FACTS[1]
An Association of Lawyers (hereinafter "AL") is inquiring about the ethical implications of placing its membership directory on its Internet site. The proposed AL directory would list the names, addresses, telephone and fax numbers, and e-mail addresses for each of the thousands of AL members by state. In addition, there is a separate listing of the same information by state in the directory for members of each of the AL's various practice sections, including: Admiralty Law; Aviation Law; Civil Rights; Commercial Litigation; Criminal Law; Employment Rights; Family Law; Federal Tort Liability & Military Advocacy; Insurance; International Practice; Motor Vehicle Collision; Highway & Premises Liability; Products Liability; Professional Negligence; Railroad Law; Toxic, Environmental & Pharmaceutical Torts; Small Office Practice; Social Security Disability Law; and Workers' Compensation & Workplace Injury.
Two other categories of members have additional information listed. Life members are listed separately. In addition to the information listed for other members, the life members also have the following listed: schools attended with graduation dates and degrees; public or quasi-public offices; military service; memberships, offices and committee assignments in bar associations, legal organizations and public interest organizations; board certifications; honors; articles and books; and areas of practice. A more limited version of this information is included in the listing of Sustaining Members.
Do the Arizona Rules of Professional Conduct place any limitations on including any of this practice area information on the AL directory, which is publicly available on the AL Internet site?
A lawyer shall not:
(a) practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction;
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(d) The following information in advertisements and written communications, if truthful, shall be presumed not to violate the provisions of ER 7.1:
(1) the name of the lawyer or law firm…office addresses and telephone numbers;
(2) date of admission to the State Bar of Arizona and any other bar associations and a listing of federal courts and jurisdictions other than Arizona where the lawyer is licensed to practice;
(3) technical and professional licenses granted by the state or other recognized licensing authorities;
(5) fields of law in which the lawyer is certified subject to the requirements of ER 7.4;
(10) schools attended, with dates of graduation, degrees and other
scholastic distinctions;
(11) public or quasi-public offices;
(12) military service;
(13) legal authorships;
(15) memberships, offices and committee assignments in bar associations;
(16) memberships and offices in legal fraternities and legal societies;
(17) memberships in scientific, technical and professional associations and societies;
(c) no lawyer shall state or imply that the lawyer is a specialist in any area of law unless the lawyer has been certified by the Arizona Board of Legal Specialization or is certified by a national entity which has standards for certification substantially the same as those established by the board…
The application of the Arizona Rules of Professional Conduct ("ER") to legal activities on the Internet has given rise to a challenging new area of legal ethics. This Ethics Committee already provided some very general guidance in this area. See generally, Ariz. Op. 97-04 (1997). The present inquiry deals with the permissible content of legal directories on publicly accessible web sites.
The Massachusetts Bar Association Committee on Professional Ethics dealt with a similar inquiry. The Massachusetts Committee reached the conclusion that the Rules of Professional Conduct permitted a bar association to establish a World Wide Web site that contained a publicly-accessible membership directory, as well as "hot links" to the web sites of individual members. See Mass. Bar Assn. Comm. on Prof. Ethics Op. 98-2 (May 1998).
ER 7.1 of the Arizona Rules of Professional Conduct begins with the general prohibition that "[a] lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services." The communications referred to would include legal directories posted on a publicly accessible web site. Lawyers traditionally have been permitted to provide basic professional and biographical information in written legal directories so long as these listings are truthful and do not tend to misinform. Computerized legal directories convey the same information. Thus, subject to the provisions of ER 7.4, it is permissible for the AL to publish its membership directory on its web site, so long as the information in the directory is not "false or misleading."
Section (d) of ER 7.1 states that "the following information in advertisements and written communications, if truthful, shall be presumed not to violate the provisions of ER 7.1". Included in the list of information "presumed not to violate" ER 7.1 are many of the items listed in the AL directory: names, addresses, and phone numbers of the AL members; schools attended with dates of graduation and degrees received; public or quasi-public offices held; military service; memberships, offices and committee assignments in bar associations and legal organizations; and articles and books published. Section (i) of ER 7.1 addresses legal directories even more explicitly:
Nothing in this rule prohibits a lawyer or law firm from permitting the inclusion in reputable law lists and law directories intended primarily for the use of the legal profession of such information as has traditionally been included in these publications, subject to the requirements of these rules.
The fact that the AL directory will be available on the AL's publicly accessible web site, and may be used by the general public for the purpose of selecting legal counsel does not make the directory a lawyer referral service. A publicly accessible legal directory is simply a compilation of useful information that a prospective client may use when selecting counsel. Lawyer referral services, which are restricted by the Rules of Professional Conduct, involve service organizations that direct potential clients to a group of participating attorneys. ER 7.1(r)(3). The AL directory does not provide this function. Thus, the Rule relating to lawyer referral services does not pertain to the proposed AL directory.
ER 7.4 governs communications about fields of practice. The Rule is concerned with attorneys who state or imply that they are specialists in certain fields of the law. ER 7.4 severely restricts the areas in which a lawyer can claim to specialize. According to ER 7.4, "a lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law." However, it can only be stated, or implied, that a lawyer is a specialist if the lawyer is a registered patent attorney, is engaged in admiralty practice, or has been certified by the Arizona Board of Legal Specialization or is certified by a national entity, which has standards of certification substantially the same as those established by the board. See ER 7.4(a)(b)(c).
The proposed AL directory by state that would divide members into various practice sections, could be interpreted as implying that the lawyers listed in each practice section were specialists in the field. While not mandated by ER 7.4, it is recommended that the web site contain some disclaimer language making it clear that the lawyers listed in each practice area are not necessarily specialists.
Information on an Internet site has a far wider geographical reach than traditional printed legal directories. This creates some potential jurisdictional and unauthorized practice of law problems. ER 5.5(a). A person in another state who accesses the AL directory might somehow be misled into thinking that the listed lawyers are licensed to practice in their jurisdiction. In order to avoid any confusion, it is recommended that the AL directory include current bar admission information for each of the listed members.
The Arizona Rules of Professional Conduct permit the AL to place its membership directory on the AL Internet site. If the attorneys are listed by fields of practice, AL is not required to, but may want to, include a disclaimer stating that the listed attorneys practice in these fields of law but are not necessarily specialists. Similarly, given the interstate reach of the Internet, it would be wise to include bar admission information for each listed attorney.
[1] Formal Opinions of the Committee on the Rules of Professional Conduct are advisory in nature only and are not binding in any disciplinary or other legal proceedings. © State Bar of Arizona 1999