ABA/BNA LAWYERS' MANUAL ON PROFESSIONAL CONDUCT

Under DR2-101(a) of the Lawyers Model Code of Professional Responsibility in the American Barristers Association report is was noted:

"a question may exist whether publicity on a system limiting access to a private group of subscribers can correctly be called 'a public communication'.

Although a visit to the site involves use of telephone lines, the contact is not ``live'' so as to be a prohibited contact. Moreover, the contact does not involve an uninvited solicitation, but is more akin to a client's telephoning the firm or walking into the office and asking for information. Note, Attorney Advertising and Solicitation on the Internet, supra, at 714. An unpublished Tennessee advisory ethics opinion advised that the State's ethics rules permit Web sites because the information is not indiscriminately distributed to Internet users, who themselves must choose to read the posting before it can appear on their screen. Tennessee Advisory Ethics Opinion 95-A-570 (1995). ….No courts have yet discussed, much less delineated, the constitutional limits of permissible state ……the Supreme Court has upheld reasonable restrictions on the time, place, and manner.. but held that content regulation is not permissible unless there is a substantial government interest, the regulation advances that interest, and the regulation is narrowly drawn. See, e.g., Florida Bar v. Went For It Inc., 115 S.Ct. 2371, 11 Law.Man.Prof.Conduct 171 (US SupCt 1995); Shapero v. Kentucky Bar Association, 486 U.S. 466 (US SupCt 1988).

Many governments, including the Chinese and French have difficulties "censoring" the Net based upon obscure jurisdictional issues regarding such questions as:

Does the government have control over foreign sites' presence on the Net or can it preclude reference to locals whilst hosted on a foreign server?

Should locals be discriminated against in favor of unfettered foreign sites?

Should there be one rule for all or should interstate or international or government users have an advantage in usage or style?

Naturally any dentist would be happy to comply with the same restrictions applicable to the 263,000 other dental sites which are available to this State's citizens.

Is a site "advertising" given its passive presence, i.e. it is available only upon the request of "a surfer". The site is dormant and passive until intentionally phoned by a seeker, whereas most advertising is intentionally accidentally intrusive:

It falls out of the newspaper,

is interleaved with one's mail or

interrupts one's gaze

whilst driving past a billboard

.

A main road containing 103,000 dental surgeries can be visited by a citizen by walking in the door, but their presence per se on that road does not constitute advertising. Similarity on the Superhighway, the existence of a site, which the citizen seeks out and enters freely, is a private transaction and a citizen's liberty.

The site is passive; visitors come to me, they phone my computer. I do not project, I do not enter their space, I do not intercept, I do not have a public profile’, I am not listed in Yellow pages,

I do not have any stationary or business cards printed with my web address nor is it disseminated within my locality other than to my patients by word of mouth nor is it linked from any other site as a banner or as a hyperlink.

The site "Find a dentist" is an example of advertising and the prospective dentist is asked to spend $200 because "an independent website created by a practice may never be found." The site lists 546 of this State's 700 dentists excluding this author!

Do our Board rules preclude me from communicating only to local citizens or am I prevented by local laws from communicating to all the people in the world?

I have always been an advocate of the level playing field and I do not support the concept of professional advertising in public newspapers, streets, television or magazines. The Internet is different because it relies on citizens seeking information. It is in the opposite direction to advertising, moving from the citizen to the provider rather than from the provider to the consumer.

To advertise is colorfully illustrated by the following

"... if the circus is coming to town and you paint a sign saying 'Circus Coming to the Fairground Saturday', that's advertising. If you put the sign on the back of an elephant and walk it into town, that's promotion. If the elephant walks through the mayor's flower bed, that's publicity. And if you get the mayor to laugh about it, that's public relations." If the town's citizens go the circus, you show them the many entertainment booths, explain how much fun they'll have spending money at the booths, answer their questions and ultimately, they spend a lot at the circus, that's sales.

I have no sign, no elephant, no publicity and not one "sale".

If an internet site is advertising, then it is no elephant…. Or more a celestial lost moribund Mammoth.

The United States Supreme Court struck down blanket prohibitions against lawyer advertising, holding that lawyers may exercise their rights to engage in commercial free speech. Bates v. State of Arizona, 433 U.S. 350 (1977). Prior to Bates, most States' ethics rules prohibited all attorneys advertising. Following Bates, lawyers continued to successfully challenge the states' efforts to regulate or restrict lawyer advertising.

Neither the Model Rules of Professional Conduct nor the Code of Professional Responsibility specifically regulate advertising on the Internet. Only a few states have provided guidance on how existing professional regulations apply to lawyer advertising on the Internet. A threshold issue is whether law firm's home page on the Internet is an advertisement subject to regulation under existing rules. Some lawyers may consider their home pages a source of pure information only, therefore totally exempt from regulation under advertising rules.

