Is a California law firm's public Internet website (describing the firm and offering email contact) a regulated 'communication' or 'solicitation' under former Rule 1-400, and what cross-jurisdictional considerations apply?

State Bar of California COPRAC Formal Opinion 2001-155: Application of California Advertising Rules to a Law Firm's Internet Website

Short answer: The opinion concludes that an attorney's Internet website describing the firm's availability for professional employment was a "communication" under former Rule 1-400(A) and an "advertisement" under Business and Professions Code sections 6157 to 6158.3, subject to all prohibitions on false, misleading, or deceptive messages applied to text, images, and sounds; the website was not a "solicitation" under former Rule 1-400(B) because it was neither delivered in person or by telephone nor directed to a person known to be represented by counsel in the matter, even where the site included email functionality. The committee also concluded that California-based attorneys had to consider that other jurisdictions' rules might apply to their websites and might treat them as the unauthorized practice of law.

Currency note

This opinion was issued in 2001, before the State Bar of California's adoption of the November 1, 2018 revisions to the Rules of Professional Conduct. The opinion interprets former Rules 1-100, 1-300, and 1-400, together with Business and Professions Code sections 6157, 6157.1, 6157.2, 6158, 6158.1, 6158.2, and 6158.3. Current Rules 7.1, 7.2, 7.3, and 5.5 now address the lawyer-advertising and unauthorized-practice issues raised here. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule reference.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the State Bar of California's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. The opinion text is reproduced at the bottom; the official source (linked) controls.

View original opinion

Plain-English summary

The hypothetical: Attorney A maintained a publicly accessible Internet website describing her law firm and its history and practice, the firm's lawyers, law-related images, and an email form allowing communication to any attorney in the firm. The site contained no live video, bulletin board, news group, or external links.

On the communication question, the committee concluded that the website was a "communication" under former Rule 1-400(A) because it concerned the firm's availability for professional employment and was an advertisement "regardless of medium" within the meaning of subsection (3). The committee reasoned that the conclusion did not change because users had to visit the site to read it (the analogy was to a posted handbill, which is still a communication even though it must be picked up), nor because the site included some general-public-interest content. Because the website was a communication, the rules requiring it to be non-false, non-misleading, and identifiable as a communication (former Rule 1-400(D)(1)-(4)) applied, as did the Board of Governors' standards under former Rule 1-400(E) and the two-year retention requirement under former Rule 1-400(F). The retention requirement applied to each page of every version and revision of the site.

On the solicitation question, the committee concluded that the website was not a "solicitation" under former Rule 1-400(B). Even assuming pecuniary motive, the website was not "delivered in person or by telephone" under subsection (B)(2)(a), which the committee read as a deliberate bright-line test grounded in Ohralik v. Ohio State Bar Association (1977) and In Re R.M.J. (1982). Adding email functionality did not change the analysis: although email transmitted faster than the postal medium and could share telephone transmission lines, email lacked the persuasion dynamic that justified the in-person/telephone restriction, and it allowed the recipient to reflect, share, and keep a permanent record. The website also did not satisfy subsection (B)(2)(b), which required the communication to be directed to a person known to be represented by counsel in the matter; a publicly accessible site is directed to no one in particular, and visitor-initiated email contact is not initiated by the lawyer. If the lawyer later responded to an identified visitor known to be represented in the relevant matter, that response could become a solicitation under subsection (B)(2)(b).

On the statutory framework, the committee concluded that the website was also an "advertisement" within the Business and Professions Code's broadened definition (section 6157(c) read with section 6158, which the committee read to include any "electronic media" advertising including computer networks). Sections 6157.1 (false or misleading), 6157.2 (guaranties or promises of quick payment), and 6158 (the "message as a whole" test for electronic-media advertising) all applied. The committee emphasized section 6158's recognition that the message of electronic media is "the effect in combination of the spoken word, sound, background, action, symbols, visual image, or any other technique employed to create the message." The committee noted that sections 6157-6158.3 did not appear to apply to foreign attorneys because the statutory definition of "member" tracks State Bar membership.

On cross-jurisdictional reach, the committee read former Rules 1-100(D)(1) and 1-300(B) to require California attorneys to comply with stricter applicable rules of other jurisdictions even when practicing outside California. Because Internet websites are globally accessible, California attorneys had two choices: openly advertise in multiple jurisdictions (and comply with each jurisdiction's rules including unauthorized-practice rules), or take steps to make clear they were not advertising in other jurisdictions. The committee offered examples (without claiming sufficiency) of disclosures that might help: explaining where the lawyer is licensed, where the firm maintains offices and practices, any limitation on the courts in which the lawyer is willing to appear, and a statement that the lawyer does not seek to represent anyone based solely on a website visit. The committee noted that those steps might not comply with other jurisdictions' rules, citing Arizona State Bar Opinion 97-04 and Iowa Formal Opinion 96-14 as examples of state rules with broad application to out-of-state firms.

