How The CAN-SPAM Act of 2003 Affects Electronic Communication By Lawyers

Article

William R. Denny

The requirements of CAN-SPAM and state ethics rules aren’t identical.  So which do you follow?  Both.

IN A NOW FAMOUS incident, attorney Laurence Canter placed an electronic advertisement on the Internet that reached more than 5,000 Internet groups and many thousands of email addresses.  Mr. Canter’s April 1994 unsolicited electronic message offered to help almost anyone obtain a green card.  The Tennessee Supreme Court’s Board of Professional Responsibility determined that Mr. Canter’s conduct violated numerous ethics rules and suspended him from practicing law for one year.  Although the Canter case represents extreme misuse of email communication, over the past decade, state bars have been faced with increasingly frequent questions regarding the ethics of email advertising.

• CAN-SPAM only applies to electronic communications whose “primary purpose” is commercial, rather than to “transactional or relationship” communications.

As every lawyer realizes, electronic communication with clients is no longer a cutting-edge novelty.  It is standard business and marketing practice.  Electronic newsletters, alerts, and bulletins are an important part of keeping and generating business.  They are not going away.

These communications implicate the ethics rules governing advertising.  They also implicate the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (“CAN-SPAM”).  Since it is a federal law, CAN-SPAM applies to electronic communications received anywhere within the United States, regardless of the location of the sender.  Things get tricky, however, when trying to figure out which ethics rules apply.  As it now stands, four states continue to operate under some version of the ABA Model Code of Professional Responsibility, first promulgated in 1969.  Thirty-seven states have some version of the ABA Model Rules of Professional Conduct.  Nine states have their own unique ethics rules.  To confuse matters further, each state has its own variant of ethics rules.  While some states expressly recognize and regulate electronic communication through their ethics rules, other states have interpreted preexisting rules by comparing electronic communication to more traditional forms of communication.  Of the states using the Model Rules, some have adopted certain or most changes made by ABA’s Ethics 2000 Commission, including specific reference to electronic communications.

This article will not address every permutation of how the relevant ethics rules interact with CAN-SPAM.  Instead, it will give a general overview of CAN-SPAM, focus on the current version of the ABA Model Rules with the Ethics 2000 Commission revisions, and point out some of the more significant variations in how the ethics rules are applied among the states.  It will also address how advertising rules generally apply to sending e-newsletters and linking to web sites in email.

CAN-SPAM IN A NUTSHELL

Generally, CAN-SPAM regulates the character and transmission of unsolicited commercial email, popularly known as “spam.”  Specifically, CAN-SPAM prevents the sending of false or misleading message information.  It requires that messages be labeled as advertisements, and that recipients be given an “opt-out” option to avoid further contact.

CAN-SPAM only applies to electronic communications whose “primary purpose” is commercial, rather than to “transactional or relationship” communications.  To determine whether an electronic communication has a “commercial primary purpose,” the electronic communication must be evaluated according to the varying primary purpose tests established by the Federal Trade Commission (“FTC”).

• Primary Purpose

All electronic communications are “commercial” if the primary purpose of the communication is the “advertising or promotion of a commercial product or service.”  The FTC created four distinct categories of electronic communication, each with varying criteria to determine the primary purpose.

There are two types of single-purpose email.  First, email that has purely “transactional or relationship” content does not have a “commercial” primary purpose, making CAN-SPAM inapplicable.  Similarly, email containing purely “commercial” content has a “commercial primary purpose” and falls within CAN-SPAM regulation.

There are two types of dual-purpose email.  Email containing both “commercial” content and “transactional or relationship” content will have a “commercial primary purpose,” if:

• The subject line of the email would lead a recipient to reasonably conclude that the email contains commercial advertising or promotion of a commercial product or service; or
• The “transactional or relationship” content is not located, in whole or in substantial part, at the beginning of the email.

Finally, email containing “commercial” content and other content (not considered “transactional or relationship” or “commercial”) will have a “commercial primary purpose,” if:

• The subject line of the email leads a recipient to reasonably conclude that the email contains commercial advertising or promotion of a commercial product or service, or
• The body of the message leads a recipient to reasonably conclude that the email’s primary purpose is commercial advertisement or promotion of a commercial product or service.

