Spam and your law practice
Are those e-mailed newsletters legal
By L. Elizabeth Bowles
Spam is hard to take for all of us. But what if your law
firm wants to send out "helpful information"
to its clients?
When the exciting potential of the Internet was just
being discovered, no one dreamed that one day the phrase
"You've got mail!" would come to mean
"You've got spam (and lots of it)."It's
annoying, bothersome, irritating, distracting and
expensive. Consumers hate it, Internet Service Providers
(ISPs) pay for it, and businesses lose time and
productivity over it. Spam threatens to bring to a
screeching halt the Internet (and e-mail) as we know
it.
In an attempt to deal with the increasing problem of
spam, Congress passed the Controlling the Assault of Non-
Solicited Pornography and Marketing Act of 2003 (CAN-
SPAM), in late 2003. Although intended to target
spammers, CAN-SPAM also swept into its purview many e-
mail communications — such as legal e-newsletters
— that had not traditionally been considered
"spam." Therefore, anyone who sends out an e-
mail newsletter or any e-mail solicitation must be aware
of the act's mandates. This includes lawyers, law firms
and legal organizations.
The CAN-SPAM Act became effective on Jan. 1, 2004.
Congress named the Federal Trade Commission the primary
agency for its enforcement. Although the FTC has yet to
issue its final rulemaking, the act is currently in
force, and anyone using e-mail to communicate with
potential clients should be aware of its requirements.
The FTC defines spam as any "unsolicited commercial
e-mail" (UCE), and this is also the commonly
understood definition of spam. So how did UCE come to be
called "spam?" Blame the lawyers. In 1994, two
Phoenix lawyers hired a programmer to write code to send
a message to every newsgroup on USENET about their
services. Tens of thousands of members of these
newsgroups received the lawyers' message. The newsgroup
participants started calling the commercial message
"spam" in honor of the famous Spam skit by the
British comedy troupe Monty Python. In this skit, every
menu item included Spam luncheon meat — whether
or not the customer wanted it. The term "spam"
came to mean something that a person does not want but
is constantly offered.
It should be noted that not all unexpected e-mail is
spam. Spam, by definition, is unsolicited commercial
e-mail, which means that the e-mail must be both
commercial in nature and unsolicited in order to
qualify as spam. A newsletter distributed to those who
request it is not spam because the e-mail is not
unsolicited. Unsolicited e-mails sent by individuals as
a form of personal communication are not spam because
they are not commercial. The CAN-SPAM Act only regulates
commercial electronic mail messages. Therefore,
defining what e-mail is commercial is critical under CAN-
SPAM.
The act defines "commercial" as "any
electronic mail message the primary purpose of which is
the commercial advertisement or promotion of a
commercial product or service (including content on an
Internet Web site operated for a commercial
purpose)." The key language in this definition is
"primary purpose." If the primary purpose of
the e-mail is not commercial, then CAN-SPAM does not
apply. For lawyers who send out e-newsletters to clients
and potential clients, it is critical to determine
whether the primary purpose of these e-mails is
"advertising or promotion of a commercial product
or service."
Few would argue that legal bulletins and e-newsletters
have no commercial purpose; after all, if there
were no business development to be gained from sending
out legal newsletters by e-mail, few lawyers would
bother. In fact, legal newsletters serve to provide
information about the lawyer or firm, to promote the
lawyer or firm's expertise, knowledge or utility in a
particular area of law, and to remind clients and
potential clients that the lawyer is there to serve the
individual's legal needs.
Those state ethics committees that have addressed the
question have found that newsletters sent to prospective
clients are ads. However, these e-newsletters
also serve another purpose — to inform and
educate about current developments in the law.