Common questions

Q: Is a California law firm's website covered by the rules against misleading lawyer advertising?

A: Per the opinion, yes. The committee held that the website was a "communication" under former Rule 1-400(A) because it concerned the firm's availability for professional employment and was an advertisement "regardless of medium." The non-false/misleading prohibitions in former Rule 1-400(D), the standards under former Rule 1-400(E), and the section 6157.1/6158 statutory prohibitions all applied.

Q: Does the in-person/telephone solicitation ban apply because the site has an email form?

A: Per the opinion, no. The committee read former Rule 1-400(B)(2)(a) as a deliberate "bright line" test tied to the in-person/telephone persuasion dynamic from Ohralik. The committee distinguished email as a written, mechanically paced medium that allows the recipient to reflect, share, and keep a permanent record, even though email might share telephone transmission lines.

Q: When can email response become a solicitation?

A: Per the opinion, when a visitor's contact prompts the lawyer to direct a response, that response becomes a solicitation under former Rule 1-400(B)(2)(b) only if the person is known to the lawyer to be represented by counsel in the matter that is the subject of the communication. The general rule that visitors initiate contact prevents passively offered email forms from triggering the solicitation rules.

Q: Does the lawyer need to keep copies of every version of the website?

A: Per the opinion, yes. The committee applied former Rule 1-400(F)'s two-year retention requirement to "each page of every version and revision of the web site."

Q: Do other states' rules apply to a California-only practice's website?

A: Per the opinion, they may. The committee held that former Rules 1-100(D)(1) and 1-300(B) require the California attorney to comply with stricter applicable rules of other jurisdictions, and a globally accessible website may trigger such rules. The committee suggested explanatory disclosures (licensure jurisdiction, office locations, court limitations, no-representation-based-on-website-visit) but cautioned that they may not satisfy other jurisdictions, citing Arizona Opinion 97-04 and Iowa Opinion 96-14.

Q: Do the California statutes apply to foreign lawyers' websites?

A: Per the opinion, sections 6157-6158.3 do not appear to apply to foreign attorneys, because the statutory definitions tie advertising to a "member" of the State Bar of California. Former Rule 1-100(D)(2) does subject non-member lawyers to the California Rules of Professional Conduct while engaged in lawyer functions in California.

Background and rules framework

The opinion interprets former California Rules 1-100, 1-300 (unauthorized practice), and 1-400 (advertising and solicitation), together with Business and Professions Code sections 6157-6158.3. Functionally these correspond, in current numbering, to Rules 7.1, 7.2, 7.3, and 5.5 of the California Rules of Professional Conduct, though the framework here is the former one. The opinion is a notable early treatment of how state advertising rules map onto Internet websites and serves as historical context for the present rule.

Citations and references

Rules of Professional Conduct (former, in effect at time of opinion):

• Former California Rule 1-100, including 1-100(B)(2) and 1-100(D)
• Former California Rule 1-300, including 1-300(B)
• Former California Rule 1-400, including 1-400(A), 1-400(B), 1-400(D), 1-400(E), and 1-400(F)

ABA Model Rules (referenced for comparison):

• ABA Model Rule 7.5(b)
• ABA Model Rule 8.5(b)(2)(ii)

Statutes:

• California Business and Professions Code sections 6125, 6157, 6157.1, 6157.2, 6158, 6158.1, 6158.2, 6158.3

Cases:

• Ohralik v. Ohio State Bar Association (1977) 436 U.S. 447, constitutional permissibility of in-person solicitation bans
• In Re R.M.J. (1982) 455 U.S. 191, lawyer advertising
• Edenfield v. Fane (1993) 507 U.S. 761, distinguishing CPA solicitation
• Birbrower, Montalbano, Condon & Frank v. Superior Court (1998) 17 Cal.4th 119, unauthorized practice
• Estate of Condon (1998) 65 Cal.App.4th 1138, out-of-state lawyer cross-border practice
• Florida Bar v. Kaiser (Fla. 1981) 397 So.2d 1132, foreign lawyer holding-out
• In re Professional Ethics (N.J. 1982) 44 A.2d 1092, interstate firm advertising

Other opinions cited:

