How do West Virginia's advertising and solicitation rules apply to a lawyer's website, email, newsgroup postings, and chat-room contacts?

Plain-English summary

The Lawyer Disciplinary Board addressed how West Virginia's advertising and solicitation rules applied to online communications: websites, email, newsgroup messages, and chat rooms. After studying resources including an ABA Commission on Advertising White Paper, the Board determined that the Rules should be amended to address computer advertising explicitly, and that the existing Rules provided interim guidance. The opinion stated that West Virginia's Rules apply to electronic communications about the services of any lawyer who practices in West Virginia regardless of where the communication originates, and to communications from out-of-state lawyers sent or directed specifically to West Virginia residents (citing Lawyer Disciplinary Board v. Allen).

On websites, the Board concluded a web site is "obviously a form of advertising through the public media." Because users must affirmatively go to a site, there is no possibility of coercion or harassment, and a user understands the site is advertising. Sites still had to conform to the other rules, including Rule 7.1 (misleading communications), Rule 7.2(d) (responsible-attorney requirement), and Rule 7.5 (firm names and letterheads). A multistate firm had to adhere to the most restrictive standard among its jurisdictions, and the firm had to be careful that any sites it expressly linked to did not contain false or misleading information.

On email and newsgroup messages, the Board found these could be a form of written solicitation governed by Rule 7.3(b) and (c). The opinion stated this would require a lawyer soliciting professional employment from a prospective client to include "ADVERTISING MATERIAL" in the heading of an email or newsgroup communication, so the recipient could choose to open it or discard it. While the Board had previously allowed omission of the label when mailing to a market not necessarily known to be in need of legal services, it strongly recommended that all email messages and newsgroup postings carry the "ADVERTISING MATERIAL" designation in the heading, given the ease and low cost of email.

On spamming and chat rooms, the Board concluded that "spamming" can be a form of solicitation involving harassment (the user may incur costs, and blanket newsgroup marketing interferes with discussion). The Board concluded that solicitations via real-time communications such as a chat room should be treated like telephone and in-person solicitations: real-time communication is more immediate, intrusive, and persuasive than email, so the Board considered Rule 7.3(a) to prohibit a lawyer from soliciting potential clients through real-time communications the lawyer initiates.

Currency note

This opinion was issued in 1998, before the West Virginia Supreme Court of Appeals' comprehensive 2015 revision of the West Virginia Rules of Professional Conduct (effective January 1, 2015). 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 lawyer's website treated as advertising or as solicitation under the West Virginia rules?

A: As advertising through the public media. The Board reasoned that because users must affirmatively visit a site, there is no coercion or harassment, so a website is like a brochure or promotional video, subject to the truthfulness and firm-name rules.

Q: Did a lawyer have to label email solicitations?

A: The opinion stated that email soliciting professional employment from a prospective client should include "ADVERTISING MATERIAL" in the heading, and the Board strongly recommended that all email and newsgroup postings carry that designation.

Q: Could a lawyer solicit clients in a real-time chat room?

A: No, for solicitations the lawyer initiates. The Board considered Rule 7.3(a) to prohibit soliciting potential clients through real-time communications initiated by the lawyer, treating chat like banned in-person or telephone solicitation.

Q: Did West Virginia's rules reach out-of-state lawyers online?

A: The opinion stated the Rules apply to electronic communications from lawyers not licensed in West Virginia that are sent or directed specifically to West Virginia residents.

Background and rules framework

The opinion interpreted West Virginia's advertising and solicitation rules as they stood in 1998. Rule 7.1 (Model Rule 7.1) barred false or misleading communications about a lawyer or the lawyer's services. Rule 7.2 (Model Rule 7.2) governed advertising, including a responsible-attorney requirement and record-keeping. Rule 7.3 (Model Rule 7.3) governed direct contact with prospective clients: paragraph (a) barred in-person or telephone solicitation for pecuniary gain where the lawyer had no family or prior professional relationship, and paragraphs (b) and (c) permitted written or recorded solicitation subject to caveats including the "Advertising Material" label and a two-year retention requirement. Rule 7.5 (Model Rule 7.5) governed firm names and letterheads.

The Board flagged that the Rules should be amended to address computer advertising explicitly, treating its analysis as interim guidance under the then-current rules.

Citations and references

Rules of Professional Conduct:

• Model Rule 7.1 / WV Rule 7.1 (false or misleading communications)
• Model Rule 7.2 / WV Rule 7.2(d) (advertising; responsible-attorney requirement)
• Model Rule 7.3 / WV Rule 7.3(a), (b), (c) (direct contact with prospective clients; "Advertising Material" label)
• Model Rule 7.5 / WV Rule 7.5 (firm names and letterheads)

Cases:

• Lawyer Disciplinary Board v. Allen, 198 W. Va. 18, 479 S.E.2d 317 (1996), reach of the Rules to communications directed to West Virginia residents

Other authority:

• American Bar Association Commission on Advertising, White Paper on computer advertising

See also

• CA COPRAC Op. 2001-155: Law Firm Website Advertising
• ISBA Op. 96-10: Email and Lawyer Websites
• ISBA Op. 12-04: Labeling Direct Solicitations as Advertising Material
• Alabama Ethics Op. 2003-01: Various Advertising Issues

Source

• Landing page: https://wvodc.org/Legal-Ethics-Opinion
• Original PDF: https://storage.googleapis.com/msgsndr/Rgd68xOkcVdteTsBkf6O/media/66a7ea7d1b325d9aed97afee.pdf

Original opinion text

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

L.E.I. 98-03

ATTORNEY ADVERTISING ON THE INTERNET

With the proliferation of personal computers and internet access, attorneys have struggled to apply ethical standards to advertising and solicitation by computer. The most common form of attorney advertising is a Web site. Other potential means include sending e-mail to individual users or "spamming", which is a form of unsolicited electronic mass mailing annoying to users; leaving messages in news groups and participating in "chat rooms", where users communicate in written form back and forth in real time.

