Here’s a real-life event that might make a good short-answer problem for a Professional Responsibility final exam.
Today I received an email purporting to be from a law student. The sender’s email address was [common-first-name]@edu-student-mail.org. The subject line was “Suggestion for your page [URL]” with the URL being a fairly obscure page from an Internet law seminar I gave in 1998.
Here’s the text:
I came across your site today while doing some research on intellectual property for one of my law classes. You provide some really great resources, but on your page http://www.law.miami.edu/~froomkin/sem98/sem11.htm I tried to click on your link to http://www.eff.org/pub/Intellectual_property and it doesn’t seem to be working. I also found this page in my research which could provide similar information if you wanted to check it out [here followed a URL to a site advertising personal injury lawyers that I've cut out to avoid rewarding this behavior].
I responded with an email asking what law school she attended. Haven’t gotten an answer.
Suppose, just hypothetically (we have no reason to believe this at present), that the name is a fake and this was in fact an advertising message for the California PI firm sponsoring the website in the message.
Is this (hypothetical) duplicity banned by the California legal ethics code? I’m not a member of the California Bar, so I don’t know the answer to this one. A cursory glance at Rule 1-400. Advertising and Solicitation. makes me wonder if there isn’t maybe a gap in the rules.
The California ethics rules prohibit making false statements to potential clients, actual clients, opposing parties, and the courts. They also prohibit false statements to third parties about cases in which the lawyer is involved. But there doesn’t seem to be anything about hiring an agent to make a false statement to a third party (me) designed to get (let us hypothesize) accurate publicity for the lawyer, that is a link to the firm’s site.
The rules do say, among other things, that
A communication [defined as: "any message or offer made by or on behalf of a member concerning the availability for professional employment of a member or a law firm directed to any former, present, or prospective client"] or a solicitation ["any communication: (1) Concerning the availability for professional employment of a member or a law firm in which a significant motive is pecuniary gain;"] (as defined herein) shall not:
(1) Contain any untrue statement; or
(2) Contain any matter, or present or arrange any matter in a manner or format which is false, deceptive, or which tends to confuse, deceive, or mislead the public
It doesn’t seem to me that, true or false, the email I quoted above qualifies as either a “communication” or a “solicitation” under these rules. So I have to think it is not covered.
But shouldn’t sleazy lying marketing designed to promote a website be as unethical as a lie to a potential client or lies on that website?
Maybe the person who sent that email was real. But even if she is, the gap in the rules this email made me think about may be real too.
(I’d welcome enlightenment from anyone more familiar with the California rules.)
[Original draft 2/2/10. In preparation for my blog redesign, I've been going through draft blog posts that somehow never made it to publication. This is one of them.]
12/12/2010: Never did get an answer to my email.