Factors to consider include location of the “commercial” content, the proportion of the email devoted to the “commercial” content, and the formatting used to bring attention to the “commercial” content (e.g., color, graphics, type size, style).  Though CAN-SPAM does not directly mention lawyers, lawyers often send email that might be considered to have a “commercial primary purpose.”

• Preemption Of State Ethics Rules

Except to the extent that state laws prohibit falsity or deception in messages or attachments, CAN-SPAM expressly supersedes any state rule regulating the use of electronic mail to send commercial messages.  Since all state ethics rules are couched in terms of the prevention of false or misleading communications, it appears that CAN-SPAM does not preempt any of the applicable state rules.  Instead, state ethics rules should be viewed as additions to the CAN-SPAM requirements for unsolicited commercial email.

At least one court has discussed the preemptive effect of the CAN-SPAM Act.  In White Buffalo Ventures v. The University of Texas at Austin, No. A-03-CA-296-SS, slip op. at 7 (W.D. Tex. Mar. 9, 2004), the court found that CAN-SPAM did not preempt the University’s preexisting email filtering of certain unwanted commercial solicitation.  Although this decision is not based on CAN-SPAM’s allowance for the continued viability of state rules that prevent falsity or deception, this decision suggests that the various requirements of state ethics rules regulating electronic communication in advertising are still valid.

As a result, lawyers who send common electronic communications to recipients in multiple states need to consider their obligations under CAN-SPAM and their obligations under the ethics rules of the state where the communications are sent.  Under the most current version of Model Rule 8.5, a lawyer is subject to the rules of the jurisdiction in which the “predominant effect” of the lawyer’s conduct occurred.  When sending an email solicitation to a potential client, the predominant effect is likely within the jurisdiction where the recipient is located.  Lawyers are subject to disciplinary authority both in the jurisdictions where they are admitted and in the jurisdictions in which they provide or offer to provide legal services.  Thus, it is critical for lawyers to consider CAN-SPAM as well as the most restrictive of the relevant ethics rules when sending commercial email to multiple states.

THE APPLICATION OF ETHICS RULES TO E-NEWSLETTERS

In addition to email, other common lawyer communications, such as electronic newsletters, alerts, and client bulletins, may also fall within the scope of CAN-SPAM.  These documents are typically drafted by attorneys, use the law firm name, and are distributed as a way to demonstrate the firm’s expertise and attract new business.  Before CAN-SPAM, the concern was whether e-newsletters were “solicitations” for purposes of the relevant state ethics rules.  All states that considered the issue concluded that e-newsletters sent to potential clients were solicitations subject to the ethics rules on advertising.  Although ethics opinions frequently distinguish between e-newsletters sent to clients and those sent to potential clients, these opinions simply conclude that e-newsletters sent to clients do not need to be marked as advertisements.  Are these newsletters also subject to CAN-SPAM?

THE APPLICATION OF CAN-SPAM TO ENEWSLETTERS

The first important question to ask under CAN-SPAM is whether the enewsletter is delivered pursuant to a subscription.  If the e-newsletter is delivered pursuant to a subscription, the newsletter is then considered “transactional or relationship” and does not fall within the purview of CAN-SPAM regulation.  A subscription implies that the recipient has agreed and expects that the e-newsletter will contain some commercial content; however, whether an e-newsletter is “transactional or relationship” is determined based on the recipient’s understanding.  Notwithstanding the recipient’s subscription agreement, an enewsletter will no longer qualify as “transactional or relationship” if the amount of commercial content exceeds a recipient’s reasonable expectations.  On the other hand, e-newsletters delivered without a subscription are unlikely to qualify as “transactional or relationship.”  As such, it then becomes necessary to evaluate the e-newsletter according to the appropriate primary purpose test.

Thus, CAN-SPAM presents a veritable landmine for attorneys.  Even when there is a subscription, attorneys must not include so much commercial content as to exceed a recipient’s reasonable expectation.  When there is no subscription, the e-newsletter is evaluated against a recipient’s reasonable interpretation according to the relevant primary purpose test. Attorneys should consider the subject line used and the font styles used to draw attention to the commercial material.

