Proposed Rules (version 1.3) by David Hirsch
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 1.3
[The orignal draft and version 1.2 are also available.]
Version 1.3
June 12, 1997
Changes in this version include numerous syntax refinements, and substantive enhancements.
Thanks to everyone who emailed suggestions. Please keep them coming to david@iowalaw.com. Whatever quality and logic these rules manage to achieve is the result of excellent suggestions received from around the world through the friendly bandwidth of the Internet.
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 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. 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
Beckman, Hirsch & Ell
314 North Fourth Street
Burlington, IA 52601
Rules of Professional Conduct Relating to Web Pages
Rule of Construction. Web Pages offer a powerful medium for lawyers to fulfill their duty regarding dissemination of information, fostering of understanding, and furthering of education, with respect to the administration of justice. Web Pages also offer the public an important medium through which to acquire information concerning potential employment of counsel. These rules shall be construed with those principles in mind.
I. Definitions
A. Web Page is any computer language electronic "written" page that typically is published or made available on an unrestricted or partially unrestricted basis on that portion of the Internet presently known as the World Wide Web. Pages that are totally restricted do not come under the purview of these specific rules. A Web Page is generally accessed by a web browser through the Internet, but may also be accessed by electronic mail, and does not necessarily need to be accessed via the Internet.
B. Web Site is a related collection of Web Pages under singular control.
C. Totally restricted web pages are protected from general public access in a reasonably secure manner, and include web pages made available for firm members only and/or for specific clients only. The manner of protection generally includes passwords, encryption, or both. These rules are not intended to apply to totally restricted web pages. Mere password protection is not sufficient to make a page totally restricted, unless coupled with a limitation on the group to whom passwords are available. In general, totally restricted pages are for the purpose of firm management, case work, and knowledge bases (if limited only to the firm), and are related to processing specific cases, or specific representations, if clients have access.
D. Flagrant violations are defined as violations so obviously intentional, offensive, grossly negligent or recklessly 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, but may be rebutted by competent evidence.
E. Non-flagrant violations are defined as all violations that are not flagrant.
F. Publish means to publish or cause to be published. Whether web page resides on a law office computer or outside the law office on "bargained-for 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.
G. A hyperlink, or a link, is an electronic connection between two web pages, or two places on a single web page. Frequently a link is to a web page that is on another web site. The linked page is the the page the link jumps to when clicked or activated.
H. Innocent references include references that cannot reasonably be misconstrued as you or your firm's web page or web page listing when they in fact are not. 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. This definition by itself shall not relieve lawyer of independent responsibility for complying with rules regarding legal referral services and legal directories.
I. A Web Page shall be considered local to the lawyer's or law firm's web site if the the lawyer or law firm directly or indirectly control the content of the Web 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. Other "logical" exceptions may exist.
II. Application by Analogy. These rules may be applied by analogy to attorney Internet usage that is other than the Word Wide Web, concerning what is permissible; however these rules regarding the World Wide Web should not be applied by analogy to determine what is prohibited regarding Internet usage other than the World Wide Web, except in instances where improper usage appears clear and blatant.
III. Rules. 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 address of the lawyer or holds lawyer out to be a lawyer, that does not comply with the following requirements:
A. Taste. The dissemination of information shall be tasteful and not overtly commercial, in keeping with longstanding Internet tradition.
B. Disclosure. Except for the top level Web Page, at or near the top of every Web Page local to the lawyer's site there shall be a Web Page link entitled "Disclosure Required by Supreme Court of Iowa." The text, when that Web Page link is activated 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 Web 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 Web Page link. It is also permissible to put the disclosure in a frame near the top of the web page so that it is likely to appear on the first screen of any viewer of the page.
C. Vitals. All Web Pages local to the lawyer's web site shall contain at or near the top of the page the name and address of the lawyer or law firm, attorney's Iowa Bar Registration number, and listing of the state or states the lawyer or firm members are admitted to practice in. It is permissible for each page to contain the name and address of the firm at the top with a hyperlink to the balance of the information this paragraph requires, provided near the name and address is hyperlink language to the effect of: "Names of firms' attorneys, bar numbers, and states in which licensed to practice. It is also permissible to include the required language in a frame near the top of the page that is likely to be displayed in the first screen of a viewer, with any required links also in the frame.
D. External Links. Any links to sites external to lawyer's site shall either be labeled as external Web Page links, or shall be obviously so. The phrase "external links" need not be used so long as confusion is avoided with respect to the non-local nature of the external links.
E. Misleading Content. No attorney shall knowingly materially mislead or knowingly materially misinform with respect to the contents of the attorney's own Web Pages.
