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The following discussion thread excerpt is from an “on demand” law.com online seminar, “Ethics and the Internet,” moderated by Professor Roy Simon of Hofstra University School of Law. For more information on this program and other law.com seminar offerings please visit http://www.law.com/seminars. PROFESSOR ROY SIMON, HOFSTRA UNIVERSITY SCHOOL OF LAW, HEMPSTEAD, N.Y. To start off today’s discussion, let me ask a simple question: Are Web pages any different from print advertising? In other words, should the rules that apply to lawyer and law firm Web pages be any different from the rules that govern lawyer advertising in newspapers, the Yellow Pages, and law firm brochures? How are Web pages different from newspaper ads, if at all? JONATHAN WILLENS, JONATHAN A. WILLENS LLC, NEW YORK, N.Y. The simple answer to the simple question is that Web pages are just like print ads except that (1) they cannot be limited to a particular town or city and (2) they change over time. So every legal Web site is more like an ad in The Wall Street Journal than an ad in the B rooklyn Eagle, and that raises questions about practicing law across state borders. Also, the constant change in a Web site creates difficulty for bar associations trying to monitor its advertising content. JEFFERY KUESTER, THOMAS, KAYDEN, HORSTENMEYER & RISLEY, ATLANTA, GA. Where is everyone? I guess talking about their firm’s Web site is not a comfortable subject for most people. Nonetheless, I don’t think all Web sites are advertisements, much less like print advertisements of any kind. Some Web sites, and perhaps certain aspects of most, are more educational than commercial in nature. Thus, those aspects should not be subject to the same advertising rules. PROFESSOR CATHERINE LANCOT, VILLANOVA UNIVERSITY SCHOOL OF LAW, VILLANOVA, PA. Jeffrey may be right as a matter of semantics, but I think it’s likely that lawyer Web sites will be treated as advertising under the rules. Web pages are treated as advertising by the states of Texas and Florida, among others. Model Rule 7.1 governs communications about the lawyer or the lawyer’s services. Most information on Web pages qualifies as such a communication. Even material that is deemed to be “educational” or “factual” is likely to be covered by 7.1, although it generally is permissible to the extent that it is not misleading. There are substantial difficulties in regulating the content of attorney home pages, particularly because a good Web site will have constantly changing information. Thus, traditional requirements that advertising material be filed with the state bar, as was the original requirement in Texas, can be quite problematic for Internet advertising. Florida apparently takes the position that the lawyer need only file a hard copy of the content of the home page, but nothing else (I am paraphrasing from Roy Simon’s summary in his excellent compilation of state variations on the Model Rules). The difficulty is that these traditional regulatory methods make no sense if the bar is serious about regulating lawyer advertising on the Internet. Lawyer Web sites contain lots of different elements, each of which pose different regulatory issues, such as : � the content of the firm brochure, which seems to be traditional advertising; � legal information such as summaries of existing law, which again seems to be just advertising but not “legal advice” — but is there liability if it’s not accurate and is thus “misleading”? Or could Jeffrey be right in suggesting that it’s not commercial speech at all (if so, presumably, can’t be regulated under the First Amendment?) � a space to post legal questions and get answers, which seems to be advertising and not solicitation, but may trigger the attorney-client relationship issues previously discussed; � links to other sites, legal or otherwise; unclear whether regulators would treat this as subject to the rules or not. � graphics, pictures, music, etc., which are permissible in some states and not others. This raises (perhaps prematurely) our issue for Friday about jurisdiction to regulate Web sites — What if your Web site is OK in New York but not in Iowa? A few years ago, when I first did CLE programs on this issue, very few lawyers had Web sites, so these questions all seemed hypothetical. Although this has obviously changed, I have not yet heard of any lawyer who has been disciplined for material on a Web site. DAVID BELL, LANGFORD & BELL, WALNUT CREEK, CALIF. I agree with Catherine that lawyer Web sites will be treated as advertising under the professional responsibility rules. There is a good article on this issue, if no one has mentioned it before, entitled, “The Ethics of Attorney Websites: Updating the Model Rules to Better Deal With Emerging Technologies,” ( Georgetown Journal of Legal Ethics (Spring 2000)). The author, J. Clayton Athey, discusses the tension between commercial and protected speech on attorney Web sites. Although many attorneys claim to provide Web site informational content as a public service first and foremost, my own belief is that attorneys create and maintain Web sites primarily for advertising purposes, and that the educational content they provide is intended to attract visitors to their site and make their site “sticky” for those who do visit. A law firm’s Web site can also be useful in attracting attorneys and employees to work at the firm. I also agree with Catherine that current regulations do not always fit the new technologies. For example, based upon my understanding, on a well-developed, active Web site, it can be virtually impossible to meet copy retention requirements, because the Web site changes from minute to minute, and each visitor “sees” a different site. It can become an unduly onerous burden to require the attorney/firm to retain a copy of the individual page(s) each individual visitor views. I think that this is especially so in a state such as California, where there is little enforcement of the advertising rules.

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