Proposed Rules by Iowa Attorney

David Hirsch, an Iowa attorney, posted on the Internet in March 1996 some proposed rules relating to Web Page Sert publication by attorneys. The following is a copy of the most recent version of the text of his post, formatted in HTML.

Text of Announcement and Proposed Rules

Rules of Professional Conduct relating to web pages can be viewed as protection for two groups of people:

Protection to the public from dishonest lawyers.
Protection to honest lawyers from regulators.

More than one Iowa lawyer asked me to draft proposed rules for legal web pages. The reason is Iowa, along with Florida and Texas, is about as tough a state as there is when it comes to regulating what a lawyer may publish to the public. Current Iowa rules that specifically cover electronic publication clearly were drafted only with television and radio in mind.

Because the subject interested me, and because for several years I have wanted to publish a web page, but have not because of fear it would violate the Iowa Rules of Professional Conduct, I consented to draft proposed rules regarding web pages.

While there may be some attempt to cause a version of these rules to be enacted, the drafting of these rules, at least at this point, is simply an intellectual exercise. I have absolutely no official commission with respect to the drafting of these rules. The draft is completely unconnected with either the Supreme Court of Iowa or the Iowa State Bar Association, neither one of which may care for what I drafted.

What I would like from you is comment, preferably by email to: david@iowalaw.com

What do you think of these rules? What problems to you see with them? How can they be improved?

Your insights are important to me. In order to obtain thoughtful consideration from the regulators, we must be certain that the language we petition them to adopt is close to optimal in the first draft we submit. There is too much room for misunderstanding even on the part of those loosely familiar with the net, let alone from those with little understanding.

Thanks.

David Hirsch, david@iowalaw.com
Beckman, Hirsch & Ell
314 North Fourth Street
Burlington, IA 52601

Rule of Professional Conduct Relating to Web Pages

I. Definitions

A. Web Page is defined as any html (or sessor) coded page that is published or made available on an unrestricted or partially unrestricted basis on that portion of the Internet known as the World Wide Web. Pages that are totally restricted do not come under the purview of these specific rules. Totally restricted pages include those made available for firm members only and/or for specific clients only.

B. Flagrant violations are defined as violations so obviously intentional or offensive or grossly negligent that they could not be the result of misconstruing a rule or inadvertently overlooking a rule -- or, even if they were, were recklessly so. All fraudulent statements or acts of an attorney or firm are per se flagrant.

C. Non-flagrant violations are defined as all violations that are not flagrant.

D. Publish means to publish yourself, or for any other lawyer or employee in your firm to publish or cause to be published. Whether web page is on a law office computer or offsite on "rented computer space" shall not affect whether the page is in fact published. Publish does not include innocent reference to you or your firm on the web pages of others.

E. Innocent references are references that cannot be misconstrued as you or your firm's web page or web page listing. A link to your web page would ordinarily be an innocent reference. An article published with your name and address in it would ordinarily be an innocent reference, even if the article is authored by you.

F. A page shall be considered local to the lawyer's or law firm's site if the the lawyer or law firm directly or indirectly control the content of the page. An exception to this is a published article by lawyer that is in a third-party publication and is linked to lawyer's or law firm's site.

II. No attorney admitted to practice in this state shall publish a Web Page that contains the firm name of the lawyer and/or the business address, telephone number, or electronic mail i-d of the lawyer or holds lawyer out to be a lawyer, that does not comply with the following requirements:

A. There is a broad and longstanding tradition on the Internet of the dissemination of information in a tasteful and not obviously commercial fashion. This tradition shall be complied with.

B. Except for the top level page, at or near the top of every Web Page local to the lawyer's site there shall be a hypertext link entitled Disclosure Required by Supreme Court of Iowa. The text of that jump shall be: "The determination of the need for legal services and the choice of a lawyer are extremely important decisions and should not be based solely upon advertisements or self-proclaimed expertise. This disclosure is required by rule of the Supreme Court of Iowa." The top level page of lawyer's web site shall set forth that language in full at or near the top of the page, and not as a hypertext link.

C. All pages local to the lawyer's site shall contain at or near the top of the page the name and address of the lawyer or law firm, and the state or states the lawyer or firm members are admitted to practice in.