F. Legal Clinic or Center. 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. Commercialism. Any information about a lawyer and a lawyer's firm on a lawyer's Web Pages shall be tasteful and should be primarily informationally oriented. No content should reasonably be construable to be hucksterism or unprofessional. It shall be no defense that the information presented is true or is of value, if the information and its presentation is done in a crass and unbecoming manner so as to be offensively commercial.
H. Referral Organizations and Directories. 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., computer space rented from a third-party), it shall not be done in a manner that is designed to make the lawyer or firm part of a larger directory service with the purpose of matching clients with lawyers by area of practice, unless all the rules applicable to any service of that type are complied with. This rule shall not prohibit directories from linking to a firm's independent web site, or even from providing that web site. One test of whether a page or pages on a web site are independent linked pages, or are instead part of a directory, includes degree of freedom and control of the linked page's format and content. The greater the firm's or lawyer's freedom regarding format and content, the more the linked pages are likely to be independent. Other tests, none of which are necessarily independently determinative, might include similarity in style, likelihood of confusion, and apparent entanglement or lack of entanglement.
I. Fees. 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.
J. Testimonials. A testimonial create a rebuttable presumption that the page on which it is included is advertising rather than content.
K. References to win/loss records, warranties as to outcome, and puffery create a rebuttable presumption that the page on which they are included is advertising rather than content.
L. To the extent feasible, web graphics, video and sound shall be treated in the same manner as text for regulation purposes.
M. A lawyer is not responsible for innocent references (see definition above).
IV. Violations
A. The foregoing notwithstanding, any non-flagrant violation of Web Page rules shall require a warning to attorney to remedy the violation before further action can be taken:
- Before any action can be taken with respect to non-flagrant violation, a warning must be given by Regulatory Authority by certified-return-receipt mail. Attorney will have 10 days from receipt of warning to remedy non-flagrant violation and to inform in writing the Regulating Authority of the fact of the fix and the precise nature of the fix. Non-flagrant violations properly remedied will be non-actionable. There shall be no safe harbor for the fix itself.
- 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. Web Pages that provide for automatically charged services (e.g., by credit card) from the pages themselves (e.g., an electronic mail address for fixed-fee answers to legal questions, or publicly offering access to certain pages only on payment of fee) will be subject to heightened scrutiny.
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. Web Pages may be publicized through normal Internet channels, including, but not limited to, newsgroups, list servers, and web cataloging and index services.
F. Lawyers may put their personal or firm URL and electronic mail address on business cards and letterhead and anywhere else telephone number and street address may be listed, and under the same terms.
G. A lawyer shall not knowingly put, or cause to be put, words in hidden fields of Web Page that have the effect to cause hits on the Web Page unless the words are properly and logically related to the content of the page.
H. Web Pages that are otherwise in compliance are not out of compliance by tastefully presenting (but not limited to) the following:
- Articles written by firm members.
- Editorials and commentary written by firm members.
- Curriculum vitae of firm members.
- Association memberships and positions held.
- Attorney biographical information, including, but not limited to, honors and awards.
- 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.
- Any mechanism, including electronic mail, to contact lawyer to ask questions or make comments. (Lawyer is responsible for determining whether there is a licensing problem.)
- A collection of knowledge electronically in any form, 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.
- News stories or news summaries.
- Text of Briefs, pleadings and legal documents (provided there is proper client consent where required).
- Requests for information concerning pending cases, provided client confidences are not improperly compromised and provided request is done tastefully and in a manner not designed to solicit business. Requests may include, but are not limited to, seeking experts and inquiry concerning causation.
- Interactive content.
V. Attorneys are not required to keep archives of web pages.
VI. Areas requiring special care include, but are not limited to:
A. Comments on pending litigation. The Web does not enlarge this.
B. Formation of attorney/client relationship, including conflict checking. Special care needs to be taken here. The Web, which is itself a communication enhancer, makes it easy to develop a professional relationship more quickly than may be desirable.
C. Protection of confidential information. The duty with respect to the Web is no different than elsewhere: appropriate security based on the totality of the circumstances. A lawyer may not abdicate responsibility to know when encryption is desirable, choose unguessable non-dictionary passwords, and provide for an adequate firewall. That notwithstanding, the absence of any of the referred to security is not by itself the breach of an ethical standard.
D. If the public is permitted to publicly post on lawyer's site, any such posting should be done in moderated format. The format will be considered moderated if lawyer reviews the content on a daily basis, and removes inappropriate content forthwith. Public postings should be clearly identified as such.
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