Footnotes
1. The Rules were adopted by the ABA House of Delegates on August2, 1983. Model Rules of Professional Conduct, American Bar Association Center for Professional Responsibility, 1998, at viii.
2. Elizabeth Wasserman, "Lawyers File Few Objections to Advertising on the 'Net," San Jose Mercury News, July 17, 1995.
3. See, e.g., articles listed at http://www.legalethics.com/, such as Attorney Sites Can Avoid Violations, The Ethical Boundaries of Selling Legal Services in Cyberspace, and How Do Advertising Rules Apply to Lawyer on the 'Net.
4. For simple definitions of the technical terms related to cyberspace, See the web site "Internet 101, Basic Terminology" at http://www2.famvid.com/i101/terms.html.
5. See Louise L. Hill, Lawyer Advertising (1993) and Lawyer Advertising at the Crossroads: Professional Policy Considerations, ABA Commission on Advertising (1995)(HereafterCrossroads Report).
6. Lincoln, by David Herbert Donald, 1996.
7. Canons of Professional Ethics, American Bar Association (1908).See also Lori B. Andrews, Birth of a Salesman: Lawyer Advertising and Solicitation (1980).
8. Id.
9. 433 U.S. 350 (1977)
10. Id.
11. Supra, Andrews, note 7.
12. Id.
13. Ohralik v. Ohio State Bar Association, 436 U.S. 447 (1978).
14. Supra note 1.
15. See Provisions of States Codes of Professional Responsibility Governing Lawyer Advertising and Solicitation, ABA Commission on Advertising (1990, with supplements through 1994).
16. See Florida Rules of Professional Conduct, Chapter 4, Information about Legal Services, effective January 1, 1991.
17. Supra note 5, Crossroads Report.
18. MR 1.6(b)(2): "A lawyer may reveal such information to the extent the lawyer reasonably believes necessary...(2) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client... ."
19. For the relationship between professionalism and business practice within the legal profession, See generally Russell G.Pearce The Professionalism Paradigm Shift: Why DiscardingProfessional Ideology Will Improve the Conduct and Reputation of the Bar 70 NYULR 1229 (1995) and Richard L. Abel, American Lawyers (1989).
20. See Nonlawyer Activity in Law-Related Situations, American Bar Association Commission on Nonlawyer Practice (1995).
21. See MR6.1: "A lawyer should aspire to render at least (50) hoursof pro bono public legal services per year... ."
22. See MR 8.4.
23. See MR 5.3(c)(1).
24. See MR 8.3.
25. See MR 7.1.
26. See Abel, Supra note 19.
27. Brief of Alabama State Bar Association, Arkansas Bar Association, Atlanta (GA) Bar Association, Brooklyn (NY) Bar Association, The Colorado Bar Association, Dade County (FL) Bar Association, Delaware State Bar Association, Essex County (NJ) Bar Association, State Bar of Georgia, Illinois State Bar Association, The Iowa State Bar Association, Jacksonville (FL)Bar Association, Kansas Bar Association, Kentucky Bar Association, State Bar of Michigan, The Mississippi Bar, Monroe County (NY) Bar Association, State Bar of Montana, Bar Association of Nassau County, N.Y., Inc., New Hampshire State Bar Association, Ohio State Bar Association, South Carolina Bar,Suffolk County (NY) Bar Association, Tennessee Bar Association, State Bar of Texas, Utah State Bar, and West Virginia State Bar,as Amici Curiae in Support of the Petitioner, The Florida Bar v.G. Stewart McHenry; Went For It, Inc.; and John T. Blakely, No.94-226, filed Nov. 7, 1994.
28. Id. at 4.
29. 436 U.S. 447 (1978).
30. 436 U.S. 412 (1978).
31. 455 U.S. 191 (1982).
32. Id. at 206, fn 20.
33. 471 U.S. 626 (1985).
34. Id. at 670.
35. Id. at 653.
36. 486 U.S. 466 (1988).