• Arizona State Bar Committee Opinion 97-04 (Internet communications)
• Iowa Formal Opinion 96-14 (out-of-state firm)
• South Carolina Ethics Opinion 94-27 (1995) (geographic limitation disclosure)
• Illinois State Bar Association Opinion 96-10 (Internet definitions)
• Los Angeles County Bar Formal Opinion 392 (letterhead)
• California State Bar Formal Opinion 1997-148 (multistate practice, footnote)
• Kentucky Rule 7.01 (advertising directed at Kentucky residents)
• ABA Commission on Advertising, White Paper on Advertising and the Internet (July 1998)

See also

• CA COPRAC Op. 2013-189: Deceit in Contract Drafting
• CA COPRAC Op. 2014-191: Concurrent Representation Debtor-Creditor
• CA COPRAC Op. 2015-193: E-Discovery Competence

Source

• Landing page: https://www.calbar.ca.gov/legal-professionals/ethics-compliance-practice-resources/ethics/ethics-opinions
• Original HTML: https://www.calbar.org/ethics/Opinions/2001-155.htm

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

THE STATE BAR OF CALIFORNIA

STANDING COMMITTEE ON

PROFESSIONAL RESPONSIBILITY AND CONDUCT

FORMAL OPINION NO. 2001-155

ISSUES:

What aspects of professional responsibility and conduct must an attorney consider when providing an Internet web site containing information for the public about her availability for professional employment?

DIGEST:

An attorney's Internet web site providing to the public information about her availability for professional employment is a "communication" under rule 1-400(A) of the Rules of Professional Conduct and an "advertisement" under Business and Professions Code sections 6157 to 6158.3. As such, it is subject to the applicable prohibitions on false, misleading, and deceptive messages. The content of the pages constituting the web site must be prepared carefully to satisfy these rules. This applies to the words that make up the message and to the images and sounds which are part of the presentation. Under the facts presented, the web site is not a "solicitation" under rule 1-400(B) even if it includes electronic mail facilities allowing direct communication to and from the attorney. The attorney also must be aware of the possibility that the web site might be subject to regulation by other jurisdictions or that it might be considered the unauthorized practice of law in other jurisdictions.

AUTHORITIES INTERPRETED:

Rules 1-100, 1-300, and 1-400 of the California Rules of Professional Conduct.

Business and Professions Code sections 6157, 6157.1, 6157.2, 6158, 6158.1, 6158.2, and 6158.3.

STATEMENT OF FACTS

Attorney A has established and maintains an Internet web site. The web site includes a description of Attorney A's law firm and its history and practice; the education, professional experience, and activities of the firm's attorneys; law-related images; and an electronic mail form allowing for communication to any attorney in the firm. The firm is in private practice. The web site's text and pictures describe and illustrate various aspects of the firm's practice, providing the kind and scope of information normally found in printed lawyer directories. The web site is found easily by using any of the several search engines available to Internet users, and it is publicly accessible to anyone in any location who has Internet access. The web site does not include live video interactivity, a bulletin board, links to other law-related web sites, or news group functions.

DISCUSSION

Each new form of communication requires consideration of how its use by members of the California State Bar (hereinafter "members") might be affected by the Rules of Professional Conduct (hereinafter "rules") and the State Bar Act. While most forms of communication are either geographically local (commercial radio) or one-way (television, cable, and print media), the Internet provides the member easy and simultaneous access to people all over the world, with the possibility of two-way communications. In this opinion, we consider ethical implications of the attorney's Internet web site described in the statement of facts.

A. Communications Within California

The principal issue raised by Attorney A's Internet web site is its status as advertising or solicitation under rule 1-400. Rule 1-400(A) defines a "communication" as "any message or offer made by or on behalf of a member concerning the availability for professional employment . . . directed to any former, present, or prospective client, including but not limited to the following: . . . (2) Any . . . brochure or other comparable written material describing such member, law firm, or lawyers; or . . . (3) Any advertisement (regardless of medium) of such member or law firm directed to the general public or any substantial portion thereof . . . ."

We conclude that Attorney A's web site is a "communication" within the meaning of rule 1-400(A). We believe that this conclusion is not altered by the fact that the web site is accessed by a curious individual rather than being "directed" to that person, just as a lawyer's posted handbill is a "communication" even though individuals must choose to read it in order for the message to be communicated. We also believe that this conclusion is not altered by the inclusion in the web site of information and material of general public interest. The web site fits within the scope of rule 1-400(A) because it concerns the firm's availability for professional employment; the web site is directed to the general public. Rule 1-400(A)(3) includes within the definition of "communication" every advertisement "regardless of medium."