THE APPLICABLE STATE ETHICS RULES

Generally, state ethics rules governing lawyer communications and advertising will figure prominently in a CAN-SPAM analysis.  Relying on old state ethics rulings and opinions, however, is not enough.  To be safe, consider both the state ethical rules and CAN-SPAM.

• Rule 7.1: Communications

Rule 7.1 prohibits a lawyer from making a false or misleading communication about the lawyer or the lawyer’s services.  A statement is considered false and misleading if it contains a material misrepresentation of fact or law or omits a fact necessary to make the statement, considered as a whole, not materially misleading.  Thus, if presented in a misleading way, a truthful statement potentially violates the rule, as could an unsubstantiated comparison of the lawyer’s services or fees with the services or fees of another lawyer.

In contrast, CAN-SPAM only prohibits (and criminalizes) fraudulent statements.  CAN-SPAM also has additional requirements relating to fraud.  For example, email transmission information cannot be materially false or misleading.  Even if the transmission information is technically accurate, the communication is prohibited if the information was obtained in a fraudulent manner.  Lawyers should ensure that any outside services retained to send out e-newsletters comply with all of the provisions of CAN-SPAM, including accuracy in the headers, identity of the sender, and the subject line.

• Rule 7.2: Advertising

Rule 7.2 permits a lawyer to advertise services through written, recorded or electronic communication subject to the requirements of Rule 7.1 (misleading communications) and Rule 7.3 (solicitation). Rule 7.2 also contains a restriction.  It requires an advertisement to include the name and office address of at least one lawyer or law firm responsible for its content.  The requirement of an “office address” is not defined.  In Opinion 756 (2002), the New York Ethics Committee considered whether email or a web address would suffice as an “office address” under the rules.  The committee stated that a web address might mislead a recipient as to the lawyer’s proximity or jurisdiction.  Therefore, a lawyer’s email advertisement must contain a physical street address.  Similarly, CAN-SPAM requires that commercial emails include a “physical postal address.”

Many states retain record retention requirement from the previous version of Rule 7.2.  These record retention rules require lawyers to retain copies of all advertisements in addition to information concerning where and when the advertisements were used.  Periods of the required retention range from two to 10 years.  This onerous and unwieldy task is omitted from the current version of the Rule.  However, lawyers sending advertisements into those states are subject to their record retention rules.  Those who ignore the rules do so at their peril.

Earlier versions of Rule 7.2 as well as the Code of Professional Responsibility do not expressly regulate electronic communication.  The Ohio Code of Professional Responsibility, for example, does not mention electronic communication in its advertising section.  Without direct textual guidance, lawyers are faced with uncertainty about their obligations when using the Internet.  Although not necessarily indicative of how other states would follow the Code, an examination of the Ohio approach is instructive.

• Ohio’s Interpretation

Attorneys in Ohio are discouraged from sending unsolicited email advertising legal services.  See Ohio Sup. Ct. Bd. of Comm’rs, Op. 2004-1 (2004) (“attorneys are discouraged from, but not barred from, advertising their legal services through unsolicited email”).  The Ohio Supreme Court’s Board of Commissioners on Grievances and Discipline (the “Ohio Board”) considered whether it is proper for attorneys to advertise legal services by sending unsolicited email to potential clients.  Initially, the Ohio Board recognized the controversial nature of unsolicited commercial email and the often-deceptive techniques many senders use.  The Ohio Board noted that spamming had occurred in the legal profession.  It then outlined some of the provisions of the CAN-SPAM Act.  Although the Ohio Code does not mention internet communication, the Ohio Board took the position that its advertising rules apply to “all forms of public communication including email.”

