Ethical Considerations of Legal Netvertising

By: Lori Christman, Keith Porterfield, and Brandon Unterreiner

I. Introduction

In Georgia, "a lawyer may advertise services through public media, such as a telephone directory, newspaper or other periodical, radio or television, or through written communication not involving personal contact".[1] This is limited by O.C.G.A. § 10-1-427 which prohibits false or misleading legal advertising in those media.[2] However what about the Internet? How should web sites, home pages, or discussion group contributions on the Internet be classified and regulated? Currently, the Georgia State Bar is considering the adoption of stricter rules on lawyer advertising in an effort to prevent further harm that bad legal adverting inflicts on the legal profession.[3] At this point, the Georgia Bar is working to draw adequate empirical data in order to justify restrictions on commercial speech.[4] While states are taking a renewed interest in the ethics of legal advertising, the issue of where advertising on the Internet, or "Netvertising", fits in needs to be included.

Upon taking a closer look at the ethics of legal Netvertising, it is clear that advertising on the Internet is actually a broad category which contains numerous individual legal and ethical issues. Some examples of these issues are: Is a web site on the Internet actually advertising? Is the informative nature of most web sites considered to be "giving legal advice"? Does the interactive/informative nature of some web sites constitute an attorney/client relationship? Does the interactive nature of many web sites and discussion groups create an implied waiver of confidentiality? Does the world wide audience of the Internet create jurisdictional problems for lawyers with web sites on the Internet? Is a Georgia lawyer who gives information on a web site, that is read in South Carolina by a South Carolina resident, practicing law without a license? Is a lawyer who practices Federal law able to have a web site immune from the problem of the unauthorized practice of law in other states simply because the lawyer practices federal law and not state law? Will communicating on the Internet disqualify a lawyer and/or the lawyer's firm from representation of other potential litigants?

This paper will discuss these questions, consider various judical and legislative efforts to answer them, and propose rules and statutes that might help states better regulate the growing field of netvertising.

II. Constitutional Basis for the Regulation of Legal Advertising a. Historical regulation of legal advertising

Advertising for legal services was rare and generally prohibited until 1977.[5] It was at that time that the United States Supreme Court applied the protection of commerical speech, which it had only recently declared,[6] to the field of legal advertising in Bates v. State Bar of Arizona.[7] Different varieties of speech are afforded different levels of protection. Advertising which is considered political speech may not be regulated.[8] Commercial speech can be regulated and restricted if the speech is either false, misleading or promotes an illegal activity.[9] However, where commercial speech is not false, misleading nor promoting an illegal activity, government restriction is only allowed under "intermediate scrutiny". Government restriction on commercial speech must be narrowly drawn, and further a substantial state interest.[10]

In Bates the Court held that lawyer advertising was a form of commerical speech and thus could not be completely prohibited. Specifically, the Court held that a state could not prohibit an attorney from listing the fees the attorney charged for routine legal services. Of course, like other commercial speech, the Court made it clear that the full protection of the First Amendment was not given to lawyer advertising. For example, the Court stated that advertising which was false, deceptive, or misleading could be prohibited.[11]

However, in a later discussion of Bates, the Court made clear that a state did not have to treat legal advertising exactly as it does other commercial advertisements.[12] The Court noted: "The public's comparative lack of knowledge, the limited ability of the professions to police themselves, and the absence of any standardization in the 'product' renders advertising for professional services especially susceptible to abuses that the States have a legitimate interest in controlling."[13] The Court stated that regulation of legal advertising is allowable where the "form or method of advertising has in fact been deceptive" and that "claims as to quality or in-person solicitation might be so likely to mislead as to warrant restriction."[14]

The Court confronted the issue of in-person solicitation directly in Ohralik v. Ohio State Bar Association.[15] In that case the attorney went to the hospital to see if a recent accident victim would consider employing him as her lawyer in the matter. The prospective client, who had not yet graduated from high school, was in traction as a result of her injuries at the time. The Court stated that "in-person solicitation of professional employment by a lawyer does not stand on a par with truthful advertising about the availability and terms of routine legal services."[16] The Court went on to uphold the attorney's discipline by the state bar for his actions.

Most recently, the Supreme Court, in Florida Bar v. Went for It, has entered a ruling that allows restrictions on direct-mail legal advertising.[17] The Florida Bar had conducted a survey of Florida public views regarding direct-mail solicitation occurring immediately after accidents. The survey revealed that the Florida Public viewed "...direct-mail solicitations in the immediate wake of accidents as an intrusion on privacy.."[18] As a result of this survey, Florida had adopted a rule prohibiting targeted mail solicitation for 30 days after an accident or disaster.[19] The state claimed that the rule advanced the interest of protecting its citizens from an invasion of privacy. The Supreme Court relied on the findings of the survey as providing a substantial state interest which justified the restriction on the attorney's commercial speech.[20]