For these reasons, we believe that Attorney A's web site must conform to all of the rules governing "communications." This includes the requirements that the communication must not be false or misleading (rule 1-400(D)(1), (2), and (3)) and must not fail to indicate clearly, expressly, or by context, that it is a communication (rule 1-400(D)(4)). The relevant standards adopted by the Board of Governors under rule 1-400(E) also apply.

Rule 1-400(F) adds the requirements that the attorney retain for two years copies or recordings of any communications by written or electronic media and that these copies or recordings be made available to the State Bar if requested. These requirements apply to each page of every version and revision of the web site.

Because the web site is a "communication," we next must consider whether it also is a "solicitation" under rule 1-400(B). Rule 1-400(B) defines a "solicitation" as any communication:

"(1) Concerning the availability for professional employment of a member or a law firm in which a significant motive is pecuniary gain; and

"(2) Which is;

(a) delivered in person or by telephone, or

(b) directed by any means to a person known to the sender to be represented by counsel in a matter which is a subject of the communication."

We conclude that Attorney A's web site is not a "solicitation" under rule 1-400(B). Even if we presume that pecuniary gain is a significant motive in establishing and maintaining the Internet web site, in this situation the requirements of subparagraph (B)(2) are not met. Those requirements are stated in the alternative and can be met under either (B)(2)(a) or (B)(2)(b). Under (B)(2)(a) the requirements are met only if the communication is "delivered in person or by telephone." This language is specific and was intended as a "bright line" test that lawyers and disciplinary bodies can understand and apply easily. On one side of the line are certain solicitations, including some made in person or by telephone, which have been found to be "inherently capable of abuse" and which may be prohibited consistent with the First Amendment. (State Bar, Request That the Supreme Court of California Approve Amendments to the Rules of Professional Conduct of the State Bar of California and Memorandum and Supporting Documents in Explanation (1987) at p. 18, citing Ohralik v. Ohio State Bar Association (1977) 436 U.S. 447, and In Re R.M.J. (1982) 455 U.S. 191. (Cf. Edenfield v. Fane (1993) 507 U.S. 761, 773-77, in which the Court held that the reasoning behind its approval in Ohralik, of Ohio's ban on in-person solicitation by lawyers, does not apply to similar Florida CPA regulations because, among other things, CPA's are trained in independence and objectivity, not advocacy and persuasion.) On the other side of the line are communications which may not be prohibited under the First Amendment and which therefore are subject only to regulations that deal with such things as false or misleading statements.

We further conclude that neither the nature of the website communication nor the nature of the technology it employs to reach readers requires a different result. Although e-mail communication as part of website technology permits faster responses and more interaction than is possible with other forms written communication, it does not create the risk that the attorney might be able to use her persuasive ability and experience to influence unduly the potential client's thoughtful decision to hire her. Similarly, although e-mail can be transmitted through telephone lines, its resemblance to a telephone discussion ends with the mechanism of transmission. The static nature of an e-mail message allows a potential client to reflect, re-read, and analyze; the written form allows the potential client to share and discuss the communication with others and maintain a permanent record of its contents; and the mechanical steps involved in sending and receiving messages impose a measured pace on the interchange.

The alternative requirement of subparagraph (B)(2)(b), that the communication is directed "to a person known to the sender to be represented by counsel in a matter which is a subject of the communication," is not met by a communication that is made available to everyone, but directed to no one in particular. In addition, this requirement includes only communications that are initiated by the attorney. It was not intended that there be any ban on a new client's contacting a lawyer, for example, in order to seek a "second opinion." The attorney is not the initiator of the communication merely because she includes e-mail facilities in her web site any more than if she printed her telephone number and e-mail address in a printed advertisement, law directory, or telephone book. If a visit to the web site were to lead to a response by Attorney A, now directed to an identified person, that response would be a solicitation under rule 1-400(B)(2)(b) only if the person is "known to the sender to be represented by counsel in a matter which is a subject of the communication." If this requirement is met, then the communication is a solicitation if "directed by any means . . . ."

We conclude that Attorney A's web site, in addition to complying with the rules applicable to communications, must comply with the relevant requirements of Business and Professions Code sections (hereinafter "sections") starting at section 6157. Those sections contain various standards and restrictions regarding lawyer advertising. Section 6157, subdivision (c) defines advertising as "any communication, disseminated by television or radio, by any print medium . . . or by means of a mailing directed generally to members of the public and not to a specific person, that solicits employment of legal services provided by a member . . . ." This definition effectively is broadened by section 6158 to include advertising by any "electronic media," which section 6157, subdivision (d) defines to include computer networks.