37. Id. at 467.
38. Id. at 473.
39. 496 U.S. 91 (1990).
40. __ U.S. __ (1994).
41. Id. at
42. cite
43. 447 U.S. 557 (1980).
44. Id. at 566
45. Board of Trustees of State University of New York v. Fox, 492U.S. 469 (1989)
46. See, e.g., Stratton Oakmont, Inc. v. Prodigy Services Co., 1995WL 323710 (N.Y.Sup.Ct., May 24, 1995) finding an on-line service provider to be a publisher; Iowa Supreme Court Board of Professional Ethics and Conduct Ethics Opinion 96-14 (12-12-96) opining that law firms have a Web site for Iowa residence which complies with Iowa ethics rules and another Web site that complies with other state rules.
47. 929 F.Supp. 824 (E.D. Pa. 1996)
48. 948 F.Supp. 436 (E.D. Pa.1996)
49. Supra note 47 at 844.
50. Id. at 842.
51. Id. at 831.
52. Id. at 837.
53. Id. at 838.
54. Id. at 832.
55. ACLU v. Reno, __ U.S.__(1997).
56. Id.
57. Id.
58. Id..
59. There are also two letter country code top level domains used for sites outside of the U.S. and "int" is used for international databases.
60. Supra note 2.
61. Large Law Firm Technology Survey: 1997 Survey Report, ABA LegalTechnology Resource Center, 1997, at page 2.
62. http://www.martindale.com.
63. Some states have begun addressing emerging technologies inefforts to modify their ethics rules. See http://www.tba.org/Committees/Conduct/Rules_html/RULES.html for proposed revisions to the rules in Tennessee and http://www.flabar.org/FLABAR/Information/News/Whatsnew/adrules.html for proposed revisions to the rules in Florida.
64. Supra note 1 at 94.
64a. [Editors Note: LegalEthics.com has a list of ethics opinions dealing with electronic communications.]
65. See Alabama Ethics Opinion RO-96-07, Arizona Opinion No. 97-04, Illinois State Bar Association Opinion 96-10, Michigan Opinion RI-276, North Carolina Proposed RPC 239, Tennessee Ethics Advisory Opinion 95-A-570 and Utah 97-10.
66. Alabama Ethics Opinion RO-96-07.
67. North Carolina Proposed RPC 239 (7-25-96).
68. Michigan Ethics Opinion RI-276 (7-11-96).
69. City of Cincinnati v. Discovery Network, Inc., 113 S.Ct. 1505,1512 (1993).
70. Central Hudson, Supra note 43 at 561.
71. Texas cite
72. Id.
73. Id. at
74. These items are among those deemed not to be solicitation by the rules governing commercial speech in Texas.
75. 487 U.S. 781 (1988)
76. Id.
77. Supra note 70 at
78. MR 8.4(c) at 106.
79. MR 7.1(a) at 93.
80. See generally Supra note 15, Provisions of State Codes of Professional Responsibility Governing Lawyer Adverting and Solicitation. North Dakota Rule 7.1 lists 17 items deemed to befalse or misleading.
81. See e.g. Loretta W. Moore, Lawyer Mediators: Meeting the Ethical Challenges, 30 Fam. L. Q. 679 (1996), at 868, discussing the similarities between the false and misleading standard of Model Rule 7.1 and the standards for mediators to advertise truthfully. The intricacies of Model Rule 7.1(b) and (c) banning unjustified expectations and unsubstantiated comparisons are ignored by the author.
82. Identify some consumer protection statutes here
83. Testimonials are deemed to be misleading in Florida, Louisiana, Mississippi, Nevada, New Mexico and Pennsylvania.
84. A web site consultant firm provides links to the web sites of the top 250 U.S. law firms which have them. To observe the degree of noncompliance with the rules, go to http://www.redstreet.com, link to the firms and observe the number that use misleading words and phrases discussed in this article.
