Is a bar association's online member directory with links to lawyers' web pages a referral service, and when do lawyer web sites count as advertising or solicitation?
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This page answers the general question as of 1998. Ezel answers yours: whether it's allowed on your facts, under the current Massachusetts Rules of Professional Conduct, with citations.
Plain-English summary
A bar association planned a public web site carrying association news and a searchable membership directory, with listings of basic biographical and professional information and "hot links" to members' own home pages, which the association did not monitor. The committee resolved the ethics questions by analogizing the new technology to traditional advertising tools.
It first held that lawyers could participate in a computerized directory under Rule 7.1 so long as their listings were not false or misleading, treating a computerized directory as just another means of conveying the same information lawyers had long published in written bar directories (subject to Rule 7.4 on claims of specialization). It then held that the directory was not a "lawyer referral service" under Rule 7.3(e), because a referral service directs an inquirer to a particular attorney at the service's discretion, whereas a directory simply compiles information the client uses to select counsel himself.
On individual lawyer web pages, the committee drew a line. A typical informational home page was analogous to a Yellow Pages listing and need not be labeled "advertising" under Rule 7.3(c), but because it used public media to advertise services under Rule 7.2(a), the two-year retention requirement of Rule 7.2(b) applied. By contrast, a site that recorded visitors' Internet addresses to send further targeted solicitations became a proactive marketing tool that was "solicitation of professional employment" under Rule 7.3 and had to be labeled "advertising" and retained. And a site offering concurrent "real time" interaction, such as a chat room, was subject to the direct-solicitation limits of Rule 7.3(d), so particularized information could be provided only after an initial inquiry from the prospective client.
The committee added that the association was not obligated to monitor members' linked pages for ethical compliance, any more than it would police members' brochures or letterhead, since each sponsoring lawyer remained responsible for its own page. Given the interstate reach of the web, it recommended that the association encourage members to list complete and current bar-admission information so out-of-state visitors would not be misled about where a listed lawyer was licensed. (The committee was evenly divided, and offered no guidance, on whether a site promoted by targeted e-mail with a direct link also had to be labeled "advertising.")
Currency note
This opinion was issued in 1998, before Massachusetts's adoption of the 2015 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.
Common questions
Q: Was a bar association's online member directory a lawyer referral service?
A: No. The committee concluded that Rule 7.3(e) reaches a service that directs inquirers to a particular attorney at the service's discretion, while a directory only compiles information a prospective client uses to choose counsel himself.
Q: Did a lawyer's informational web page have to be labeled "advertising"?
A: The committee concluded a typical informational page, analogous to a Yellow Pages listing, need not be labeled "advertising" under Rule 7.3(c), but it had to be retained for two years under Rule 7.2(b) because it used public media to advertise services.
Q: When did a lawyer's web site cross into "solicitation"?
A: The committee concluded that a site recording visitors' addresses for targeted follow-up solicitations, or one allowing real-time interaction such as a chat room, fell under the solicitation rules of Rule 7.3 (including the labeling and retention requirements of subsection (c) and the direct-contact limits of subsection (d)).
Q: Did the bar association have to monitor members' linked pages?
A: No. The committee concluded the association had no more duty to police linked home pages than it would to police members' brochures or letterhead; each sponsoring lawyer or firm was responsible for its own page's compliance.
Background and rules framework
The opinion applied Mass. R. Prof. C. 7.1 (false or misleading communications about a lawyer's services), 7.2 (advertising, including the two-year retention requirement in paragraph (b)), 7.3 (solicitation, including the labeling and retention rules in subsection (c) and the direct-contact limits in subsection (d), and the referral-service provision in subsection (e)), and 7.4 (claims of specialization). These corresponded to the Massachusetts advertising rules that took effect January 1, 1998, modeled on the Model Rules of the same numbers as they stood at the time.
Citations and references
Rules of Professional Conduct:
- Model Rule 7.1 / Mass. R. Prof. C. 7.1 (false or misleading communications)
- Model Rule 7.2 / Mass. R. Prof. C. 7.2(a), (b) (advertising; two-year retention)
- Model Rule 7.3 / Mass. R. Prof. C. 7.3(c), (d), (e) (solicitation; labeling and retention; direct contact; referral services)
- Mass. R. Prof. C. 7.4 (communication of fields of practice and specialization)
See also
- MA Bar Ethics Op. 08-01: Referral networking clubs
- MA Bar Ethics Op. 07-01: Unsolicited email through a firm web site
Source
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