D. Any links to sites external to lawyer's site shall be openly labeled as external links. That phrase need not be used so long as confusion is avoided with respect to the non-local nature of the external links. Web Pages offer a unique medium for lawyers to fulfill their duty of dissemination of information, understanding and education with respect to the administration of justice. Web Pages also offer the public a unique medium through which to acquire information concerning potential employment of counsel.

E. No attorney shall knowingly materially mislead or knowingly materially misinform with respect to the contents of the attorney's own Web Page.

F. Designation as Legal Clinic or Center. The term "clinic", "center", or any other similar term shall not be used in any communication to the public unless the practice of the lawyer or the lawyer's firm is limited to specific matters as described in DR2-101(E) for which costs of rendering the service can be substantially reduced because of the repetitive nature of the services performed and the use of standardized forms and office procedures.

G. Any information about a lawyer and a lawyer's firm on a lawyer's Web Page shall be tasteful and informationally oriented. Nothing shall be presented by way of content that could reasonably be construed to be hucksterism or any kind of unbecoming presentation or unprofessional presentation. It shall be no defense that the information presented is true or is of value, if the information and its presentation is done in such a way as to be offensively commercial.

H. These rules do not permit Iowa attorneys to join referral organizations not otherwise permitted by the Iowa rules. Furthermore, any web pages of Iowa lawyers that are published as part of a larger directory designed to match clients with lawyers by area of practice shall comply with any rules otherwise applicable to legal directories of that sort. While it is acceptable for a firm's web page(s) to be stored on a computer outside of the firm (e.g., space rented from an Internet provider), it shall not be done in a manner that is designed to make the lawyer or firm part of a larger directory service designed to match clients with lawyers by area of practice unless all the rules applicable to any service of that type are complied with.

I. A lawyer or law firm may use restrained subjective characterizations of rates or fees such as "reasonable", "moderate", and "very reasonable", but shall avoid all unrestrained subjective characterizations of rates or fees, such as, but not limited to, "cut-rate", "lowest", "giveaway", "below-cost", "discount", and "special". Actual rates may also be listed. The listing or discussion of rates creates a rebuttable presumption that the page they are listed on or discussed on is advertising rather than content.

III. Violations

A. The foregoing notwithstanding, any non-flagrant violation of rules shall be subject to a warning to attorney to remedy.

Before any action can be taken with respect to non-flagrant violation, a warning must be given by certified-return-receipt mail. Attorney will have 10 days from receipt of warning to remedy non-flagrant violation. Non-flagrant violations so remedied will be non-actionable.
Attorney may petition for an ethics opinion with respect to any warning given, but must still remedy within 10 days of original receipt of warning in order not to risk being found in violation if ethics opinion is unfavorable.

B. Flagrant rule violations, and non-flagrant rule violations not remedied within 10-day period after notice of non-flagrant violation, shall be treated like other violations of the Disciplinary Rules.

C. Pages that provide for automatically charged services (e.g., by credit card) from the pages themselves (e.g., a mailto for fixed-fee answers to legal questions, or publicly offering access to certain pages only on payment of fee) will be more closely scrutinized than those that don't.

D. The Administration of Justice is enhanced by public access to information. In areas where these rules are unclear or the application of these rules is in doubt, these rules shall be interpreted and construed to encourage the free flow of information.

E. Pages that are otherwise in compliance are not out of compliance by tastefully presenting (list not meant to be exhaustive):

Articles written by firm members.
Editorials and commentary written by firm members.
Curriculum vitae of firm members.
Association memberships and positions held.
Honors and awards received by firm members.
Text or summaries of appellate decisions firm members argued or participated in.
Text of any judicial opinions.
Text of statutes.
FAQ's or frequently asked questions concerning areas of the law.
mailto's or the ability to contact lawyer to ask questions or make comments. (Lawyer is responsible for determining issues of whether there is a licensing problem if the lawyer responds--depending on the location of the person asking the question and the topic of the question. In most instances the receipt of an electronic mail question is no different than receipt of an out-of-state telephone call.)
A knowledge base, static or dynamic.
Anything that a lawyer could present in a book on a substantive topic or in an article on a substantive topic, but is instead presenting electronically either statically or dynamically.

You can return to the Iowa Listing, the Legal Ethics Resources Listing, or use the navigational tools above or below.

Articles	Brochure	Feedback	Ethicsites
Issues	Research	Search	Webethics