85. See Nassau County (New York) Ethics Opinion 93-10 and Alabama Ethics Opinion 88-56.
86. See Washington Informal Ethics Opinion 91-2.
87. See Virginia Ethics Opinion 1297 and Spencer v. Hon. Justices of Super. Ct. Of PA, 579 F.Supp. 880 (E.D. Pa 1984).
88. Pennsylvania Ethics Opinion 93-183B.
89. See In re Zang, 741 P2d 267 (AZ 1987), where the court deemed advertising false or misleading when a TV commercial showed lawyers staged in a courtroom when no lawyer in the firm had ever tried a case to its conclusion.
90. Supra www.redstreet.com at note 83 for links to the top 250 law firms with web sites or registered domain names.
91. For a list of search engines See, Internet 101 at www2.famvid.com/i101/search.html/i101/search.html.
92. Robert J. Kutak chaired the ABA Commission on Evaluation of Professional Standards from 1977 until his death in 1983. This Commission created the ABA Model Rules of Professional Conduct.
93. Supra note 64. See also, Massachusetts Bar Association Opinion 1997-130, Nebraska Advisory Opinion 95-3, New York County Lawyer's Association Opinion 721, North Dakota Ethics Opinion 97-09, and Vermont Opinion 97-5.
94. Supra note 83.
95. Supra Crossroads Report, note 5. The report states, A"Hortatory measures should be fully implemented as methods of moral suasion used to convince lawyers to communicate their services in ways that enhance the image of the legal profession. These measures should not be critical, but aspirational." at 146-147.
96. MR 8.4(b): It is professional misconduct for a lawyer to commit acriminal act that reflects on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects.
97. MR 7.2(a)
98. MR 7.2(b)
99. MR 7.2(c)
100. MR 7.2 (d)
101. Supra notes 64 and 92.
102. Note that Florida and Texas require lawyers to submit their advertisements for screening prior to or concurrent with the dissemination of the material. For web sites, however, only the home pages must be submitted.
103. Microsoft's Internet Explorer and Netscape's Navigator are the dominate browsers. However, for an extended list of various browsers, See Browser Watch at http://browserwatch.internet.com/browsers/browsers-win.html.
104. Supra notes 43 and 45.
105. To complicate the retention requirements, many of the state rules vary, requiring lawyers to retain advertising material from one to six years. See Supra note 15.
106. See http://www.website-record.com..
107. Comment to MR 7.2, at 96.
108. Joseph Delivers! is a New Jersey firm that assists lawyers and others with domain name research and registration. According to a press release in March 1998, the firm was seeking one million dollars for the domain name whitehousecrisis.com.
109. See http://www.martindale.com/ and http://www.wld.com/.
110. For a list of approximately 50 on-line directories, See http://www.findlaw.com/14firms/directories.html.
11. MR 5.1.
112. MR 7.3(a)
113. MR 7.3(b)
114. MR 7.3(c)
115. MR 7.3(d)
116. This issue becomes more difficult with the increased use ofthreaded discussion formats within web sites.
117. Supra note 29.
118. Id.
119. __ U.S. __, 113 S.Ct. 1792 (1993).
120. See comment to MR 7.3, page 97.
121. Id.
122. Supra note 64, Utah Ethics Opinion 97-10.
123. See comment to MR 7.3 at 98.
124. In re Canter, 95-831-O-H, Judgement of the Hearing Committee.
125. See Spamming Lawyer Disbarred, July 10,1997, at http://www.wiredcome/news/news/politics/story/5060.html. {Editor's Note: The JUDGMENT OF THE HEARING COMMITTEE in Canter case is available at legalEthics.com.]
126. See http://www.junkemail.org/bills and other links at http://www.jmls.edu/cyber/index/spam.html.
127. 47 USC §227 Restrictions on Use of Telephone Equipment.
128. Supra note 62, proposed Florida rules.
129. Supra note 36.