July 11, 1996
A lawyer may post information about available legal services on the Internet which may be accessed by users of the technology as long as ethics rules governing the content of the posted information are observed.
A lawyer may solicit legal business through an electronic mail communication directed to a specific addressee or group of addressees by following the same ethics rules applicable to general and direct mail solicitation.
A lawyer may not solicit legal business during an interactive electronic communication unless ethics rules governing in-person solicitation are followed.
References: MRPC 7.1, 7.2(a), 7.3; Shapero v Kentucky Bar Ass'n, 486 US 466 (1988).
The Committee has been asked whether lawyer advertising on the Internet, through E-Mail or Home Pages, constitutes "direct mail" contact which is permitted under MRPC 7.3 or whether such contact constitutes impermissible contact which is akin to the in-person and telephone contact prohibited by MRPC 7.3.
MRPC 7.3(a) sets forth those attorney contacts which are permissible and impermissible under the rules. MRPC 7.3(a) states:
"(a) A lawyer shall not solicit professional employment from a prospective client with whom the lawyer has no family or prior professional relationship when a significant motive for the lawyers doing so is the lawyers pecuniary gain. The term solicit includes contact in person, by telephone or telegraph, by letter or other writing, or by other communication directed to a specific recipient, but does not include letters addressed or advertising circulars distributed generally to persons not known to need legal services of the kind provided by the lawyer in a particular matter, but who are so situated that they might in general find such services useful, nor does the term solicit include sending truthful and nondeceptive letters to potential clients known to face particular legal problems as elucidated in Shapero v Kentucky Bar Ass'n, 486 US 466; 108 S Ct 1916; 100 L Ed 2d 475 (1988)." Emphasis added.
MRPC 7.3(b) further restricts a lawyer's conduct with prospective clients that are permissible under MRPC 7.3(a) in that it provides:
"(b) A lawyer shall not solicit professional employment from a prospective client by written or recorded communication or by in-person or telephone contact even when not otherwise prohibited by paragraph (a), if:
"(1) the prospective client has made known to the lawyer a desire not to be solicited by the lawyer; or
"(2) the solicitation involves coercion, duress or harassment."
In evaluating the inquiry, an understanding of the three forms of computer advertising referred to by the inquirer is important. Internet communications may be posted, e.g., on Home Pages, in libraries, or in so-called "chat rooms," to be accessed by Internet users. Internet communications may also be initiated, so that communications are directed to a specific electronic mail "address" or to multiple electronic mail addresses.
Posted information is in the nature of general material, non-targeted, and is seen or used when a user gains access to the venue upon which the information is posted. Since the user initiates the contact with the posted information, MRPC 7.3 is not triggered. A lawyer posting information on Internet must comply with MRPC 7.1 regarding the content of the information posted, and must keep a copy pursuant to MRPC 7.2.
An article which is helpful in evaluating this issue was published in the ABA Lawyers Manual on Professional Conduct, entitled "How Do Advertising Rules Apply to Lawyer's on the 'Net'?" At page 42 of that opinion, the writer notes:
"A lawyer's Web site generally would not appear to involve 'in-person' or 'live telephone contact' so as to fall within a prohibition of Rule 7.3(a) although a visit to the site involves use of telephone lines, the contact is not 'live' so as to be a prohibited contact. Moreover, the contact does not involve an uninvited solicitation, but is more akin to a client's telephoning the firm or walking into the office and asking for information."
In contrast with posting is the sending of an electronic mail communication to a specific addressee or group of addressees. Sending a form communication on Internet is akin to sending postcards through the US Mail or facsimile transmissions. The communication is not as private as sending a sealed letter, and there is an expectation, but no guarantee, that the communication has been received by the intended recipient. MRPC 7.3 applies to such communications about lawyer services to the same extent as the rule applies to communications made through the Postal Service. The fact that the communication is made through telephone lines rather than by motor vehicle is not determinative. Shapero v Kentucky Bar Ass'n, 486 US 466; 108 S Ct 1916; 100 L Ed 2d 457 (1988), appears to permit such communications. Again, the content of the communications must comply with MRPC 7.1, and copies must be kept pursuant to MRPC 7.2.
A different situation arises if a lawyer is participating in interactive communication on the Internet, carrying on an immediate electronic conversation. If the communication was initiated by the lawyer without invitation, such "real time" communications about the lawyer's services would be analogous to direct solicitation, outside the activity permitted by MRPC 7.3.
In conclusion, all forms of communications about lawyer services are governed by ethics rules, regardless of whether they are in person, on paper, billboard, telephone, fax, computer or otherwise. The important considerations under MRPC 7.3 are whether the contact is initiated by the lawyer or the prospective client, whether the offer of legal services is for pecuniary gain of the lawyer, whether there has been a prior professional relationship, and whether the prospective client is not known to need legal services of the kind offered but is generally situated to find the offered legal services useful.