Information not considered as the solicitation of prospective clients includes the following: newsletters, news articles, legal articles, editorial opinions, illustrations, questionnaires, fact or opinion survey forms, announcement of office openings and relocations, requests for proposals or information from the public, legal product specifications, e-mail and e-mail response forms, attorney biographical information, announcement of personnel changes, attorney and staff support recruiting, job openings, legal developments and events, including verdicts, judgments, court rulings, administrative rulings, legislation, announcement of legal seminars and events.

The site was as a communication platform to patients as intended under Section 22C. "…. Rules 22 and 22A do not apply to written communications by a dentist with members of the dental profession and bone fide patients on matters relating to dentistry".

My advice has been that a restriction on the use of this modern powerful technology would be "a restrain of trade" and that Dr Chris Pulec a Canadian dentist had fought and won a case against the District Board.

A search using Go.Com provides the following listings to a local citizen:

Dentist 103,699

Dental 235,423

Dental implants 234,138

O’Brien 79,177

Dental Boards 35,965 (Lycos)

Adam Ferguson Principles of Moral and Political Science 1792

Is the passive presence of global sites of sufficient public harm that the local Board would wish to install and maintain filtering equipment to prevent and protect the citizens from such damaging influence, much as the third world regimes have attempted to restrict political information? Are such restrictions feasible or lawful or even desirable?

SIMON HAYES report in the Australian newspaper of 27 June 2000 "ABA fails to stop porn site"

Would indicate that any local dentist's webpage hosted in another country does not fall within the jurisdiction of local regulations?

So, the matter of "profile" or "obscurity" is interwoven with the concept of "advertising". A WebPage itself is evidential of "obscurity". Often times many sites receive no visitors! Equally should I erect a huge practice sign on the other side of the moon, its existence per se does not constitute advertising as it is neither visible to the passerby nor would they even know of its existence unless they mounted a galactic search.

In Theophanous Mason CJ, Toohey and Gaudron JJ spoke of 'the absence of any limit capable of definition to the range of matters that may be relevant to debate in the Commonwealth Parliament and to its workings'(Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 122) and suggested that whether speech fell inside or outside the freedom should be determined on a case by case basis. However, they did state that:

For present purposes, it is sufficient to say that 'political discussion' includes discussion of the conduct, policies or fitness for office of government, political parties, public bodies, public officers and those seeking public office. The concept also includes discussion of the political views and public conduct of persons who are engaged in activities that have become the subject of political debate, e.g., trade union leaders, Aboriginal political leaders, political and economic commentators.(46)

The width of the freedom was further demonstrated by their adoption of Barendt's statement that:

'political speech' refers to all speech relevant to the development of public opinion on the whole range of issues which an intelligent citizen should think about.

Should an intelligent citizen think about dentistry ?

Should only emerged issues, center staged issues, such as woodchipping, be recognised as the only issues worthy of the protection of free speech?

In his article 'Retooling rhetoric: Has free speech gone the way of the free lunch? Stephen Stockwell Lecturer in Film and Television Journalism, Griffith University observed

"Free speech, like all freedoms, must be constantly re-made to keep its effect."

Deane J in Cunliffe stated that the outcome of the reasonable proportionality test 'will ultimately depend upon an assessment of the character (including purpose), operation and effect of the particular law' ( Cunliffe v Commonwealth (1994) 182 CLR 272 at 337.) In Australian Capital Television Mason CJ suggested that a restriction or prohibition that targets ideas or information will be more difficult to sustain than a restriction or prohibition that targets an activity or mode of communication by which ideas or information are transmitted. He stated that where a law targets ideas or information:

Entry to my site is only by direct inquiry and the non-patients are asked to leave.

Government Dental Facilities (University of WA Dental School, Dental Therapy Centers, Aboriginal Medical and Dental) also list services and personal above which many of the 'advertised' personal are in private practice in Perth. Is it an inequitable dealing for the Board to favor the public sector above the private? Is a part-time public officer free to exist on the internet with an assumed ( yet incorrect) spin off for his private practice?

WA dentists are listed on ADA and AOS WebPages conference programs both in Australia and overseas.

Can the WA Dental Board prevent a Swedish Dental Conference site listing a WA speaker which sings his/her clinical experience and skills?

What is an unfair or deceptive practice? Rosa v. Johnston, 3 Haw.App. 420, 427 (1982) holds that "a practice is unfair when it offends established public policy and when the practice is immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers." Probably the best way to prove an unfair practice is to show a statute or rule was violated. If so, then public policy is clearly violated, and the practice is probably immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers.

My web address is not listed in the electronic Yellow Pages as are some local dentists.

