An article and link to the proposed amendment to emphasize that communication about a case is off limits whether on the Internet or not is here. Trial lawyers should consider asking for an instruction like this no matter where the venue.
The article with links to the proposal are here. To avoid getting any Kentucky readers in trouble, please don’t blog about this! 
Lawyers who participate in Internet discussion groups should avoid including any confidential information that could be associated with a particular case or controversy. Postings that give identifying details about cases can result in problems such as waiver of work product protection or inadvertent communications with judges involved on a case. Los Angeles Cty. Bar. Ass’n. Professional Resp. and Ethics Comm. Formal Op. 514 (Aug 19, 2005).
New Mexico Opinion 2001-1 addresses the application of Rules of Professional Conduct to Lawyer’s Use of
Listserve-type Message Boards and Communications.
It is not a violation of the Revised Rules of Professional Conduct for a lawyer to respond to inquiries posted on an Internet message board provided the lawyer clarifies the nature of the lawyer’s relationship with the person or company making the inquiry and the limits of the information that the lawyer is providing. 2000 Formal Ethics Opinion 3 (July 21, 2000).
A law firm should maintain a copy of its website for at least one year, but need not file a copy with the Departmental Disciplinary Committee. Assn’of the Bar of the City of New York Opinion 1998-2 (December 21, 1998). A law firm that establishes a discussion area on its website should exercise caution and vigilance to avoid the establishment of an attorney-client relationship and impermissible advertising or solicitation. A law firm may not pay a fee to an Internet service provider calculated by reference to fees earned by the law firm from the provision of on-line services. A law firm may not post a form for a new customer to request a trademark or copyright search, but may do so for existing clients. A law firm need not encrypt all e-mail communications containing confidential client information, but should advise its clients and prospective clients communicating with the firm by e-mail that security of communications over the Internet is not as secure as other forms of communications
Vermont advertising rules apply to Web sites, but the opinion may change with push technology where lawyers can direct information to subscribers. Opinion 97-05 This could raise solicitation and direct mail issues.Internet “home page” is not “directed to a specific recipient” and is similar to a phone book’s “yellow pages.” Importantly, the Vermont Committee stated specifically that it did NOT address the use of push technology, chat rooms, news groups, discussion groups, or other “potentially interactive means of communicating.”
Philadelpiha Bar Association opinion 98-6 (March 1998), discusses ethical issues associated with lawyer discussion group and chat use.
A posting on bulletin board is violation of Tennessee DR 1-102(A)(1), (5),(6), and DR 2-103. Must include “This Is An Advertisement” disclaimer. Description as “Immigration Attorneys” presented the attorneys as specialists without the requisite disclaimer. Additional violation for failure to sent a copy to Board 3 days prior to publication.
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The following are excerpts of a judgment in which an attorney licensed to practice in Tennessee was disbarred. Although the judgment addressed both Internet and non-Internet related matters, the excerpts primarily address Internet related matters.
IN DISCIPLINARY DISTRICT
OF THE BOARD OF PROFESSIONAL RESPONSIBILITY
OF THE
SUPREME COURT OF TENNESSEE In Re: Laurence A. Canter
An Attorney Licensed to
Practice Law in Tennessee
(Out of State Practice) Docket Nos.
95-831-O-H
96-868-O-H
96-908-O-H
96-910-O-H
JUDGMENT OF THE HEARING COMMITTEE
This cause was heard by the Hearing Committee of the Board of Professional Responsibility of the Supreme Court of Tennessee on January 24, 1997, pursuant to Rule 9, Rules of the Supreme Court. The matter was taken under advisement pending the submission of proposed findings of fact and conclusions of law which were filed on February 6, 1997. After due consideration of the exhibits and testimony, the pleadings, argument of counsel and the record as a whole, this Hearing Committee makes the following findings of fact and conclusions of law and submits its judgment in this cause:
¶2 The Internet Petition, Docket No. 95-831-O-H, was filed on June 18, 1995. …
…
¶¶ 36-39 [Noting certain ethical violations in the non-Internet matters, including knowing conversion of client funds, the Committee noted that disbarment was appropriate discipline (Citing ABA Standards for Imposing Lawyer Sanctions, No. 5.11).]
DOCKET No. 95-831-O-H
THE INTERNET MATTER
¶40 Respondent filed an answer relative to the petition designated as Docket No. 95-831-O-H which alleges that Respondent violated the Code of Professional Responsibility relative to an advertisement on the Internet.
¶41 Disciplinary Counsel filed a Request For Admissions that the book, How To Make A Fortune On the Information Highway, was a book written by Respondent and that the statements contained therein are true to Respondents belief. Respondent did not respond to this request, therefore, the book has been deemed so admitted, pursuant to Rule 36, Tennessee Rules of Civil Procedure.
¶42 Disciplinary Counsel on July 23, 1996, propounded interrogatories on the Respondent. Respondent has filed no answer to said interrogatories.
¶43 Respondent did not make an appearance at the hearing concerning Docket No. 95-831-O-H nor has Respondent offered any proof thereto.
¶44 The hearing panel on January 24, 1997, heard the Internet Matter separately from the Non-Internet cases. The hearing panel considered the allegations relative to the Internet separately from the other allegations relative to Respondent.
¶45 At the hearing on January 24, 1997, relative to the Internet, Disciplinary Counsel offered Gregory H. Siskin (sic)1 an expert relative to lawyer advertising on the Internet. Mr. Siskin is a Nashville attorney whose legal practice focuses on Immigration Law and who utilizes the Internet. Mr. Siskin also saw the advertising that Respondent made on the Internet. The hearing panel found Mr. Siskin to be qualified as an expert. It was Mr. Siskin’s expert opinion that the advertising by Respondent on the Internet violated the standards of conduct for use of the Internet as well as Tennessee’s Code of Professional Responsibility.