• Special Rules For Direct Mail

The Ohio Board ruled that email is a form of direct mail advertising since email travels to a unique electronic mail address.  As a form of targeted direct mail advertising, email must satisfy the specific provisions of Ohio’s ethics rules, specifically DR 2-101(F)(2), 2-101(F)(4), and DR 2-101(H)(1).  Disciplinary Rule 2-101- (F)(2) requires, among other things, that both the text and the envelope carry the label “ADVERTISEMENT ONLY.”  When the direct mail solicitation is sent to a defendant in a civil action, DR 2-101(F)(4) requires the lawyer to first verify service upon that defendant.  When a lawyer communicates with a prospective client or a prospective client’s relative within 30 days of an accident that might give rise to a personal injury or wrongful death claim, DR 2- 101(H)(1) requires the inclusion of a pamphlet entitled Understanding Your Rights.

Next, the Ohio Board provided guidance on how lawyers should apply the direct mail restrictions to email communication.  The Board recognized the difficulty of the task.  Placing the warning “ADVERTISEMENT ONLY” on the subject line of the email as well as in the text satisfies DR 2-101(F)(2)(e).  However, simple labeling will not satisfy the requirements of DR 2-101(F)(4) and 2-101(H)(1).

• Unclear How To Comply

A lawyer or law firm using a database of email addresses to send e-newsletters or other advertising email has little way of knowing if email is going to a defendant in a civil action or a defendant not yet served.  Moreover, a broad database will not tell the attorney whether email is going to prospective clients within the 30-day period following an incident giving rise to personal injury or wrongful death claims.  Nevertheless, the Ohio Board advised attorneys to use due diligence to comply with Ohio’s ethics rules as well as any other applicable ethics rules, including CAN-SPAM.  Significantly, the Ohio Board did not elaborate on how to satisfy such due diligence.

According to the Ohio Board, attorneys are discouraged but not barred from advertising through unsolicited email pending amendment of the Ohio Code specifically to addresses unsolicited email advertising of legal services.  Until then, compliance with the requirements of Ohio Code with respect to email advertising appears impracticable, especially considering the absence of a definition for due diligence.  As a result, Ohio attorneys face substantial risk when advertising by email.

• CAN-SPAM Implications

CAN-SPAM would require labeling similar to the Ohio Code to avoid the transmission of false or misleading information.  However, under CAN-SPAM, the inclusion of “ADVERTISEMENT ONLY” as a subject line may run afoul of the prohibition against deceptive subject headings.  In addition, CAN-SPAM requires an opt-out feature, allowing the recipient to avoid future advertising.  In contrast, the Ohio Code requires attorneys to satisfy a number of conditions before contacting certain individuals.  Under either CAN-SPAM or the Ohio Code, if a potential client opts out of future advertising communication, the attorney will be required to take note of that email address to avoid further contact.

• Rule 7.3: Direct Contact With Prospective Clients

The new Model Rule 7.3, with the Ethics 2000 Commission revisions, makes clear the extent to which prohibitions on direct contact with prospective clients apply to electronic communications.  For example, the rule distinguishes electronic communications (such as email) from “real-time electronic contact” (such as chat rooms or instant messaging), prohibiting solicitation by real-time electronic contact except in the case that the prospective client is a lawyer or a close acquaintance.  Model Rule 7.3(c) includes electronic communications in its definition of written communications.  This rule also makes clear that the labeling of a solicitation as “Advertising Material” need only be at the beginning and ending of any electronic communication, and not in the subject line or on the outside of an envelope.  The Model Rule also has a requirement similar to CAN-SPAM’s opt-out requirement, prohibiting further solicitation in any form of a prospective client who has made known to the lawyer a desire not to be solicited.

Jurisdictions that have not adopted the Ethics 2000 Commission changes to Rule 7.3 provide another example of ethics rules not expressly regulating electronic communication, and create difficulties similar to those experienced in Ohio and other Model Code states.  Arizona’s interpretation is instructive.  Arizona’s Rules of Professional Conduct (the “Arizona Rules”) do not make any reference to the regulation of electronic communication.  In 1997, the State Bar of Arizona’s Committee on the Rules of Professional Conduct (the “Arizona Committee”), provided answers to certain questions about attorney activity on the Internet.

• Application Of Advertising Rules

Since there is no envelope or specific first page of text in an email, the Arizona Committee recognized that applying its advertising rules “pose[d] a slight dilemma for electronically transmitted solicitations.”  Attorneys in Arizona were advised to make a reasonable effort to comply with the Arizona Rules if technologically feasible.  The Arizona Committee suggested that, at a minimum, the disclaimer should be included in all capitals on the subject line of the email and in the body of the communication.

