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Bibliography: Rules, Opinions, and Articles about Ethical Aspects of Publishing Law Firm Web Sites

Minnesota Rules of Professional Conduct
Additional Minnesota Legal Ethics References
National References
Certain Other State References
For Further Reference

This is not intended to be a comprehensive list of resources available either in print or on the Web. The resources below are illustrative or were selected for their currency, thorough coverage of the subject matter, or focus on Minnesota.

The subject matter is still relatively new for the legal profession. According to Will Hornsby, staff counsel at the American Bar Association who has written several articles about lawyer web sites (including two cited below), in November 1994, only five law firms in the United States published web sites.

In researching the history of writing about legal web sites, one finds that articles mentioning the subject of lawyers' publishing on the Web began to appear in 1995. Since 1995, of course, writing about lawyers and the Web has exploded.

Similarly, writings about lawyers' ethics on the Internet, including but not limited to web site publishing, has, in the last five years, developed into a whole subgenre of legal ethics.

Here is a selection from these materials, along with a selection from the applicable Minnesota Rules of Professional Conduct themselves, that, it is hoped, will be of value to Minnesota lawyers as well as lawyers in other jurisdictions who will come across this material on the Web:

Minnesota Rules of Professional Conduct

  • The first place to start is of course the Minnesota Rules of Professional Conduct. The following sections may be pertinent to your web site:
    • Rule 5.3 Responsibilities Regarding Nonlawyer Assistants
      With respect to a nonlawyer employed or retained by or associated with a lawyer: ...

      (c) A lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer[.]

      Note: As a lawyer, you are responsible for your marketing department, your Information Technology department, your outside web designer, etc. Outside service providers unfamiliar with the legal profession may suggest any number of ideas that involve debatable legal ethics issues without being aware of the issues at all.

    • Rule 5.5 Unauthorized Practice of Law
      A lawyer shall not:

      (a) practice law in a jurisdiction where to do so violates the regulation of the legal profession in that jurisdiction.

    • Rule 7.1 Communications Concerning a Lawyer's Services
      A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it:

      (a) contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading;

      (b) is likely to create an unjustified expectation about results the lawyer can achieve, or states or implies that the lawyer can achieve results by means that violate the Rules of Professional Conduct or other law; or

      (c) compares the lawyer's services with other lawyer's services, unless the comparison can be factually substantiated.

    • Rule 7.2 Advertising and Written Communication
      (a) Subject to the requirements Rule 7.1, a lawyer may advertise services through public media, or through written communication.

      (b) A copy or recording of an advertisement or written communication shall be kept for two years after its last dissemination along with a record of when and where it was used.

      ...

      (d) Any communication made pursuant to this Rule shall include the name of at least one licensed Minnesota lawyer responsible for its content if the legal services advertised are to be performed in whole or in part in Minnesota.

    • Rule 7.4 Communication of Fields of Practice
      (a) A lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law. A lawyer shall not use any false, fraudulent, misleading or deceptive statement, claim or designation in describing the lawyer's or the lawyer's firm's practice or in indicating its nature or limitations.
    Note: Particular circumstances may involve other Rules. Those listed above are generally applicable to publishing on the Web.

    Additional Minnesota Legal Ethics References

  • Lundberg, Charles E., Regulation of Lawyer Advertising, Bench & Bar, February 1995 at 14. When he wrote this article, Lundberg was a member of the Executive Committee of the Lawyers Professional Responsibility Board. Currently he serves as its Chair. Excerpts:
    "It is and has been the board's general policy not to issue formal or informal advisory opinions concerning advertising."

    ...

    "[A]dvertising issues are generally deemed less important from a public protection standpoint than other ethical issues that the [Lawyers] board must address."

    ...

    "Moreover, it has generally been the case that complaints about lawyer advertising come not from consumers or the general public but rather from other lawyers. The board is loath to get involved in commercial wars among competing lawyers."

    "The board is also concerned about potential antitrust and constitutional implications."