After studying various resources, including a comprehensive White Paper by the American Bar Association Commission on Advertising, (currently accessible at http://www.abanet.org/legalserv/advertising.html), the Lawyer Disciplinary Board determined that (1) the Rules of Professional Conduct should be amended to address computer advertising explicitly; and (2) the current Rules of Professional Conduct provide some guidance in the interim as set forth below.

The Board is of the opinion that web sites, news groups and e-mail are potential forms of attorney advertising and/or solicitation which are governed by the prevailing ethical standards in each jurisdiction. West Virginia's Rules of Professional Conduct apply to electronic communications about the services of any attorney who practices in West Virginia, regardless of where the communication originates. If a web site promotes a West Virginia law firm, for example, it does not matter where web site is maintained. If the firm is a multistate firm, it must adhere to the most restrictive standards among those jurisdictions. The firm must also be careful that any other web sites to which it is expressly linked does not contain false or misleading information.

The Board is further of the opinion that West Virginia's Rules of Professional Conduct apply to electronic communications from lawyers not licensed in West Virginia sent or directed to West Virginia residents specifically. See Lawyer Disciplinary Board v. Allen, 198 W. Va. 18, 479 S.E.2d 317 (1996).

West Virginia's Rules of Professional Conduct currently separate advertising and solicitation into two groups: (1) in-person and telephonic contacts; and (2) public media and written or recorded communication. The first type of solicitation is banned absolutely with respect to those individuals with whom a lawyer has no family or prior professional relationship.[1] The second type is permitted under Rule 7.3(b) and (c) with certain caveats:

i. The solicitation cannot involve coercion, duress or harassment.

ii. The prospective client has not already made known to a lawyer a desire not to be solicited.

iii. Every written or recorded communication from a lawyer soliciting professional employment from a prospective client known to be in need of legal services in a particular matter shall include the words "Advertising Material" on the outside envelope and at the beginning and ending of any recorded communication. A copy of said communication must be kept for two years.

Web sites are obviously a form of advertising through the public media. Because users must affirmatively go to a Web site, there is no possibility of coercion or harassment, and a user understands that a Web site is a form of advertising, similar to a brochure or promotional video. Lawyers must make sure, however, that the material contained therein conforms to the other advertising and solicitations rules in the Rules of Professional Conduct, such as Rules 7.1 (misleading communications), 7.2 (d) (responsible attorney requirement) and 7.5 (firm names and letterheads).

The Lawyer Disciplinary Board also finds that e-mail and messages left in news groups can be a form of written solicitation governed by Rule 7.3(b) and (c).[2] This would require an attorney who is soliciting professional employment from a prospective client to include the words "ADVERTISING MATERIAL" in the heading for an e-mail or news group communication. That way, when the e-mail message or news group posting comes up, the receiver has the option of opening it or putting in the electronic trash without reading it, just like the recipient of mail has.

In the past, the Lawyer Disciplinary Board has interpreted the Rules of Professional Conduct to permit an attorney to omit the words "ADVERTISING MATERIAL" on the outside of an envelope if the attorney is mailing to a market not necessarily known to be in need of legal services, such as a geographic area or a legally obtained list of customers. Because of the ease and low cost of sending e-mail, the Board has concerns about recipients being inundated with solicitations and being forced to review them all to make sure that a lawyer is not trying to communicate personally with the user on a current matter. The Board therefore strongly recommends that all e-mail messages and news group postings have the "ADVERTISING MATERIAL" designation as part of the heading.

The Board is also of the opinion that "spamming" can be a form of solicitation involving harassment. It is important to remember that the user may incur costs in retrieving e-mail messages or news group postings, such as time spent on the internet and space on a hard drive. Moreover, news groups usually focus on a particular topic, and a blanket marketing of one's services in numerous news groups simultaneously, regardless of the relevancy, generally interferes with the ongoing discussion.

The Board is of the opinion that solicitations via real time communications on the computer, such as a chat room, should be treated similar to telephone and in-person solicitations. Although this type of communication provides less opportunity for an attorney to pressure or coerce a potential client than do telephone or in-person solicitations, real-time communication is potentially more immediate, more intrusive and more persuasive than e-mail or other forms of writing. Therefore, the Board considers Rule 7.3(a) to prohibit a lawyer from soliciting potential clients through real-time communications initiated by the lawyer.

APPROVED by the Lawyer Disciplinary Board on the 16th day of October, 1998.

David J. Romano, Chairperson
Lawyer Disciplinary Board
State of West Virginia

[1] Rule 7.3. Direct Contact with prospective clients.
(a) A lawyer shall not by in-person or telephone contact solicit professional employment from a prospective client with whom the lawyer has no family or prior professional relationship when a motive for the lawyer's doing so is the lawyer's pecuniary gain.
[2] (b) A lawyer shall not solicit professional employment from a prospective client by written, or recorded communication or by in-person or telephone contact even when not otherwise prohibited by paragraph (a), if:
(1) the prospective client has made known to the lawyer a desire not to be solicited by the lawyer; or
(2) the solicitation involves coercion, duress or harassment.
(c) Every written or recorded communication from a lawyer soliciting professional employment from a prospective client know to be in need of legal services in a particular matter shall include the words "Advertising Material" on the outside envelope and at the beginning and ending of any recorded communication and shall be maintained as required by Rule 7.2(b).