The following opinion was handed down by the Florida Supreme Court on Aug. 15, 2000:
An attorney may not solicit prospective clients through Internet chat rooms, defined as real time communications between computer users.
As use of the Internet becomes more and more a part of the practice of law, questions arise as to whether attorneys may ethically participate in chat rooms. As used in this opinion, the term “chat room” refers to a real time communication between computer users. A foremost concern in attorney participation in chat rooms is whether such activity constitutes impermissible solicitation. Rule 4-7.4(a) provides:
(a) Solicitation. Except as provided in subdivision (b) of this rule, a lawyer shall not solicit professional employment from a prospective client with whom the lawyer has no family or prior professional relationship, in person or otherwise, when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain. A lawyer shall not permit employees or agents of the lawyer to solicit in the lawyer’s behalf. A lawyer shall not enter into an agreement for, charge, or collect a fee for professional employment obtained in violation of this rule. The term “solicit” includes contact in person, by telephone, telegraph, or facsimile, or by other communication directed to a specific recipient and includes (i) any written form of communication directed to a specific recipient and not meeting the requirements of subdivision (b) of this rule, and (ii) any electronic mail communication directed to a specific recipient and not meeting the requirements of subdivision (c) of rule 4-7.6.
Several other states have considered the issue of whether attorney participation in chat rooms constitutes impermissible solicitation. For example, in Michigan Opinion RI-276, it was concluded that while e-mail communications were akin to direct mail communications:
A different situation arises if a lawyer is participating in interactive communication on the Internet, carrying on an immediate electronic conversation. If the communication was initiated by the lawyer without invitation, such “real time: communications about the lawyer’s services would be analogous to direct solicitations, outside the activity permitted by MRPC 7.3.
Similarly, the West Virginia Lawyer Disciplinary Board stated in Opinion 98-03:
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.
The Utah State Bar’s Ethics Advisory Opinion Committee has likewise concluded that an attorney’s use of a chat room for advertising and solicitation are considered to be in person communications for the purposes of its Rule 7.3(a) and, thus, restricted by that rule. Utah Ethics Opinion 97-10. The Virginia State Bar Advertising Committee’s Lawyer Advertising Opinion A-0110 is in accord with this reasoning.
Other states have also recognized the dangers inherent in attorney participation in chat rooms. For example, the Philadelphia Bar Association, in Opinion 98-6, acknowledge that attorneys could not engage in any activity that would be improper solicitation. The Committee further stated, “In the opinion of the Committee, conversation interactions with persons on the Internet do not constitute improper solicitation, but in any one particular case the interaction may evolve in such a way that it could be characterized as such.” The Illinois State Bar Association, in ethics opinion 96-10, has also stated:
The Committee does not believe that merely posting general comments on a bulletin board or chat room should be considered solicitation. However, if a lawyer seeks to initiate an unrequested contact with a specific person or group as a result of participation in a bulletin board or chat group, then the lawyer would be subject to the requirements of Rule 4-7.3. For example, if the lawyer sends unrequested electronic messages (including messages in response to inquiries posted in chat groups) to a targeted person or group, the messages should be plainly identified as advertising material.
After considering the above opinions, the Standing Committee finds the reasoning of the opinions from Michigan, West Virginia, Utah and Virginia to be persuasive. The Standing Committee, therefore, finds that an attorney’s participation in a chat room in order to solicit professional employment is prohibited by Rule 4-7.4(a).
However, this opinion should not construed so broadly as to prohibit a Florida attorney from participating in chat rooms when it is completely unrelated to seeking professional employment, such as when the chat concerns the attorney’s personal interests or hobbies. Nor should this opinion be construed as limiting an attorney’s ability to send e-mail to prospective clients in accordance with Rule 4-7.6(c). Other communications about a lawyer’s services over the Internet remain subject to the requirements of the rules regulating attorney advertising.