One question posited whether it was a violation of Arizona Rule 7.3 to contact a prospective client directly through email if the attorney knew that the client was in need of legal representation for a particular matter.  Arizona’s version of Rule 7.3 only requires labeling disclosures if the client is known to need legal advice.  The Arizona Committee advised that email and “chat room” communications should not be considered prohibited telephone or in-person solicitation.  The communications lacked aspects of immediacy and confrontation.  The Arizona Committee reasoned that potential clients reading emails or participating in “chat rooms” had the option of not responding.

The Arizona Committee went on to advise that email contact with a prospective client known to need legal services might well violate Arizona Rule 7.3(b).  That is, Arizona Rule 7.3(b) would be violated if the attorney initiated the contact and the client had a “known legal need for a particular matter” unless the attorney complied with the written communication requirements of the rule.  When applicable, Arizona Rule 7.3(b) requires the label “ADVERTISING MATERIAL: THIS IS A COMMERCIAL SOLICITATION” on the envelope and on the first page of text.

• CAN-SPAM Implications

Labeling requirements under CAN-SPAM are broader than the Arizona Rules.  Under CAN-SPAM, the content of the email helps the lawyer determine the appropriate subject line.  CAN-SPAM requires that all unsolicited commercial emails sent by attorneys be labeled so as to indicate that they are commercial.  In addition, the CAN-SPAM Act requires unsolicited commercial email to include an opt-out feature.  The Arizona Rules include a prohibition against future written communication, but the prohibition only applies “if it has been made known to the lawyer that the person does not want to receive such communications from the lawyer.”

• References To “Electronic Communications” Only Partially Helpful

Confusion exists even in jurisdictions that have amended portions of their Rules of Professional Conduct to include references to electronic communication.  Utah’s current Rules of Professional Conduct (the “Utah Rules”) contain a prohibition against real-time electronic contact within its rule against in-person solicitation.  The Utah Rule concerning written communication, however, is broadly worded and does not contain a specific reference to electronic communication.  In particular, Utah Rule 7.3-(c) requires that every written communication that a lawyer sends soliciting prospective clients include the words “Advertising Material” on the outside of the envelope and at the beginning of the communication.

• The CAN-SPAM Act creates an exception for e-newsletters that are sent pursuant to a subscription.  They are considered “transactional or relationship” communications.

In 2002, the Utah State Bar’s Ethics Committee (the “Utah Committee”) was asked to clarify the applicability of Utah Rule 7.3(c) to various law firm activities.  See Utah State Bar Comm., Op. 02-02 (2002).  The question centered on the internet-related activities of sending email, newsletters, brochures, advisories, and alerts to existing and prospective clients.  The Utah Committee responded that an email sent directly to a prospective client was similar to regular mailing.  Therefore, the mailing must include the legend “Advertising Material” at the beginning of the message.  Furthermore, electronic newsletters, advisories, alerts or brochures that extolled the firm’s expertise, encouraged the client to engage the firm, or encouraged the client to contact the firm were solicitations that required the proper warning.  When, however, the emails, enewsletters, advisories, alerts or brochures were sent to a current or former client, the advertising legend was unnecessary.  Utah, like the ABA Model Rules, creates an exemption for clients whom the attorney has or has had a professional relationship.  Mailings to those individuals do not require the advertisement warning.

The CAN-SPAM Act creates an exception for e-newsletters that are sent pursuant to a subscription.  They are considered “transactional or relationship” communications.  Other forms of electronic communication will be governed by CAN-SPAM if they have a “commercial” primary purpose.  CAN-SPAM labeling and opt-out features also apply to unsolicited commercial emails regardless of whether there is an existing relationship.  As a result, an attorney must determine how the CAN-SPAM Act applies to client communication.

Even when states expressly include electronic communication in their ethics rules, rules differ among the states and make application of those rules confusing.