Asked to define the terms contained in CAN-SPAM, the FTC
issued an Advance Notice of Proposed Rulemaking (ANPR)
in March of 2004 that addressed, among other matters,
the definition of "primary purpose." The FTC
suggested seven different possible criteria, including
one that would consider an e-mail commercial if the
"commercial advertisement or promotion in an e-mail
is more than incidental to the e-mail." Following
comment on the ANPR, the FTC issued a Notice of Proposed
Rulemaking (NPR) on Aug. 13, 2004. The NPR suggests the
following three-part definition of "primary
purpose":
An e-mail will be considered to be commercial, if
1. "... [A]n e-mail message contains only
content that advertises or promotes a product or
service;"
2. The e-mail message contains both commercial content
and "transactional or relationship content" [a
communication directly related to the transaction such
as completion or facilitation, warranty information,
notifications regarding terms, standing or account
balance, employment, and delivery]. Such
"transactional or relationship" messages are
considered commercial where a recipient reasonably
interpreting the subject line of the message would
conclude it to be advertising a product or service
or "the message's transactional or
relationship content does not appear at or near
the beginning of the message;" and
3. The e-mail message contains both commercial content
and noncommercial content and a recipient reasonably
interpreting the subject line of the message would
conclude it to be advertising a product or service
or "a recipient reasonably interpreting the
body of the message would likely conclude that the
primary purpose of the message is to advertise or
promote a product or service."
Comments on the NPR closed on Sept. 13, 2004, and the
FTC is required to issue its final rulemaking by Dec.
16, 2004.
The ultimate definition of primary purpose is very
important, since many legal e-newsletters would arguably
fall under the third definition above. CAN-SPAM requires
any e-mail whose "primary purpose" is
advertising or soliciting to comply with certain rules,
and the penalties for failing to comply with these
requirements range from fines to jail time, depending on
the egregiousness of the violation.
If legal e-newsletters are deemed to fit the definition
of "commercial e-mail," then lawyers and firms
will need to be certain that their e-newsletters comply
not only with the Rules of Professional Responsibility,
but with CAN-SPAM as well.
It is generally understood that the ethics rules
covering advertising apply to e-newsletters sent to
nonclients or potential clients. However, informational
e-newsletters that do not contain direct promotion of
the lawyer's services pose a more-difficult ethical
question, especially when sent to current clients. Some
ethics boards have found that e-newsletters sent to
current clients are solicitations, while others have
determined that they are not.
Enter CAN-SPAM. Depending on the content and subject
line of the e-newsletter, the FTC's proposed definition
of "primary purpose" may cause informational e-
newsletters to be categorized as "commercial,"
regardless of to whom they are sent. If so, these e-
newsletters will have to make clear that they are ads or
solicitations, even if sent to existing clients, and
might ultimately have to include a required label, such
as ADV (for "advertisement").
While the ethics rules and CAN-SPAM share certain
requirements, they are not co-equal, and CAN-SPAM may
apply even where the ethics rules do not. A lawyer
should fully understand the requirements of both before
sending out unsolicited e-mail.
Under the Model Rules of Professional Responsibility,
which have been adopted by the majority of the states,
lawyers may advertise (following Model Rule 7.2),
subject to the limitations of Rules 7.1 and 7.3. Model
Rule 7.1 regulates the content of the communication. It
states that a lawyer may not make a false or misleading
statement, may not make a statement that contains a
material misrepresentation of fact or law —
including a misleading omission — and may not
create unjustifiable expectations of the results the
lawyer can obtain.
The relevant provision of Model Rule 7.3 provides that
"every written, recorded or electronic
communication from a lawyer soliciting professional
employment . . . shall include the words advertising
material'. . . at the beginning and ending of any
electronic communication," unless the recipient is
a lawyer or has a family, close personal or prior
professional relationship with the lawyer.
CAN-SPAM layers on another set of requirements. Whereas
Rule 7.1 regulates the content of a lawyer's message,
CAN-SPAM regulates not only the truthfulness of the
content, but the "truthfulness" of the
structure of the e-mail message itself. Furthermore, CAN-
SPAM's definition of a commercial e-mail does not
contain any exemption for family, friends or current
clients, and the FTC's proposed definition of
"primary purpose" would not allow for any such
blanket exception except to the narrow extent of a
"transactional or relationship message."
