Ethics Opinions

Opinion No. 98-2

Summary: The Rules of Professional Conduct permit a bar association to establish an Internet site on the World Wide Web that contains a publicly-accessible membership directory and "hot links" to the home pages of individual members. A bar directory, whether written or computerized, does not constitute a "lawyer referral service" for purposes of Rule 7.3(e) of the Massachusetts Rules of Professional Conduct. The bar association also is not obligated to monitor the content of the individual home pages to which it provides Internet links in order to ensure that they comply with applicable ethical rules. Informational home pages maintained by participating attorneys and law firms, in typical circumstances, need not be labeled "advertising" under Rule 7.3(c), but the content displayed therein must be retained for at least two years under Rule 7.2(b). Conversely, home pages that record the identity of visitors for the purpose of issuing further targeted solicitations constitute the "solicitation of professional employment" for purposes of Rule 7.3, and must be both labeled and retained as required by subsection (c) of that rule. Finally, home pages that permit concurrent or "real time" interaction between prospective clients and attorney or law firm representatives are subject to the solicitation regulations of Rule 7.3.
Facts: A bar association (the "Association") intends to establish a web site on the Internet that can be accessed by the general public through the World Wide Web. The web site will serve as a vehicle for disseminating information concerning Association events, activities and news. The Association also intends to incorporate in its web site a membership directory that would provide free legal and referral information to inquiring parties. This web-based bar directory does not refer visitors to a particular attorney, but rather provides inquirers with information that they can use in making their own selection from among the Association's membership. Visitors to the Association web site can search the online bar directory by name, location or practice area. Listings in the directory typically consist of basic professional and biographical information, as well as "hot-links" to the home pages of individual members maintained by the members themselves. The Association does not monitor the home pages of its participating members in order to ensure that they conform with applicable ethical guidelines.

Discussion: The application of the Rules of Professional Conduct to legal activities on the Internet presents a challenging, but generally not insurmountable task. One such activity, the creation of publicly-accessible, computerized bar directories, raises varied and seemingly unique ethical questions. Most of these questions can be resolved satisfactorily, however, by making reference to the general text of the Rules and by analogizing to traditional activities and safeguards.

Rule 7.1 of the Massachusetts Rules of Professional Conduct contains the general prohibition that "[a] lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services." While not explicitly addressed in the Rules of Professional Conduct, the word "communication" as used in Rule 7.1 is sufficiently broad to encompass bar directories. Lawyers traditionally have been permitted to disseminate basic biographical and professional data by way of written bar directories so long as their listings do not tend to misinform. A computerized bar directory simply is another means of storing and conveying the same information. Thus, subject to other provisions of the Rules (including Rule 7.4, addressing the circumstances in which an attorney may hold him or herself out as a "specialist" or "certified" in a particular area of the law), it is ethically permissible for lawyers to participate in a computerized bar directory maintained by the Association so long as the listings contained therein are not "false or misleading."

The fact that members of the public may be expected to access the online bar directory located at the Association's web site for the purpose of selecting legal counsel does not render that directory a "lawyer referral service" for purposes of Rule 7.3(e).1 The phrase "lawyer referral service" anticipates that those seeking legal advice or assistance will be directed, at the discretion of the service organization, to a particular participating attorney, or to a small number of participating attorneys based on various factors including area of expertise, location, availability and cost. Conversely, a bar directory, whether written or computerized, simply compiles in one place biographical and other professional information that may be of use to a prospective client in self-selecting counsel based upon the client's perceived needs and preferences. Providing such a compilation to the public does not qualify as a "lawyer referral service" falling within the scope of Rule 7.3(e).

Similarly, typical informational attorney or firm web sites do not constitute the "solicitation of professional employment" to which the requirements of Rule 7.3(c) apply.2 A home page is best analogized in this context to a "Yellow Pages" listing, which traditionally has not been regarded as the "solicitation" of professional employment targeted or "directed to [a] prospective client," and therefore need not be labeled "advertising" under Rule 7.3(c)(1). Because an attorney or law firm Internet web site still makes use of "public media" to "advertise services" per Rule 7.2(a), however, the two-year retention requirements of Rule 7.2(b) are applicable.3
The policy considerations underlying the various restrictions embodied in Rule 7.3 become more pronounced, however, if the Internet addresses of visitors to the site are recorded and utilized for the purpose of further targeted solicitations. In such circumstances, the attorney or firm web site becomes a pro-active marketing tool that falls within the range of activities deemed the "solicitation of professional employment" for purposes of Rule 7.3. All web sites or home pages having this function must be clearly labeled "advertising" (and retained for at least two years) in accordance with the requirements of Rule 7.3(c)(1) and (2).4

Finally, if an attorney or law firm web site incorporates technology that permits concurrent or "real time" interaction between prospective clients and attorney or law firm representatives, such as a visitor "chat room," the direct solicitation prohibitions contained in Rule 7.3(d) must be observed.5 Lawyers may not engage in conduct online that would be ethically impermissible in face-to-face or telephone discussions. Thus, care must be taken during any "real time" Internet communications with a prospective client to ensure that the provision of particularized legal or marketing information takes place only after the receipt by the attorney or law firm of an appropriate, initial inquiry from the prospective client.

It is important to note that the creation of an online bar directory does not obligate the Association to monitor the ethical compliance of individual home pages of member attorneys who participate in the directory any more than the Association would be required to monitor the compliance of firm brochures and letterhead of member attorneys who participate in its written bar directory. Although the Rules of Professional Conduct still govern all such individually-maintained home pages, it is the responsibility of the sponsoring attorney or firm to ensure compliance with applicable ethical rules, not the listing Association.

Nonetheless, given the interstate reach of the World Wide Web, the Committee on Professional Ethics strongly recommends that the Association encourage its members to include complete and up-to-date bar admission in their online directory listings. Absent such information, a person in another state who accesses the Association's Internet-based bar directory may be unintentionally misled as to whether particular listed attorneys are licensed to practice in his or her jurisdiction.

Footnotes

1 Rule 7.3(e) states that,
A lawyer shall not pay any person or organization to solicit professional employment for the lawyer from a prospective client.
However, this rule does not prohibit a lawyer or partner or associate or any other lawyer affiliated with the lawyer or the lawyer's firm from requesting referrals from a lawyer referral service operated, sponsored, or approved by a bar association or from cooperating with any other qualified legal assistance organization. 2 Rule 7.3(c) states that,
A lawyer shall not solicit professional employment for a fee from a prospective client by written communication, audio or video cassette, or other electronic materials, directed to such prospective client unless:
  1. each such communication is clearly labeled "advertising" on its face and on any envelope or container; and
  2. the lawyer retains a copy of such communication for two years.
3 The two-year retention requirement for advertising materials found in Rule 7.2(b) is a new obligation imposed by the new Massachusetts Rules of Professional Conduct, which went into effect on January 1, 1998.

4 The Committee is evenly divided as to whether an attorney or law firm web site that is promoted by means of targeted e-mail solicitations which include a direct link to the site also must be labeled "advertising" under Rule 7.3(c)(1) and, thus, offers no specific guidance on this issue.

5 Rule 7.3(d) states that,

A lawyer shall not solicit professional employment for a fee from a prospective client in person or by personal communication by telephone, electronic device, or otherwise.

Permission to publish granted by the Board of Delegates on May 29, 1998. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official government status.
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