• Hawaii

Hawaii is an interesting exception to the trend allowing email solicitations.  The Hawaii Rules of Professional Conduct (the “Hawaii Rules”) forbid email solicitation of prospective clients in Rule 7.3(f).  The comments to Hawaii Rule 7.3 do not mention subsection (f) but do reference the threat of undue influence and overreaching that accompany certain solicitation of prospective clients.  One can speculate that the Hawaiian Rules prohibit email contact simply because of the informal nature of such solicitation.

• Tennessee

Most jurisdictions have not banned email contact, but do require warnings in unsolicited electronic advertising much like the requirements in Model Rule 7.3.  For example, Tennessee’s current version of the Rules of Professional Conduct contains an express labeling requirement for “computer transmissions.”  A solicitation sent from a Tennessee lawyer or to a potential client located in Tennessee must include the words “THIS IS AN ADVERTISEMENT” in conspicuous print size at the beginning and the end of the writing.  Other jurisdictions incorporate all of the traditional direct written contact rules in their regulation of electronic communication.

• Florida

Florida’s Rules of Professional Conduct (the “Florida Rules”) have a separate subchapter devoted to computer-accessed communications.  Within that subchapter, a subsection entitled “Electronic Mail Communications” incorporates by reference all of the Florida Rules on traditional direct communication.  The email subsection goes on to require that any such communication disclose at least one office location of the lawyer or lawyers and include the statement “legal advertisement” in the subject line.  According to the comments to Florida Rule 4-7.6, unsolicited electronic mail messages are “functionally comparable” to direct mail communications.

Compliance With State Rules Likely To Satisfy CAN-SPAM

It is likely that attorneys will satisfy the labeling requirements of CAN-SPAM by following state ethics rules expressly regulating email solicitation.  Yet, the numerous opt-out requirements of CAN-SPAM remain a hurdle.  Lawyers and law firms confront a formidable task when forced to keep track and monitor lists of recipients who have opted out of future communications.

LINKING TO THE FIRM’S WEBSITE IN AN EMAIL

When an attorney sends an otherwise innocuous email, does the inclusion of a website link transform the email into a commercial communication or a solicitation for pecuniary gain?

Although CAN-SPAM relies on the primary purpose test to label a message commercial, the majority of state ethics rules apply only when an attorney is significantly motivated by his own pecuniary gain.

• Application Of CAN-SPAM To Web site Links

Commercial electronic mail is defined in the CAN-SPAM Act as any message the “primary purpose of which is the commercial advertisement or promotion of a commercial product or service.”  The CAN-SPAM definition of commercial content includes links to a web site operated for a commercial purpose.  The inclusion of a commercial website link may destroy the non-commercial nature of an email.  Specifically, reference to a website or inclusion of a hyperlink to an internet address operated for a “commercial” purpose will be considered “commercial” content under CAN-SPAM.

In light of the primary purpose criteria, an email message that only contains a link to a web site operated for a “commercial purpose” will have a “commercial primary purpose.”  Having a “commercial primary purpose” makes the email subject to CAN-SPAM.  If email content is of the hybrid variety (e.g., “commercial” content, “transactional or relationship,” or other content), then the email is evaluated according to the appropriate primary purpose test.

• Application Of State Ethics Rules To Website Links

Although CAN-SPAM relies on the primary purpose test to label a message commercial, the majority of state ethics rules apply only when an attorney is significantly motivated by his own pecuniary gain.  Some state rules simply require pecuniary gain to be a motivating factor.  See Ariz. Rules R. 7.3(a).  Other states only mention “significant motive” in the prohibition against in-person contact, but later use of the undefined term “solicitation” suggests that the “significant motive” requirement applies to the entire body of advertising rules.  See, e.g., Utah Rules R. 7.3.  States like Delaware prohibit in-person communication where a significant motive is the lawyer’s pecuniary gain; however, the state regulates all written communication “soliciting professional employment.”  As such, solicitations of employment almost always fall within the ambit of the rules.  Thus, determining whether an email containing a link is subject to state regulation, one must initially decide whether the lawyer, in sending the email, was significantly motivated by pecuniary gain.

• Does The Link Encourage Contact?

