Resources & Publications

Since Jan. 1, legal professionals must be aware of the new Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, or Can Spam Act, when using electronic mail communications for unsolicited advertising. The minimal investment of e-mail to transmit publications, newsletters and announcements has made it the most cost-effective means of brand communications, displacing the traditional advertising mediums used by California practitioners.

Historically, Rule 1-400 of the state Rules of Professional Conduct and state Business and Professions Code Section 6158 governed an attorney's use of electronic mediums for engagement solicitation. Now, however, the Can Spam Act pre-empts state laws governing commercial e-mail solicitation, with the exception of regulations concerning unfair and deceptive trade practices. Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, Pub. L. No. 108-187, Section 8(b) (2003). Can-Spam prescribes, among other things, six basic rules for commercial e-mail messages. Senders must:

• Not use deceptive header information.
• Not mislead the recipient as to the origin of the e-mail.
• Acquire the recipient's implied or affirmative consent before transmitting an unsolicited commercial e-mail.
• Conspicuously place an electronic opt-out reply mechanism in the body of the e-mail that must remain live for at least 30 days after transmission.
• Provide a valid return postal address.
• Remove opt outs from distribution lists within 10 business days of receipt.

• Makes it illegal to send e-mails to e-mail addresses that have been harvested from Web sites.
• Criminalizes sending sexually oriented e-mails without clear markings.
• Implicates not only spammers but also those who procure their services. Indeed, if you fail to prevent spammers from promoting your products and services you can be prosecuted.
• Includes both criminal and civil penalties and allows suits by the Federal Trade Commission, state attorneys general and Internet service providers.

Can Spam applies, in fact, not only to attorneys but also to essentially all businesses in the United States that use e-mail. It defines a "commercial electronic mail message," which is regulated by this law, as any e-mail message "the primary purpose of which is the commercial advertisement or promotion of a commercial product or service (including content on an Internet website operated for a commercial purpose)" Section 3(2). Nearly any business e-mail would be covered: e-mail newsletters as well as stand-alone promotional e-mails. That doesn't mean that all e-mails are spam, only that the act governs them. Personal e-mails (and perhaps those from nonprofit organizations) don't seem to be covered. The act's definition of commercial e-mail explicitly excludes "a transactional or relationship message" (Sec. 3(2)(B)), covering e-mails contacting customers about their accounts, product upgrades and ongoing services.

While Rule 1-400(D) of the Code of Professional Conduct and Business and Professions Code Section 6158 cover deceptive and misleading electronic communications, the additional mechanical requirements may present challenges for some legal professionals.

Typically, firms either outsource their e-mail marketing or hire an in-house person to perform this function. With limited exceptions, the act prescribes that the advertiser, their affiliates, business units and transmitters should collectively be treated as the "sender," and all are potentially liable if a violation occurs. Further, if a recipient opts out from receiving a message from any of the above parties, this opt out likely will apply universally unless the recipient designates otherwise. Therefore, one must be cognizant of list management and data scrubbing issues when using this e-mail marketing.

To illustrate the point, if a law firm's partners and associates send out firm newsletters or announcements to their personal contact databases, an opt out by an e-mail recipient will impute notice to the entire firm. If more than one attorney has transmitted the commercial e-mail to the same recipient, a violation likely may occur if all of the transmitting attorneys do not honor the opt-out notification. Consequently, the firm either should coordinate everyone's distribution list frequently or filter all transmissions and opt-out replies through a centralized server to scrub the database in real time.

Although the act imposes duties for all advertisers, Rule 1-400 of the Rules of Professional Conduct and Business and Professions Code Section 6158 require additional measures that may fall outside federal pre-emption. For example, attorneys must retain a copy of the communication at least two years from the date of transmission, make certain disclosure requirements concerning the communication of case or award outcomes, and clearly identify the nature of the communications as an "advertisement," "newsletter" or similar designation.

Furthermore, the act authorizes the Federal Trade Commission to bring an action under the auspices of the Federal Trade Commission Act (15 U.S.C. Section 41 et seq.) and extends legal standing to state attorney generals and Internet Service Providers. The Can Spam Act imposes penalties of up to $250 per e-mail, with up to a $2 million cap (not including a provision of treble damages for aggravated violations), while implicating a strict-liability standard for all civil actions. Fortunately, however, a pattern or practice must be shown for both state and Internet service-provider claims, unless the violations involve deceptive practices. Further, provisions mitigate damages based on the advertiser's reasonable diligence to comply.

While the Can Spam Act has provided additional hurdles for the legal profession to participate in electronic mail advertising, the rules can be integrated into the current ethical and statutory framework. Nonetheless, California practitioners would be prudent to revise their electronic marketing policies as well as invest in available database management technology in order to negotiate their way through the current regulatory schemes.

David Michail manages a law practice in Los Angeles, focusing on advertising, marketing, media Internet, business and corporate law.