Likewise, retention would be required of commercial communications that link to other information which makes similar representations. In addition, the rule may be narrowed by providing an expressed opt-out, excusing the lawyer from the requirement to retain those types of commercial communications which are highly unlikely to result in a material misrepresentation. The comments should note, however, that an opt-out only means a lawyer is excused from the requirement to retain the material, but is not excused from the rule barring false or misleading communications. One overriding aspect of client development on the Internet when compared to other media, is its speed and fleeting nature. As noted, web sites are relatively easy to change and lawyers should be encouraged to keep the contents of their sites current.
Some law firms change their sites every few days.
Similarly, those who receive e-mail typically delete the messages soon after they are read, unless they are archived for future reference. These dynamics suggest that there is a need to require lawyers to retain their Internet-based commercial activities. At the same time, the value of requiring retention for an extended period is highly questionable, as is the constitutional validity of such a requirement. The final prong of the Central Hudson test requires the regulation be no broader than necessary to achieve the state's regulatory purpose. The purpose of facilitating enforcement may be sufficiently met with a requirement to retain material disseminated through the Internet for 60 or 90 days after it is last disseminated, rather than the two years called for in the Model Rule.