Tuesday, January 24, 2012

Is creating a website a form of solicitation or just advertising?

Assume there is a big accident involving hundreds of victims and a lawyer sets up a website specifically targeted to victims to lure them into hiring the lawyer to file claims on their behalf. The lawyer is not sending out e-mails, spam, letters or visiting anyone in person. He just creates a website and waits for people to find it. Then assume that the jurisdiction where this happens has a 30 day "waiting period" type rule and the website was operating in less than 30 days after the accident. Has the attorney violated the waiting period rule by creating the website?

Obviously, at least in part, the answer depends on the actual language of the rule. Suppose the rule says it is a violation of the rule to "contact" a victim. Is setting up a website a way to "contact" victims.

This question is the subject of debate now in New York, where an attorney created a website in an attempt to sign up people who were stuck in the subway during the recent blizzard. The Daily News has more on the story.

New York blogger Eric Turkewitz has published a good comment in which he concludes that setting up the website violates New York’s 30-day anti-solicitation rule which states, in relevant part, that "No solicitation relating to a specific incident involving potential claims for personal injury . . . shall be disseminated before the 30th day after the date of the incident . . ."

There is no question in my mind that the website is targeted to a specific audience, but it is not so clear whether setting up a website is a form or "disseminating" solicitation materials.

A website is not something that is sent to the victims (like the letter in Shapero) or something that people receive when they don't expect it (like the newspaper page in Zauderer or a billboard that you did not expect to see when driving). The website is out there, somewhere in cyberspace where people have to actually look for it.

Obviously, if the lawyer is publicizing the website by other means - like letters or ads, etc. - the issue is easier to deal with, but assuming the lawyer simply created the website and let it sit there and people find it when they try to search for news on the blizzard or something like that, I am not so sure the question is as clear cut.

Having said that, as Eric Turkewitz explains, in New York, however, the question appears to be covered by Rule 7.3(c)(5) which states that a website maintained by the lawyer or law firm is not a form of solicitation unless the web site is designed for and directed to or targeted at a prospective client affected by an identifiable actual event or occurrence or by an identifiable prospective defendant.

UPDATE: Thanks to Eric Turkewitz again for the original story and for this update: the website in question has been turned off.

UPDATE (2/24/2012):  Last September, the ABA's 20/20 Commission circulated a proposal which, among many other things, proposed to add a paragraph to the comment to Model Rule 7.3 which says, in part, that "a lawyer’s communication typically does not constitute a solicitation if it is directed to the general public, such as through a billboard, an Internet banner advertisement, a website or a television commercial, or if it is in response to a request for information or is automatically generated in response to Internet searches."

In the example we are discussing here, the website did not seem to be directed to the general public, but it would "only be found in response to a request for information", etc. So is it an ad or is it solicitation?

UPDATE (August 2012):  The proposed amendment was adopted by the ABA and now appears as the first paragraph of the comment to Model Rule 7.3.  For more on the amendments to the rules adopted in August 2012 go here, here and here.

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