ETHICS

Internet use raises ethics questions

by DAVID M.M. BELL

Many California attorneys are uncertain whether holding out their professional availability or direct advertising activities on the Internet are currently regulated by California rule or statute. Although no regulation in California explicitly speaks to attorney advertisement and solicitation on the Internet, all forms of advertising by California attorneys are broadly governed by California Rule of Professional Conduct 1-400 (Advertising and Solicitation), and Business & Professions Code §6157 et seq. These authorities do reach attorney advertising on the Internet.

The predominant thrust of these regulations is to prevent attorneys from communicating, advertising or soliciting in a manner which is false, deceptive or misleading to the public.

In particular, Rule 1-400 makes clear that messages concerning the availability for employment of an attorney or law firm which uses the name of the lawyer or law firm, regardless of medium, are subject to the rule's prohibitions.

Business & Professions Code §§6157 and 6158 expressly extend the duty to refrain from false, deceptive or misleading advertising to advertising by "electronic media," which is defined to include "computer networks."

Attorneys who are advertising their availability for professional employment on the Internet should consult these regulations. In my opinion, this would include any attorney or law firm who creates a "home page" or "web site" on the World Wide Web, the global network or interconnected computers.

Web sites are files containing information which consumers can access and typically contain not only the lawyer's name, but also a description of the lawyer, the area of practice and other information the lawyer deems relevant to a consumer.

The web site may take the form of text, but may also involve graphics, photographs, audio and full motion video components. In this respect, the Internet web site is similar to more traditional public advertisements such as a newspaper advertisement or a television or radio spot.

In any of these situations, the lawyer has placed in the public view a message about his or her availability to render professional services.

It is clear that attorney advertising regulations will need to be reviewed and amended in the future to keep up with rapid advances in telecommunications. Indeed, substantial portions of current Rule 1-400 were drafted before the Internet was even conceived, let alone created.

As such, not all Internet advertising issues are easily addressed or clearly answered under Rule 1-400. The State Bar currently is looking at this issue. However, it is important for California attorneys to realize that their holding out or advertising on the Internet is not unregulated and that they should familiarize themselves with the authorities discussed above.

Attorneys with advertising questions are encouraged to call the ethics hotline toll-free at 1/800-2-ETHICS.

In addition, the issue of ethics on the Internet, including attorney advertising on the Internet, will be the subject of a panel discussion at the State Bar's Second Annual Statewide Ethics Symposium May 11 in San Francisco. Persons interested in attending or seeking further information about the symposium should call Lauren McCurdy at 415/241-2107.

David M.M. Bell is director of professional competence, planning and development for the State Bar of California.