maintained by another, subject to certain restrictions; available at http://www.legalethics.com/states/721.htm.

• New York State Bar Association Committee on Professional Ethics Opinion 704 (undated) permits a law firm to use e-mail and list its Internet website on its letterhead. Ethics Opinion 709 (September 16, 1998) discusses use of the Internet to advertise and conduct trademarks law practice, e-mail use, and trade names; available at http://www-1.nysba2.org/opinions/
Opinion709.html.

• North Carolina State Bar Ethics Committee Opinion RPC 239 (October 16, 1996) permits use of Internet advertising; available at http://www.barlinc.org/ethics/
ethp239.html and via WestLaw as 1996 WL 875828 (N.C. St. Bar.); Opinion RPC 241 (October 16, 1996) permits, subject to some restrictions, a lawyer to participate in an Internet lawyer directory; available at http://www.barlinc.org
/ethics/ethp241.html.

• North Dakota State Bar Association Ethics Committee Opinion 99-03 (June 21, 1999) approves law firm use of computer online backup of law firm electronic records if the firm takes appropriate care to ensure that the data is transmitted and stored securely.

• Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility Informal Opinion No. 96-17 (May 3, 1996) discusses lawyer advertising on the Internet; available via WestLaw as 1996 WL 928126 (Pa.Bar.Assn.Comm.Leg.Eth.Prof.Resp.). Informal Opinion No. 96-112 (August 27, 1996) prohibits participation in an Internet real estate lead/referral service; available via WestLaw as 1996 WL 935273 (Pa.Bar.Assn.Comm.Leg. Eth. Prof.Resp.). Informal Opinion 97-130 (September 26, 1997) discusses e-mail, consultation, encryption and warnings; available at http://www.legalethics.com/states/97_130.htm. Informal Opinion No. 98-85 (July 24, 1998) discusses Internet advertising; available via WestLaw as 1996 WL 988187 (Pa.Bar.Assn.Comm.Leg.Eth.Prof. Resp.) and at http://www.legalethics.com/states
/98_85.html.

• Philadelphia Bar Association Professional Guidance Committee Opinion 98-6 (March 1998) discusses use of Internet chat rooms and bulletin boards.

• State Bar of South Dakota Ethics Opinion 98-10 (January 12, 1999) prohibits participation in an Internet referral service.

• Tennessee Board of Professional Responsibility Formal Ethics Opinion 99-F-144 (June 14, 1999) discusses listing of law practice on the Internet. Formal Opinion 98-A-650(a) (November 19, 1998) allows use of e-mail to transmit client confidences. See also extract from a disciplinary proceeding, In re Canter (Dkt 95-831-O-H), suspending a lawyer for one year for abusive (spamming) Internet advertising of his immigration practice (and disbarring the lawyer for other violations); available at http://www.legalethics.com/states/disbar.htm. The case is discussed at http://www.wired.com/news
/news/politics/story/5060.html.

• The State Bar of Texas website collects advertising (including Internet) materials. See also Interpretive Comment on Part 7 of the Texas Disciplinary Rules of Professional Conduct as Applied to the Internet (January 1996).

• Utah State Bar Ethics Advisory Committee Opinion No. 97-10 (October 24, 1997) discusses Internet advertising of legal services and use of news-group postings, chat rooms, solicitation.

• Vermont Bar Association Committee on Professional Responsibility Opinion No. 97-5 (undated) permits unencrypted e-mail and requires a lawyer who uses a website to communicate with clients and potential clients to meet advertising/solicitation rules; available at http://www.vtbar.org/AdvisoryEthicsOpinions
/1997/97-05.htm.

• Virginia State Bar Legal Ethics Opinion 1702 (November 24, 1997) discusses inadvertent receipt of e-mail; available at http://www.vacle.org/opinions/1702.TXT. Lawyer Advertising Opinion A-0110 (April 14, 1998) discusses Internet advertising and use of chat rooms; available at http://www.vsb.org/committees/standing/
advertising/a110.htm. 

NOTES

1 For a discussion of these issues and a survey of Washington's lawyer advertising/solicitation rules, see Althoff, "Lawyer Advertising and Solicitation," Washington State Bar News, May 1997, page 41, portions of which have been adapted for use in this article.

2 Often such comparisons are indirect. WSBA Informal Opinion 91-2 gives examples of statements violative of RPC 7.1: "largest jury verdict," "largest recovery ever obtained," "Attorneys who get results," "Over 50 years' combined experience," and "Lawyers who work hard."

3 A lawyer may also directly communicate with an existing client, by mail or in person, when the lawyer is moving his or her practice to another firm. While the lawyer may notify a client of the lawyer's intent to move and of the client's right to decide who will continue to represent the client, and RPC 1.4 may obligate the lawyer to do so, the lawyer may not directly solicit the client to move with the lawyer. If the lawyer does, the lawyer may be open, for example, to charges by the old firm of breach of contract, breach of fiduciary duty, or tortious interference with relationships.

4 A lawyer may state, if true, that the lawyer has been admitted to engage in patent practice before the United States Patent and Trademark Office and to use the designation "patent lawyer." A lawyer may also, upon issuance of an identifying certificate, award or recognition by a group, use the terms "certified," "specialist," "expert" or similar term. To do so, however, the reference must be true, verifiable and not misleading; the group so certifying or identifying must be identified; and the reference must clearly indicate that the Washington Supreme Court does not recognize certification of specialties in the law and that such certification is not a requirement to practice law in Washington.

5 I thank Adam Levin, now a member of the Washington Bar, who as a law school student helped compile an earlier version of this appendix.

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