    Note: Lundberg's article also summarized fact patterns that had produced twenty private admonitions about advertising practices "over the past few years."

  • Hoover, Michael J., Marketing: Opportunities and Ethical Pitfalls, in Ethical Issues for Attorneys, Minnesota Institute of Legal Education, November 12, 1998 (includes seventeen hypothetical fact situations).

  • Abbott, Gregory, Communicating with Clients Over the Internet, in Ethics and Technology, Minnesota State Bar Association Continuing Legal Education, October, 1998.

    This article includes a section on state bar regulation of web pages and multistate practice. From the online version of a similar presentation from November, 1997,Communicating with Clients Over the Internet: Practical and Ethical Concerns, Abbott links to certain other law-related web sites he believed presented legal ethics issues.

  • Clark, Jill, Ethical Use of Internet and Email in Ethics and Technology, Minnesota State Bar Association Continuing Legal Education, November, 1997.

  • Hoover, Michael J., Attorney Advertising in Minnesota - Expanded Horizons for the 80's, Hennepin Lawyer, September-October 1980 at 6.

    This article contains an interpretation of the then newly enacted disciplinary rules on advertising and solicitation written in Hoover's capacity as the then Director of Lawyers Professional Responsibility in Minnesota. Excerpts:

    "[T]he Minnesota approach to advertising will continue to be more liberal than the constitutional minimum, absolutely precluding only false, fraudulent, deceptive, or misleading statements or claims. ... The refusal to adopt specific regulations concerning specific media is sensible[.] ... [I]f a goal of attorney advertising is the dissemination of accurate information, attorneys should be permitted to utilize any media. ... The Court has rejected detailed and restrictive regulatory approaches."

  • While not directly on point, the MSBA Pro Se Task Force, after studying, among other things "broader ... issues that impact upon the legal profession's ability to fairly and effectively deliver legal services to those who need them the most", recommended that the bar and bench collaboratively "[e]xplore the use of the Internet and other computer technology to facilitate the public's access to the court system and legal representation options. See Reports to the 1998 General Assembly, Bench & Bar, May/June 1998 at 21, 23. The Pro Se Task Force Report was approved in June, 1998 as originally published. See Bench & Bar, September 1998 at 17.

    National References

  • Hornsby, William E., Jr., A Re-Examination of the ABA Model Rules of Professional Conduct Pertaining to Client Development in Light of Emerging Technologies -- A White Paper Presented for the Purpose of Discussion By the American Bar Association Commission on Advertising (July 1998).
    If you do not read anything else on this list, read this report.

    It discusses issues pragmatically. Unlike some literature, it candidly acknowledges weaknesses in current ethical pronouncements, highlights respects in which they may unconstitutionally burden lawyer communications, and proposes specific revisions. The White Paper delineates commercial from non-commercial speech and recognizes that lawyers' noncommercial speech cannot be regulated by professional ethics restrictions.

    Interesting too is the candid acknowledgement of twin, sometimes competing goals: preservation of the lawyers' professional monopoly and consumer protection. Select excerpts:

    "[T]he preservation of the paradigm of law as a profession, and the continuation of the legitimacy for the monopoly ... supports the tendency to use the ethics rules to restrict the endeavors inherent in marketing legal services. ... This orientation creates the odd circumstance where the legal profession professes its dedication to public service, yet employs ethics rules that limit an individual's accessibility to legal services."

    ...

    "The use of the Internet by lawyers has given rise to ethics opinions and case law that are illogical and not consistent with its nature and operations."

    ...

    "[A] question that remains to be answered is whether, or to what extent, a state may deem something to be false or misleading. For example, some states prohibit testimonials in lawyer advertising, declaring them to be false or misleading. ... But are prohibitions against testimonials or endorsements constitutional merely because the state defines them to be false or misleading?"

    ...

    "[Advertising] [t]erms that violate Model Rules 7.1(b), by creating unjustified expectations, and (c), by providing unsubstantiated comparisons, are common in all types of client development literature. In fact, they are extremely common in Web sites for large law firms focused on attracting corporate clients."

