Lawyer Advertising Opinion A-0110 LAWYER ADVERTISING ON THE INTERNET

Question Presented: A question has been raised as to how the current advertising and solicitation rules apply to lawyer advertising and solicitation over the Internet.

Opinion: Many thousands of lawyers regularly use the Internet to communicate and market their services. The Internet is a global network of computers which send and receive data over telephone lines and cable. Law firms have websites or "homepages" on the Internet which convey information about the firm, its lawyers, its areas of practice and some even provide legal information. A person visiting a law firm's home page can send electronic mail (e-mail) messages to the law firm or ask questions. Lawyers can also post advertisements in newsgroups and communicate about their services in chat rooms.

It is the Committee's opinion that a Virginia lawyer advertising on the Internet is subject to applicable disciplinary rules in the Virginia Code of Professional Responsibility. Thus, for example, DR 2-101(A)'s prohibition of advertising which is false, fraudulent, deceptive or misleading applies to all "public communications" including communications over the Internet.

The Committee observes that a lawyer's communications over the Internet are "disseminated to the public by use of electronic media" for which the lawyer has given value and therefore are subject to the requirements of DR 2-101(B). This means that a lawyer or law firm that advertises on the Internet must make and preserve for at least one year a hard copy of any advertisement posted on the Internet. This includes advertisements in the form of home pages, postings to bulletin boards, newsgroups, usenets, telnets, etc.

The Committee observes that not all of the disciplinary rules which apply to lawyer advertising via other media will apply to lawyer advertising over the Internet, and therefore it may be necessary for the Committee to issue further opinions on this subject as new questions arise. However, to the extent that existing rules can be applied to lawyer advertising over the Internet, lawyers must comply with such rules. Other jurisdictions have reached the same conclusion. See, e.g., Iowa Ethics Opinion 95-21 (1996) (lawyers who have home pages must comply with rules on advertising including publication of required disclaimers); Pennsylvania Ethics Opinion 96-17 (1996) (communications on the Internet about lawyers' services are subject to ethics rules regarding advertising); South Carolina Ethics Opinion 94-27 (1995) (lawyer advertising on the Internet is subject to state's rules regarding advertising).

Lawyers who communicate on the Internet in "real time" chat rooms must abide by the restrictions on solicitation set forth in DR 2-103. "In-person" communication in personal injury and wrongful death cases is prohibited, subject to certain exceptions, by DR 2-103(F). "In-person" communications include not only face to face communication but also "telephonic communication." The Committee believes that a lawyer who solicits employment in a "real time" chat room may not solicit employment in personal injury or wrongful death cases by communicating with the victim or their immediate family.

Committee Opinion

April 14, 1998