B. What constitutes advertising

Before determining how to apply past court decisions on legal advertising, we must determine whether or not maintaining a web site on the Internet constitutes advertising and thus within the category of commercial speech. If maintaining a web site is not determined to be commercial speech, then the web site is entitled to full First Amendment protection. Accordingly ethical rules regarding legal advertising become a moot point, and lawyers utilizing the Internet may surf on without fear.[21] If an attorney's web site is considered a form of advertising, then it must conform to the lawyer advertising statutes of the state of the attorney and possibly of all states where the web site may be viewed.

Whether or not a lawyer or law firm's web site constitutes advertising is a contested issue. Several lawyers with a web site or home page already posted on the Internet have considered their site to be an informative source and not advertising. This view is based on comparing the informative nature of a web site to the informative nature of a law review article. Like a law review article, a strictly informative web site or home page is generally not an advertisement.[22]

On the other hand, one could argue that even the submission of free information in a web site, home page or discussion contribution, if improperly used, is not only advertising, but in fact, is an illegal, bait and switch type of advertising. In the case of Kentucky Bar Assoc. v. Gangwish, bait and switch scheme was held to be an illegal form of advertising that breached ethical rules prohibiting fraud and dishonesty.[23] In Gangwish, an attorney advertised a service wherein he would assist in finding peoples' parents. However, when people responded to the newspaper ad, he would reply and only then would he reveal himself as a lawyer. In actuality, the service under which the attorney advertised did not exist. Similarly these web sites or home pages that purely give information may not even identify the attorney as the source of the information and thus run into the Gangwish problem. Additionally some web sites or home pages "may create an image of the owner as an expert in a field, that the site owner is a lawyer, thus enhancing his/her image having legal expertise in a specific area."[24] This also might be construed as misleading, unethical, and potentially illegal.

The view held by many Internet lawyers that a web site or home page is merely informative is beginning to change. Web sites and home pages are evolving away from merely being creatures of information. As a result, for the purposes of analogyzing the existing laws and restrictions on current advertising mediums like print, radio, television and how they apply to netvertising, the content of web sites, home pages and discussion contributions on the Internet must be examined carefully. The types of content found on web sites and home pages fall on a continuum. At one end of the continuum there exist web sites and home pages that are exclusively comprised of free information. However on the other end of the continuum, there exits the purest form of netvertising, the straight forward ad for legal services.

The problem with netvertising is that as one moves along the continuum, adding things to web sites and home pages such as a lawyer or firm's name, specialties and inducements to the reader, the sites begin to look more and more like the legal advertising with which people are already familiar. According to Zauderer v. Office of Disciplinary Counsel,[25] legal solicitation for profit which includes free beneficial information is advertising.[26] Under the Zauderer reasoning, informative web sites which contain any kind of solicitation are advertising.

Does the web site become advertising based on the information included on the lawyer's home page? For instance, if the attorney was merely attempting to provide free legal information, and did not list his or her name or even the firm's name, would it be advertising? By adding the firm name, real address, and e-mail address, does the "free information" turn into legal advertising? The courts have not yet addressed these issues.

The courts have addressed this issue, however, in relation to other forms of "free" information lawyers have dispersed. For example, the United States District Court for the Eastern District of Texas found that one lawyer's advertisement was a form of noncommercial speech and could not be regulated.[27]

In that case, a lawyer had placed an advertisement in a newspaper discussing the current system of electing state judges. He proposed a new rule regarding such elections. The court found that this advertisement did not propose a commercial transaction.[28] The Chief Disciplinary Counsel for the Texas State Bar had previously found that it was commercial speech, and, therefore, could be regulated because the advertisement was published with the hopes that subscribers of the newspaper would read it and hire the attorney.[29] The attorney admitted that he hoped to generate business by publishing it, yet the court found that the advertisement itself could not be said to propose a commercial transaction.[30] The same could be said for attorneys who provide free information on the Internet. Their main purpose may be noncommercial, but they may have the hopes of obtaining clients also.

Is it the desire to make money which turns noncommercial speech into regulatable commercial speech? In Texans Against Censorship, et al., the court found that it is only when the message conveyed by the communication suggests to the public, or a specific individual, that the lawyer's professional services are available for hire that the communication must meet the ethical rules of the state.[31] It would seem that this statement suggests that any time an attorney includes his firm name or address, that he may be suggesting that he is available for hire. How can attorneys avoid this pitfall? Disclaimers may help, but nothing seems concrete at this point.

Another issue to consider is whether or not the informative part of an attorney's home page, and the section which lists the attorney's e-mail address, guest book, and qualifications may be severable. If so, the first part would be appear to be free from regulation, while the second part may have to adhere to lawyer advertising standards.

The Supreme Court has previously held that where noncommercial and commercial speech are "inextricably intertwined", they will not apply one test to one phrase and one test to another phrase, so they apply the test for fully protected expression.[32] In Texans Against Censorship, et al., the court found that a newsletter an attorney disseminated with information regarding public safety, but with a statement on the back asking the readers to tell their friends who have been injured in accidents to contact the law firm, was not "inextricably intertwined" commercial and noncommercial speech.[33] The court stated that there was nothing to prevent the attorney from distributing the noncommercial information contained in the newsletters separately from the commercial information.[34]

This is not so easy on a home page. What if an attorney were to establish two separate home pages, one with general legal information without their name, etc., and one which gave information publicizing the law firm, listing fees, etc. If the two pages linked together, it could be said that the line between the two forms of speech was blurred and could be misleading to the public.

An example of an attorney's web site which appears to be a non-commercial, ethical use of the Internet is attorney Jeffrey R. Kuester's home page. This page is designed to provide research sources for technology lawyers, law students, businesses, etc. He has provided various hyperlinks to places on the Internet where legal information can be obtained. There is no "blatant" advertising of his expertise, his services, fees, etc.

Could this be deemed advertising, however? Some courts may determine that it is because laypersons have access to this information. Because the layperson may have read the information Mr. Kuester has made available, he or she may consider Mr. Kuester an expert in this area of the law and, because of his access to this information, may contact him for legal representation. For another example, see http://www.digimark.net/radiation.law/ and http://www.benedict.com/fund.htm#fund. The "radiation" page is slightly more advertising oriented in that it does state that the attorney is available to represent people in areas in which he is experienced and tells people how to contact him. The second URL is to a site with information about copyright law. It has only a link to the developer's resume (http://www.benedict.com/resume.htm#resume). It is not clear even from the resume whether he is seeking clients. There is also a similar type of site for patent law (http://www.ladas.com/index.html).

On the other hand the following sites clearly qualify as advertising. The site of the Goodman law firm includes fee information and has an internal link from the beginning of the document to the paragraph that explains how to engage the services of the law firm. The site of Carol McGowan gives a list of six reasons people need a lawyer, followed by her name, address, and phone number. Also see the section of the Seamless web site which explains their offering and then invites you to form a business relationship with the firm.

In conclusion, it appears that a home page that only provides accurate general information about the law is not advertising or commercial speech, and is thus not subject to regulation. However, if the general information is followed by an invitation to employ the attorney, the entire page will be considered an advertisement and will be thus subject to regulation. An attorney may also be subject to discipline for fraudulent behavior if he initially hides his identity as the author of the page and then uses it to gain new clients.