Among other things these sections prohibit any advertising that is false or misleading (6157.1) or contains any guaranty of outcome or promise of quick payment (6157.2). Sections 6158.1 and 6158.2 establish categories of advertising that are presumed to violate or not to violate section 6158. It is particularly important to note that section 6158 explicitly recognizes that the message of electronic media "means the effect in combination of the spoken word, sound, background, action, symbols, visual image, or any other technique employed to create the message." Section 6158 provides that the "message as a whole may not be false, misleading, or deceptive, and the message as a whole must be factually substantiated."

The concerns and requirements described above apply to the activities of Attorney A in California, and apply equally to foreign attorneys in California in their "communications" in California about their availability to provide legal services in California for pecuniary gain. Rule 1-100(D)(2) states that the rules apply to lawyers from other jurisdictions who are not members of the California Bar "while engaged in the performance of lawyer functions in this state . . . ." It appears, however, that sections 6157 to 6158.3 do not apply to foreign attorneys. This is because section 6157, subdivision (c) defines the key terms "advertise" and "advertisement" only with regard to the availability of "a member" to provide legal services, and "member" is defined by section 6157, subdivision (a) as a member of the State Bar of California.

2. Interstate Communications

Rule 1-100(D)(1) addresses the implications of Attorney A communicating outside of California. It states: "These rules shall govern the activities of members in and outside this state, except as members lawfully practicing outside this state may be specifically required by a jurisdiction in which they are practicing to follow rules of professional conduct different from these rules." Rule 1-300(B) states: "A member shall not practice law in a jurisdiction where to do so would be in violation of regulations of the profession in that jurisdiction."

In order to avoid violating these rules, Attorney A must be aware of the conflicts among the rules of different jurisdictions, and she must comply with the rules of each jurisdiction that apply to her and impose additional or stricter requirements than those found in California. She must recognize the possibility that the advertising rules of other jurisdictions may apply to her Internet web site even if she is licensed only by California and intends to practice only in California.

This leaves two options for California attorneys who maintain Internet web sites for their law practices. They can choose to use their web site to advertise in multiple jurisdictions. This is not necessarily inappropriate, but it requires that they assure themselves that they are complying with any applicable rules of the different jurisdictions involved, including rules governing the unauthorized practice of law (assuming that there is no inconsistency in the applicable rules that would make this impossible). Alternatively, they can take steps to make clear that they are not advertising in other jurisdictions.

There is no certain method or form of notice that provides assurance that an attorney's Internet web site will not be found to be an advertisement, holding oneself out as available to practice law or the unauthorized practice of law in other jurisdictions. We make the following suggestions as examples of the kind of statements which, if accurate, might assist in avoiding regulation in other jurisdictions: 1) an explanation of where the attorney is licensed to practice law, 2) a description of where the attorney maintains law offices and actually practices law, 3) an explanation of any limitation on the courts in which the attorney is willing to appear, and 4) a statement that the attorney does not seek to represent anyone based solely on a visit to the attorney's web site.

Even these suggestions may not comply with the rules of other jurisdictions. For example, the Arizona State Bar Committee on Rules of Professional Conduct has stated in its Opinion Number 97-04 on Internet communications that under Arizona rule 8.5 (concerning the scope of disciplinary authority), a law firm must comply with the Arizona rules if it has an office in Arizona or has lawyers admitted to practice in Arizona. Similarly, the Iowa Supreme Court Board of Professional Ethics and Conduct has opined that an out-of-state law firm must meet with all the requirements of the Iowa Code of Professional Responsibility for Lawyers if it advertises that it has a branch office in Iowa or "that certain firm members are licensed to practice in Iowa." (Iowa Formal Opn. No. 96-14). California attorneys should carefully review the rules of any other state that might be applicable to their activities.

CONCLUSION

While the rules and the State Bar Act do not address the Internet specifically, their advertising rules and restrictions apply to Internet web sites as much as they do to other forms of communication. The web site contents, including its words, sounds, and images, must be chosen carefully to satisfy all applicable California requirements.

Also the Internet makes cross-jurisdictional practice easier and increases the risk that a California attorney's advertising will be deemed to violate the rules of other jurisdictions or be considered to be the unauthorized practice of law in other jurisdictions. Current authority suggests that attorneys should be especially sensitive to the rules of other jurisdictions if they are licensed to practice or maintain an office in another state or if they seek clients or provide legal services in another state.

This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of the State Bar of California. It is advisory only. It is not binding on the courts, the State Bar of California, its Board of Governors, any persons or tribunals charged with regulatory responsibilities, or any member of the State Bar.