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Untangling the Wicked Web: The Marketing of Legal Services on the Internet and the Model Rules
Georgetown Journal of Legal Ethics, The, Summer 2004 by Hurld, Christopher
INTRODUCTION
Over the past decade, the rapid growth of the Internet has given lawyers the opportunity to market their legal services on a previously unheard of scale. However, the Model Rules of Professional Conduct ("Model Rules") have not kept pace with issues created by the Internet explosion and Internet-based lawyer advertising. Although Ethics 2000 (formed by the American Bar Association in 1997 to review the Model Rules) made some Internet related changes to Rules 7.1, 7.2, and 7.3, these changes were limited. Regulation of lawyers on the Internet seems to require a combination of traditional ethical limits on advertising that have been applied to other media and a recognition that some aspects of the Internet require a new way of thinking about lawyer advertisements.
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Part I of this Note begins by examining the ethical concerns that have led to the regulation of lawyer advertisement and the history of that regulation. Part II briefly describes the explosive growth of the Internet in an effort to demonstrate the enormity of the potential problems that legal marketing on the Internet could cause. Part III describes specific aspects of the Internet that present challenges to the traditional regulation of advertising and solicitation. Part IV discusses the Ethics 2000 changes to the advertising and solicitation rules. Finally, Part V introduces possible changes to the Model Rules that would better address Internet advertising difficulties.
I. ETHICAL CONCERNS OVER LAWYER ADVERTISEMENT AND THE HISTORY OF REGULATION
A. ETHICAL CONCERNS
At the heart of the concern over lawyer advertisement lies the fundamental paradox of the American legal profession. The monopoly of the legal profession is sustained by its definition as a profession as opposed to a business.1 Businesses are endeavors fueled by the quest for pecuniary gain; the legal profession is supposed to be fueled by a desire to serve the public.2 The legal profession originally sought to ensure this distinction by not allowing business oriented practices such as advertising.3 However, in order to serve the public, the members of the profession must be financially sustained by their practice of the law. Advertising, although seen as a crass "business" practice, is needed to help ensure the continued existence of the legal profession.
There are other ethical concerns regarding the marketing of legal services. For example, there is concern that in-person solicitation of a prospective client may lead to the lawyer overbearing the prospective client's will.4 The two main reasons for this concern are as follows: first, a lawyer is specially trained in the art of advocacy, while the potential client is almost certainly not; second, the prospective client may already feel emotional and overburdened by the circumstances that occasion their possible need for legal advice.5 Another concern regarding the marketing of legal services is that widespread marketing will lead to stirring up of frivolous lawsuits.6 Such behavior was seen as not only unprofessional, but also "indictable at common law."7
B. HISTORY OF REGULATION
The modern regulation of legal services began in 1908 when the American Bar Association ("ABA") adopted the first national standards governing the behavior of lawyers, the Canons of Professional Ethics ("1908 Canons").* The 1908 Canons banned both direct and indirect advertising, as well as solicitation.9 State supreme courts generally accepted these bans, and for seventy years the 1908 Canons stood as the controlling law regarding the marketing of legal services.10 In the 1977 case of Bates v. State Bar of Arizona, the Supreme Court held that outright bans on lawyer advertising violated the free commercial speech doctrine of the First Amendment, and were therefore unconstitutional.11 However, the Court also stated that some regulation of the marketing of legal services was not only permissible, but desirable.12 For example, the Court stated that claims regarding the quality of the legal services to be provided might be so immeasurable that they would be inherently misleading.13 The Court also stated that the same concerns "might justify restraint on in-person solicitation."14 However, the Court did not provide any substantial guidance as to specific regulations that would be allowed. It became the responsibility of the ABA to create a new set of standards regarding the advertising of legal services and the solicitation of clients.
New regulations were adopted as part of the amended Model Code of Professional Responsibility ("Model Code") a mere six weeks after the Bates decision.15 Although many of these new regulations are no longer in effect, the ABA retained the provision prohibiting in-person solicitation.16 In 1978, this ban was upheld by the Supreme Court in Ohralik v. Ohio State Bar Ass'n}1 The Court found that the ban would prevent attorneys highly trained in the art of advocacy from taking advantage of emotionally vulnerable prospective clients.18 Thus, one of the main ethical concerns regarding the marketing of legal services could still be protected.
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