(This article appeared in Journal 16,2, June 2011)
I am just going to say it. As one of the ethics counsel at the North Carolina State Bar, I hate the Internet. Understanding the Internet is like raising a child. Just as soon as you think you have it figured out, something new gets thrown at you. Or maybe it is more like that mythological creature with all the heads where if you cut off one head, two more heads grow back in its place.
The Ethics Committee first encountered the beast that is the Internet in 1996. In RPC 239 (October 18, 1996), the Ethics Committee addressed the propriety of a law firm having its own website. The opinion provides that it is permissible for a lawyer to display information about his or her legal services on “a site on the World Wide Web which can be accessed via the Internet, a global network of interconnected computers.” (We were so young and naïve then.) RPC 239 provides that advertising on the Internet is permissible so long as the website does not contain information that is false or misleading, lists all jurisdictions in which the lawyers in the firm are licensed to practice law, and discloses the geographic location of the law firm’s principal office. Seems simple enough.
Oh, for the good old days. At the recent quarterly meeting, the Ethics Committee considered three agenda items dealing with the ever-changing, ever-technical, ever-incomprehensible landscape that is Internet advertising.1 Proposed 2010 FEO 14 (Using search engine keywords to advertise on the Internet), an inquiry on utilizing live chat support services on a law firm website, and an inquiry on advertising on the Groupon website.
Prior to this deluge of inquiries pertaining to heretofore unheard of Internet offerings, the predominant issue surrounding Internet advertising was the permissible content on law firm websites. In 2000 FEO 1, the Ethics Committee determined that statements about a lawyer's or a law firm's record in obtaining favorable verdicts was permissible on a firm's website if the information was provided in a certain context. This opinion was recently overruled by 2009 FEO 16. The new opinion provides that a law firm may include a “case summary” section on its website, so long as the section contains factually accurate information accompanied by an appropriate disclaimer.
Okay, so it took a few drafts, but we ultimately got the whole “case summary sections” controversy settled. But now the Ethics Committee is faced with numerous inquiries pertaining to Internet advertising options that clearly were not even a twinkle in the eyes of the committee that revised the Rules of Professional Conduct in 2003.
In one inquiry, the Ethics Committee considers the ethical issues surrounding a lawyer advertising on a “deal of the day” or “group coupon” website. A consumer registers his or her email address and city of residence with the company’s website. The company emails local “daily deals” to registered consumers. The daily deals are generally for services such as spa treatments, tourist attractions, restaurants, etc. But now, lawyers would like to advertise legal services on these “deal of the day” websites as well. In connection with this inquiry, the Ethics Committee considered, among other issues, the potential for prohibited fee sharing with a nonlawyer, as well as possible refund and trust accounting issues. This opinion is going back to a subcommittee a second time for further head scratching.
In Proposed 2010 FEO 14, the Ethics Committee considered a lawyer’s actions in connection with a search engine company’s search-based advertising program. Apparently the program allows advertisers (in our case lawyers) to select specific words or phrases that should trigger their advertisements. When a “user” performs a search, the advertisements triggered by the relevant words magically appear, along with the search engine’s main search results. The specific inquiry considered by the committee asked whether it is a violation of the Rules of Professional Conduct for one lawyer to select another lawyer’s name as an advertisement trigger. So for example, if Attorney Joe Smith selects as his advertisement keywords “Attorney Jack Jones,” when an Internet user then enters “Attorney Jack Jones” in the search engine, a link to Attorney Joe Smith’s website appears as an advertisement. A link to Attorney Jack Jones’ website would also appear in the main search results. This one is also going back to a subcommittee for further rumination. The inquiry always invokes a “lively” discussion from the members of the Ethics Committee. What do you think? Does this behavior rise to the level of deceptive conduct under Rule 8.4 or is it just clever marketing? Feel free to join the discussion.
In the third inquiry, the Ethics Committee considers whether a law firm may use a “live chat support service” on its website. Apparently, after downloading the applicable software program to the firm website, a “button” is displayed on the website which reads something like “Click Here to Chat Live.” Once a visitor clicks on the button to request a live chat, the visitor will be able to have a typed-out conversation in real-time with an agent of the law firm. Depending on the software program purchased, in addition to the live chat “button” being displayed on the website, a pop-up window may also appear on the screen specifically asking visitors if they would like “live help.” In another form of the service, a computer generated voice “speaks” to the visitor and asks if the visitor would like live assistance. At issue here is whether the live chat support service amounts to improper in-person solicitation. Relying on the fact that the public has become desensitized to the various interactive features of the Internet, and understands the right to ignore electronic communications, the Ethics Committee gave this technology its blessing and is publishing the opinion comment.
Okay people, what is next?? If I get an inquiry asking whether it is permissible for a lawyer’s website to be programmed to project a hologram into a potential client’s house, I might just lose it. (Please, please don’t tell me this technology already exists.)
Suzanne Lever is assistant ethics counsel for the North Carolina State Bar.