Therefore, any e-newsletter, whether sent to current or
prospective clients, must comply with CAN-SPAM, even if
the lawyer would not be required to identify the e-
newsletter as an ad or solicitation under Rule
7.3.
The act provides that each commercial message must
comply with the following:
Transmission information may not be materially false
or materially misleading. This includes the header
information as well as the "from"
line;
the subject line may not be false or misleading as to
a material fact regarding the message's content;
each solicitation must clearly and conspicuously
include a functioning return e-mail address or other
Internet-based mechanism that allows a recipient to opt
out of receiving future mailings;
anyone who requests removal must be removed within 10
business days of the request; and
each commercial message must contain clear and
conspicuous identification that the message is an ad or
solicitation (unless the recipient gives prior
affirmative consent), clear and conspicuous opportunity
to opt out, and a valid "physical postal"
address of the sender.
Lawyers need to be especially careful of these
requirements, since many rely on in-house IT departments
or outside vendors to handle their computer systems.
Technically accurate header information that is
nonetheless "obtained by means of false or
fraudulent pretenses or representations shall be
considered materially misleading," as is header
information obscured because the mailer used another
computer to relay the message in order to disguise its
origin.
In practical terms, this means that the lawyer is
responsible for ensuring that accurate header
information is transmitted by whomever the lawyer is
using to send out the e-newsletter, whether it is the
firm's own mail servers or a third party. This is
especially critical when using a third-party mailer,
since some newsletter services will provide legitimate e-
mail services to one set of clients while at the same
time engaging in spamming behavior on behalf of others.
The requirement that anyone who asks to be removed from
the e-mail distribution list be so removed also may
present problems for lawyers or firms who have not
designated a single point of contact for e-newsletter
opt-out requests. This could be a particularly difficult
problem where individual lawyers are responsible for
communications with shared clients. An opt-out of an e-
newsletter generated by one member of a firm is equally
applicable to the remaining members of the firm. It is
therefore advisable that lawyers put in place procedures
to insure that accidental violations of the CAN-SPAM Act
do not occur because of an internal failure of
communication.
The problems created by spam will not be going away
anytime soon. Spam is cheap to create, easy to send and
hard to regulate. CAN-SPAM will do little to change
these facts. Nonetheless, the act's requirements for
unsolicited commercial e-mail will necessarily change
the behavior of legitimate marketers, and the
legislation has affected many unsuspecting professionals
who use e-mail to communicate.
Lawyers using e-newsletters to communicate with clients
and nonclients alike would be advised to comply with the
act's requirements in addition to the Rules of
Professional Responsibility. If there is any doubt about
the commercial nature of the message, lawyers should err
on the side of caution.
Some practical advice
Include an Internet-based opt-out (a direct click to
opt-out or a link to a Web site) in each and every e-
newsletter. Honor opt-out requests within 10 business
days. Create a centralized system for handling opt-out
requests. Ensure that all transmission information is accurate,
whether sent by you, your firm, or by a third
party. Ensure that the subject line is completely accurate
and is not materially misleading. Include clear and conspicuous identification that the
message is an ad or solicitation, even if the content of
the message is primarily informative rather than
commercial. Ask clients to agree in advance to receive e-
newsletters. If everyone on the e-mail list has
"opted in" (agreed to receive the
communication), you are not required to state that the e-
newsletter is an advertisement or solicitation. Provide a physical (street) address on each e-mail
sent. Consider using double opt-in by sending an e-mail to
recipients requesting that they confirm their desire to
receive the e-newsletter. Consider including in the e-newsletter information
about how you got the recipient's e-mail address.
Although not required by CAN-SPAM, this practice is good
public relations and is required by some ISPs before
they will deliver your e-mail to their users.
— Elizabeth Bowles
Bowles is president of Aristotle.Net Inc. in Little
Rock, Ark. Her e-mail is
ebowles@aristotle.net.
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