In one opinion, the Utah Committee advised that any e-newsletter, alert or brochure that encourages the recipient to contact the firm for information is a solicitation of professional employment subject to the Utah Rules.  See Utah State Bar Ethics Comm., Op. 02-02 (2002).  A link in an email that is not otherwise a solicitation could be perceived as encouragement to contact the firm.  This interpretation would result in the broad application of state ethics rules for attorneys who include a link to their firm as a matter of course.

Significantly, even if the inclusion of a link to the firm website does not make an email a solicitation subject to regulation, most state ethics rules regulate domain names directly.  For example, the Maryland State Bar Association Committee on Ethics recognized that an internet domain name is a communication subject to the general requirement that attorney communications not be false or misleading.  See Md. State Bar Ass’n. Comm. on Ethics, Op. 02-18 (2002).  Avoiding a false or misleading domain name does not necessarily mean an attorney has to use the firm’s name.  It does require an attorney to refrain from including descriptive phrases in the name itself.  State jurisdictions have cautioned lawyers against using such domain names as “bestlawyer.com,” “bigverdict.com,” or “person alinjuryexpert.com.”

Similarly, the Arizona Committee advised a law firm against adopting the domain names “countybar.com” or “arizonalawyer.org.”  See Ariz. Comm. on Rules of Prof’l Conduct, Op. 2001-05 (2001).  Use of “countybar.com” was unacceptable because it erroneously suggests an affiliation between the law firm and the local bar association.  “Arizonalawyer.org” could not be used because the “.org” designation indicates a non-profit organization.  The use of “.org” by a private law firm was misleading because it suggests that the firm was not operating for profit.

CONCLUSION

Attorneys need to become informed about the provisions of the CAN-SPAM Act, including how the new regulations interact with their jurisdiction’s rules of ethics.  Although the CAN-SPAM Act does not mention attorneys specifically, its provisions apply to conduct engaged in by most lawyers every day.

Many current state ethics rules governing internet communication are out of date, are confusing, or both.  Amendment of these rules to include express reference to the internet, and regulation consistent with CAN-SPAM, would help to provide attorneys with guidance regarding their conduct.  This may prevent lawyers from violating a new federal law, annoying prospective clients, and embarrassing the profession.

PRACTICE CHECKLIST FOR 
How The CAN-SPAM Act Of 2003 Affect Electronic Communication By Lawyers

Although the CAN-SPAM Act does not directly mention lawyers, it reaches email bulletins, enewsletters, and client alerts.  CAN-SPAM may demand some things that a state’s ethics rules might not—and vice versa.

Lawyers who send email and e-newsletters to recipients in multiple states need to consider their obligations under CAN-SPAM and their obligations under the ethics rules of the states where the newsletters are sent.  Lawyers should consider at least the following whenever sending out such communications:

__ Including a clear and conspicuous opt-out mechanism in each communication;

__ Creating a centralized procedure to assure that every opt-out request is honored within 10 business days;

__ If using third parties for transmission of marketing communications, ensuring that the subject headings are accurate and not misleading, and that the messages properly identify the lawyer as the sender;

__ Including clear and conspicuous identification that the communication is an advertisement;

__ Asking clients to subscribe to newsletters to avoid having to label the communication as an advertisement; and

__ Providing a physical street address on every communication sent.

Notes:

William R. Denny is a partner at Potter Anderson & Corroon LLP, Wilmington, Delaware, practicing in the area of information technology law.   He can be reached at wdenny@potteranderson.com.  Gabriel R. MacConaill, an associate at the firm, and Jennifer A. Chamagua, a law student at Villanova University School of Law who will be joining the firm in September, assisted in the preparation of this article.   This article is based on a paper the authors prepared for a seminar sponsored by the ABA’s Business Law Section.   The views expressed herein are those of the authors and may not be representative of the views of the firm or its clients.

About Potter Anderson

Potter Anderson & Corroon LLP is one of the largest and most highly regarded Delaware law firms, providing legal services to regional, national, and international clients. With more than 100 attorneys, the firm’s practice is centered on corporate law, corporate litigation, intellectual property, commercial litigation, bankruptcy, labor and employment, and real estate.