¶46 On or about April 13, 1994, Respondent engaged in placing an advertisement that appeared on more than 5,000 Internet groups and thousands of E-Mail lists. The posting was unsolicited.
¶47 The posting read in totality:
Green Card Lottery 1994 May Be The Last One! THE DEADLINE HAS BEEN ANNOUNCED.
“The Green Card Lottery is a completely legal program giving away a certain allotment of Green Cards to persons born in certain countries. The lottery program was scheduled to continue on a permanent basis. However, recently, Senator Alan J. Simpson introduced a bill into the U.S. Congress which could end any future lotteries. THE 1994 LOTTERY IS SCHEDULED TO TAKE PLACE SOON, BUT IT MAY BE THE VERY LAST ONE.
PERSONS BORN IN MOST COUNTRIES QUALIFY, MANY FOR FIRST TIME.
The only countries NOT qualifying are: Mexico, India, P.R. China; Taiwan, Philippines, North Korea, Canada, United Kingdom (except Northern Ireland), Jamaica, Dominican Republic, El Salvador, and Vietnam.
Lottery registration will place soon. 55,000 Green Cards will be given to those who register correctly. NO JOB IS REQUIRED.
THERE IS A STRICT JUNE DEADLINE. THE TIME TO START IS NOW!!
For the next FREE, information via Email, send request to cslaw@indirect.com******
Canter & Siegel, Immigration Attorneys 3333 E Camelback Road, Ste 250, Phoenix AZ 85019 USA cslaw@indirect.com telephone (602) 661-3911 Fax (602) 451-7617″
¶48 The posting appeared on computer screen unsolicited, and each reader was required to read at least the introduction of each message. The posting appeared on Bulletin Boards having no relevance to immigration law. It was, therefore, an improper intrusion into the privacy of the recipient, in violation of DR 1-102(A)(1), (5) and (6), and DR 2-103.
¶49 Internet users/readers generally pay by the minute for access to the various Bulletin Boards. They, therefore, had to pay for the time they so viewed it. The recommendation for legal retention and employment was, therefore, not only unsolicited, but also at the recipient’s expense. This was violation of DR I-102(A)(5) and (6), and DR 2-103(A).
¶50 At the time of this advertisement, DR 2-1O1(N) required the words: “This Is An Advertisement” to be included on communications soliciting professional employment. The posting placed by Respondent did not contain this language and thereby violated DR 2-1O1(N).
¶51 The Respondent’s firm, particularly describing itself as “Immigration Attorneys”, presented itself as a specialist. However, the posting did not contain the disclaimer required by DR 2-1O1(C).
¶52 Respondent did not deliver to the Board of Professional Responsibility a copy of this posting within three days of its distribution as required by DR2-1O1(F).
DEGREE OF DISCIPLINE TO BE IMPOSED
RELATIVE TO THE INTERNET MATTER
.
¶53 ABA Standards For Imposing Sanctions, 7.l, 7.2, 7.3, and 7.4 provide the standards for imposing discipline in lawyer advertising cases. Standard 7.3 states that a reprimand (censure), “is generally appropriate when a lawyer negligently engages in conduct that is a violation of a duty owed to the profession and causes injury or potential injury to a client, the public, or the legal system.” Standard 7.2 states that a suspension is appropriate if the conduct is “knowingly.”
¶54 This posting caused injury to the public by intruding improperly into the privacy of computer users by compelling recipients to pay for an advertisement they did not want nor solicit. The advertisement has further damaged the reputation of the legal profession and thereby the legal system.
¶55 The following are aggravating factors to be utilized in assessing discipline in the Internet case: (ABA Standards For Imposing Sanctions. 9.2).
prior disciplinary offenses,
dishonest or selfish motive
bad faith obstruction of the disciplinary proceedings, and
refusal to acknowledge wrongful nature of misconduct.
¶56 There are no mitigating factors appropriate to the Internet case.
JUDGMENT OF THE HEARING COMMITTEE
Based upon the pleadings, the evidence and testimony, the argument of counsel and the entire record in this cause,
It is therefore ORDERED, ADJUDGED and DECREED:
…
2. That the Respondent, Laurence A. Canter, be suspended from the practice of law for one (1) year for those violations of the Disciplinary Rules set forth above in reference to Docket #95-831-O-H (the “Internet matter”).
3. That the Respondent, Laurence A., Canter, be disbarred from the practice of law for those violations of the Disciplinary Rules set forth in reference to [specific non-Internet matters].
4. That these disciplines run concurrently.
This the 25th day of February, 1997.
Note 1: The judgment erroneously refers to Gregory Siskind as “Gregory Siskin.”
Lawyer web sites are equivalent to telephone directory yellow pages. ISBA Opinion 96-10. (May 16, 1997). Participation in bulletin board, chat group, or similar service may implicate solicitation rules. If lawyer seeks to initiate an unrequested contact with a specific person as a result of participation in a chat room or bulletin board, then lawyer subject to solicitation rules and messages must be labeled as advertising materials.
Tennessee #95-A-570 (May 17, 1995): Newsgroup postings are a form of improper solicitation similar to unsolicited phone contacts. Web sites must contain certification disclaimer if an area of practice is listed (DR 2-101(C)) and it must contain statement “This Is An Advertisement” (2-101(N). The lawyer must furnish a copy to the Board of Professional Responsibility 3 days before it is placed on the Web (2-101(F)).
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