Email Marketing Rules for Lawyers: Wise Commentary, Impossible Results

For many years, Will Hornsby, Staff Counsel at the American Bar Association, has been one of the most respected commentators and experts on the extraordinary world created where legal ethics rules and the Internet meet.
His new article, “Spamming for Legal Services: A Constitutional Right Within a Regulatory Quagmire,” should be read by all regulators and regulators-to-be of legal marketing by email. The article, while not yet available online, appears in the Fall 2003 issue of The John Marshall Journal of Computer & Information Law that just arrived in my mailbox. If you are interested in this area, it’s worth the effort to track down the print version.
Hornsby has stated clearly some of the paradoxes and difficulties that have puzzled lawyers trying to use email in a normal fashion for anything that might be considered “marketing” in nature. Hornsby has raised the Q word in connection with these rules.
Here are few key items from the end of the article:
Hornsby notes that if, as many experts contend, a lawyer licensed in one state who sends emails to people in other states in which he or she is not licensed is deemed to be subject to the laws of each other state, he or she must comply with the laws of each and every state. As Hornsby notes in my favorite sentence in the article, “This creates a difficult, but not particularly impossible burden.”
As he notes, full compliance is not only administratively impractical, but also requires “labeling and disclaimer obligations that distort the message in a way that undermines any marketing benefit that may result from this tool.” Based on the discussion regarding the recently proposed Missouri marketing rules changes, a good number of lawyers are actually comfortable with this result.
Hornsby then goes on to point out the irony of the current rules. “As a result, lawyers providing personal legal services are better able to seek clients through unsolicited emails compared to those who are serving the corporate marketplace. This result should be the opposite of the intent of these regulations. Instead of protecting unsophisticated consumers against the possibility of overreaching, the result is the elimination of messages to corporate entities that are best able to assimilate the information and impose marketing controls to eliminate abuses.”
Finally, in an argument I have made throughout the debate on Missouri rules changes, Hornsby concludes, “Meanwhile, law firms that could effectively convey a marketing message in a cost-effective way to a wide audience of prospective clients are restrained, if not prohibited, from doing so through this method of communication.”
This result reminds me of John Lennon’s famous line, “Everything is the opposite of what it is, isn’t it?”