  • Hornsby, William E., Jr., In Search of the Ethical Compass for Advertising in an Online World, Law Practice Management (October 1998) at 49-52.

    If you do not have time to read the full ABA Commission on Advertising White Paper, listed above, this abbreviated print only version conveys the essence of the much longer original document.

    See also Pritchard, LaVern A., E-mail to William E. Hornsby, commenting on certain provisions of "In Search of the Ethical Compass for Advertising in an Online World" and the ABA Commission on Advertising White Paper, October 9, 1998 (also distributed via listserver to MSBA Internet Law Committee members).

  • American Bar Association Commission on Advertising, Aspirational Goals for Lawyer Advertising (adopted by ABA House of Delegates August 1988). Excerpt:
    "Under present case law, the matter of dignity is widely believed to be so subjective as to be beyond the scope of constitutionally permitted regulation. Nevertheless, it seems entirely proper for the organized bar to suggest non binding aspirational goals urging lawyers who wish to do so in a dignified manner."

  • Internet Legal Services, LegalEthics.Com , a widely mentioned resource for legal ethics information.

  • Computer Law Section of the State Bar of Georgia, NetEthics, a listing of resources on the Web concerning lawyers' use of the Web.

  • Helbling, Christian J., Internet Advertising by Lawyers: An Analysis of the Salt in the Sea of Cyberspace, 2 W. Va. J. L. & Tech. 1 (Feb. 14, 1998).

  • Krakaur, Peter, Internet Advertising: States of Disarray? Are Uniform Rules a More Practical Solution?, New York Law Journal, September 15, 1997. Excerpt:
    "On the Internet.... the various state [legal ethics] rules actually generate, not eliminate, misleading information."

    ...

    "[T]he contrasting approaches [of the various state ethics schemes] can lead to more, not less, consumer confusion."

  • Certain Other State References

  • Wisconsin State Bar Professional Ethics Committee, Venturing Out Onto the World Wide Web: Ethics Implications for Lawyers, 72 Wisconsin Lawyer, No. 2 (February 1999) at 10. Excerpts:
    "This is an emerging area, and national and state bars are only starting to deal with the ethics problems that the Internet presents to lawyers."

    ...

    "The use of a Web page by lawyers as the newest tool for advertising and client contact has excited many professionals and opened the door to wide exposure for many lawyers. ... If the lawyer uses the same precautions that he or she uses when advertising for services in the printed media or by direct mail solicitation, the lawyer should not run afoul of the [Wisconsin] Supreme Court rules."

    (If you have fifteen and a half minutes, you can listen to this article at the Wisbar web site.)

  • Illinois State Bar Association Advisory Opinion on Professional Conduct Opinion No. 96-10: Electronic communications; confidentiality of client information; advertising and solicitation (May 16, 1997). Excerpt:
    "[T]he Committee views an Internet home page as the electronic equivalent of a telephone directory "yellow pages" entry and other material included in the web site to be the functional equivalent of the firm brochures and similar materials that lawyers commonly prepare for clients and prospective clients. An Internet user who has gained access to a lawyer's home page, like a yellow pages user, has chosen to view the lawyer's message from all the messages available in that medium."

    For Further Reference Concerning Lawyers, Advertising, and Legal Ethics

  • Hazard, Geoffrey C., Jr. & Hodes, W. William, The Law of Lawyering - A Handbook on the Model Rules of Professional Conduct, 2d ed., Aspen Law & Business (loose-leaf).

  • Center for Professional Responsibility, American Bar Association, Annotated Model Rules of Professional Conduct, Third Edition, American Bar Association 1996.

  • Haserot, Phyllis Weiss, The Rainmaking Machine - Marketing Planning, Strategies, and Management for Law Firms, West Group (loose-leaf).

*****

This bibliography was prepared by LaVern A. Pritchard for the legal ethics seminar entitled: Ethics and Technology in Real Estate Practice sponsored by Minnesota State Bar Association Continuing Legal Education in Minneapolis, Minnesota on June 8, 1999.

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