My site has been a global community outreach with communications from colleagues from Finland, Germany and India with invitations to visit and lecture with enquiries of reciprocal visits whilst in Perth.

American Dental Boards list their complaint findings at the site http://ncdentalboard.org/disciplinary.htm, which illustrates the powerful and appropriate use of the internet in spite of the knee flex desire on the part of regulators to "just ban it".

These matters are complex and according to an American report:

It is clear the FDA has yet to decide whether promotion of a product over the INTERNET is advertising or labeling.

"Labeling" is defined to include:

Brochures, booklets, mailing pieces, detail pieces, file cards, bulletins, calendars, price lists, catalogs, house organs, letters, motion picture films, filmstrips, lantern slides, sound recordings, exhibits, literature, and prints and similar types of printed, audio or visual matter.

CDA V FTC

orhttp://caselaw.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=97-1625 intrusion

In light of the Supreme Court decision in Feist Publications, Inc. v. Rural Telephone Co., 26/ an INTERNET home page is likely to be considered a compilation subject to copyright protection.

The South Carolina ethics committee decided it is permissible for attorneys to maintain a presence on electronic media for the purpose of discussing legal topics generally…"

The key question for lawyers on the Internet: are their communications protected non-commercial speech that enjoys full First Amendment protection, or commercial speech that the Constitution permits states to regulate? Some lawyers with Web pages consider them to be a pure information source free from the advertising constraints of legal ethics codes

There is authority indicating that lawyer-to-lawyer marketing is exempt from ethics advertising rules. E.g., ABA Informal Ethics Opinion 84-1504 (1984)

Cameron [jcam@nwlawyer.net], a non-lawyer whose Seattle company, Northwest Lawyer Inc., provides Internet services to law firms, had this to say

These rules use language and thinking that may apply to a traditional print world, but not an interactive, electronic one. For example, the idea of ``when and where'' has little meaning in an environment where ``where'' means ``everywhere,'' and ``when'' means ``always.'' It's also not clear what is meant by an ``ad'' in an interactive world where information proliferates at an astounding rate, and can be linked and updated on a daily basis. Rules like this can be written easily; the real challenge will be their interpretation and enforcement.

A publisher of free information:

WEB SITES ARE PROTECTED IF LAWFUL AND NOT MISLEADING

Under the guidelines set by the United States Supreme Court for the regulation of advertising, a Web site would have constitutional protection if it was lawful and was not misleading. As stated by the Court:

Our general approach to restrictions on commercial speech is…. by now well settled. The States and Federal Government are free to prevent the dissemination of commercial speech that is false, deceptive or misleading. Commercial speech that is not false or deceptive and does not concern unlawful activities, however, may be restricted only in the service of a substantial governmental interest, and only through means that directly advance that interest.

As stated by the United States Supreme Court in Ohralik v. Ohio State Bar Association, 436 U.S. 477, 98 S.Ct. 1912, 56 L.Ed.2d 444, the distinction between commercial speech and other varieties of speech, is whether or not the speech in question proposes a commercial transaction.

United States Supreme Court: "…a written communications wherein the Attorney makes a solicitation aimed at making a profit or drumming up new business is advertising."

While the technology enabling the restriction of the publication of Web sites is not yet apparently developed, it is not inconceivable that as the Web grows more cluttered, this technology will evolve and perhaps even be demanded. There is Internet precedent available for the use of such restrictions. For example, at present, publication restrictions are permitted (and even encouraged) by Newsgroups, where the poster of a message can restrict access to his message by choosing a level of distribution from the following choices: World, North America, US, State, City or Local.90 However, presently, the very nature of the Web, with its linked sites and pro-access culture, will make the restriction of access to sites an unpopular choice.

I have raised these matters in a general sense, however in finding a solution to my site, I have issued instructions on August 1, 2000 for investigation of the feasibility of arranging for the site to be protected (with or without a password) and noticed with the following disclaimer pending the Board's acceptance of this compromise arrangement:

Furthermore, the owner of this Web page does not wish to represent anyone desiring dental advice or treatment based upon viewing this Web page in a state where this Web page fails to comply with all laws and ethical rules of that state or country.

Local citizens will not be allowed access; the site will only be made available to patients of the practice or referring dentists or members of the dental profession.

The site was as a communication platform to patients as intended under Section 22C. "…. Rules 22 and 22A do not apply to written communications by a dentist with members of the dental profession and bone fide patients on matters relating to dentistry".

I would suggest that a website is not advertising but that listing with Yellow Pages or any paid directory is advertising and that the Board should examine the broader matter and formulate guidelines (if wise or even possible) for the 103,699 dentists accessible to the citizens of this State, a task for which I have unsuccessfully volunteered to assist.