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    Proposed changes to Florida Rule of Professional Conduct 4-7.6, "Computer-Accessed Communications," as approved by the Florida Bar Board of Governors on 3/30/2007 (note:  the changes are not final unless and until approved by the Florida Supreme Court):

Approved by Florida Bar Board of Governors 3/30/2007

RULE 4-7.6 COMPUTER-ACCESSED COMMUNICATIONS

(a)  Definition.  For purposes of this subchapter, "computer-accessed communications" are defined as information regarding a lawyer’s or law firm’s services that is read, viewed, or heard directly through the use of a computer.  Computer-accessed communications include, but are not limited to, Internet presences such as home pages or World Wide Web siteswebsites, unsolicited electronic mail communications, and information concerning a lawyer’s or law firm’s services that appears on World Wide WebInternet search engine screens and elsewhere.

(b)  Internet Presence. 

     (1) Homepages. All World Wide Web sites and home pages homepages accessed via the Internet that are controlled or sponsored by a lawyer or law firm and that contain information concerning the lawyer’s or law firm’s services:

(1)  shall disclose all jurisdictions in which the lawyer or members of the law firm are licensed to practice law;

(2)  shall disclose 1 or more bona fide office locations of the lawyer or law firm, in accordance with subdivision (a)(2) of rule 4-7.2; and

(3)  are considered to be information provided upon request and, therefore, are otherwise governed bysubject to the requirements of rule 4-7.92:

     (2) Websites Other Than Homepages. Other than the homepage, all websites accessed via the Internet that are controlled or sponsored by a lawyer or law firm and that contain information concerning the lawyer's or law firm's services are subject to the  requirements of rule 4-7.2 except:

                      (A)  notwithstanding the provisions of subdivision (c)(1)(F) of rule 4-7.2, websites  may contain factually verifiable statements concerning past results obtained by the lawyer or law firm, if, either alone or in the context in which they appear, such statements are not otherwise misleading and the statements are accompanied by a disclaimer stating whether all results are provided, that the results are not necessarily representative of results obtained by the lawyer, and that a prospective client's individual facts and circumstances may differ from the matter(s) in which the results are provided;

                      (B) notwithstanding the provisions of subdivision (c)(1)(J) of rule 4-7.2,  websites may contain testimonials if, either alone or in the context in which they appear, such statements are not otherwise misleading and the statements are accompanied by a disclaimer that not all clients have provided testimonials, the results are not necessarily representative of results obtained by the lawyer, and a prospective client's individual facts and circumstances may differ from the matter in which the testimonials are provided; and

                      (C)  notwithstanding the provisions of subdivision (c)(2) of rule 4-7.2, websites may contain factually verifiable statements describing or characterizing the quality of the lawyer’s services if, either alone or in the context in which they appear, such statements are not otherwise misleading.

(c)  Electronic Mail Communications.  A lawyer shall not send, or knowingly permit to be sent, on the lawyer’s behalf or on behalf of the lawyer’s firm or partner, an associate, or any other lawyer affiliated with the lawyer or the lawyer’s firm, an unsolicited electronic mail communication directly or indirectly to a prospective client for the purpose of obtaining professional employment unless:

(1)  the requirements of subdivisions (b)(1), (b)(2)(A), (b)(2)(E), (b)(2)(F), (b)(2)(G), (b)(2)(I), and (b)(2)(J) of rule 4-7.4 are met;

(2)  the communication discloses 1 or more bona fide office locations of the lawyer or lawyers who will actually perform the services advertised, in accordance with subdivision (a)(2) of rule 4-7.2; and

(3)  the subject line of the communication states "legal advertisement."

(d)  Advertisements.  All computer-accessed communications concerning a lawyer’s or law firm’s services, other than those subject to subdivisions (b) and (c) of this rule, are subject to the requirements of rule 4-7.2.

COMMENT

Advances in telecommunications and computer technology allow lawyers to communicate with other lawyers, clients, prospective clients, and others in increasingly quicker and more efficient ways.  Regardless of the particular technology used, however, a lawyer’s communications with prospective clients for the purpose of obtaining professional employment must meet standards designed to protect the public from false, deceptive, misleading, or confusing messages about lawyers or the legal system and to encourage the free flow of useful legal-related information to the public.

The specific regulations that govern computer-accessed communications differ according to the particular variety of communication employed.  For example, a lawyer’s Internet web sitewebsite is accessed by the viewer upon the viewer’s initiative and, accordingly, the standards governing such communications correspond to the rules applicable to information provided to a prospective client at the prospective client’s requestsubject to most of the requirements of rule 4-7.2.  A website cannot be easily categorized as either information at the request of the prospective client, which is subject to no regulation under this subchapter but is subject to the general prohibition against dishonesty, or as advertising in a medium that is totally unsolicited and broadly disseminated to the public, such as television, radio, or print media.  Although some steps must be initiated by the viewer to access a website, the viewer might not necessarily be attempting to access that law firm’s website, or a law firm website at all.  It is therefore inappropriate to treat a website as information upon request, because it is not the same as direct contact with a known law firm and requesting information.  On the other hand, the viewer is unlikely to access a lawyer or law firm website completely by accident.  Therefore, a website is treated at an intermediate level and is subject to most of the general regulations set forth in rule 4-7.2.  Websites generally contain much more information than can be included in the context of a television, radio, or print advertisement.

A lawyer who provides information about past results, testimonials, or statements characterizing the quality of the lawyer's services on a website must make only true, factually verifiable statements that are not misleading either alone or in the context in which those statements are made.  To avoid misleading the prospective clients, such statements must be accompanied by appropriate disclaimers as set forth in the rule so that prospective clients will not be misled to believe that the lawyer can achieve similar results when the facts and circumstances in their cases may vary greatly from the ones in which the past results and testimonials are provided.

For websites containing verifiable statements of past results, the following disclaimer ordinarily will comply with subdivision (b)(2)(A): "Not all results are provided, the results are not necessarily representative of results obtained by the lawyer, and a prospective client's individual facts and circumstances may differ from the matter in which the results are provided."

For websites containing testimonials, the following disclaimer ordinarily will comply with subdivision (b)(2)(B): "Not all clients have provided testimonials, the results are not necessarily representative of results obtained by the lawyer, and a prospective client's individual facts and circumstances may differ from the matter in which testimonials are provided."

For websites containing both verifiable statements of past results and testimonials, the following disclaimer ordinarily will comply with subdivisions (b)(2)(A) and (b)(2)(B): "Not all results are provided and not all clients have provided testimonials, the results are not necessarily representative of results obtained by the lawyer, and a prospective client's individual facts and circumstances may differ from the matter in which the results and the testimonials are provided."

A lawyer providing information about past results or testimonials on the lawyer's website must have the informed consent of the affected client.  See rule 4-1.6.

In contrast, unsolicited electronic mail messages from lawyers to prospective clients are functionally comparable to direct mail communications and thus are governed by similar rules.  Additionally, communications advertising or promoting a lawyer’s services that are posted on search engine screens or elsewhere by the lawyer, or at the lawyer’s behest, with the hope that they will be seen by prospective clients are simply a form of lawyer advertising and are treated as such by the rules.

This rule is not triggered merely because someone other than the lawyer gratuitously links to, or comments on, a lawyer’s Internet web sitewebsite.

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