Lawyers In Cyberspace

Lawyers In Cyberspace:
Ethical and practical issues in serving the public

by
Richard S. Granat
President , MyLawyer.com, Inc.

Increasingly, members of the general public (including many older Americans), are handling some of their own legal matters as well as picking and choosing among legal tasks to determine when a lawyer is needed to resolve everyday legal problems. The public is faced with new choices for "unbundled" legal services and legal help on the web from case bidding to online document assembly and flat fee telephone advice. Presenters will review the current range of options and the ethical considerations. We will also look at some of the "best practices" for legal websites serving the public.

I. Understanding eLawyering Ethics

What are the ways that legal advice is provided online?

There are a variety of ways, including:

One-to-one e-mail communications
Responses to a question on a legal ''ask-an-expert'' website
Responses to a question on a message board dedicated to legal matters
Responses to a question asked on a newsgroup (or listserv) devoted to legal issues
Responses from a law firm or commercial website that has a pay-per-question feature
Discussions in a chat room

What are the risks of posting or e-mailing legal information?

There are a host of risks that relate to online communications, including:

Formation of inadvertent attorney-client relationship
Representation that may not be competent
Engagement in the unauthorized practice of law in a number of jurisdictions
Violation of legal advertising rules
Breach of confidentiality for client communications
Breach of restrictions on partnering and splitting fees with nonlawyers
Violation (or incorrect claim) of attorney-client privilege

Lawyers are licensed and regulated at the state level. In nearly every state, the highest state court adopts and enforces rules that relate to admission or licensing to practice' as well as to the actual practice of law. Violation of these rules can result in disciplinary proceedings leading to reprimands, fines, suspensions, and/or disbarment.

Source: There is a directory of the agencies that handle lawyer disciplinary actions at the American Bar Association website.

Can lawyers post messages on message boards answering legal questions without incurring an ethics risk?

Some risk is involved, particularly since most state bars have not addressed this issue.

The issue typically requires an analysis of the content of the message posted those messages that appear to solicit clients are treated as such. However, some state bars go as far as believing that any message posted by a lawyer is a per se solicitation or involves the unauthorized practice of law.

The critics of this viewpoint claim that it raises serious free speech issues. In addition, they attack it on the grounds that the content not the medium should control.

How can a lawyer address the risks of communicating online about legal information?

By being aware of the issues, most of which are currently resolved.

Ignorance of the issues poses the greatest risk, as most lawyers don't realize that they are taking a risk. Lawyers often provide advice online without taking the precautions that they normally would take in offline contexts.

E-lawyering ethical issues are complicated because there are so many ways in which lawyers can go about providing online advice. There are many gray areas.

What is the current status of the state bar associations providing opinions to online activities?

State bar associations' opinions on online activities is gradually moving from its infancy into a more developed stage.

However, many states still have not addressed many of the open issues, and a lot of uncertainty exists. Since quite a few states have not weighed in, lawyers often communicate in a vacuum and generally are insensitive to the risks they incur.

Source: A good article suggesting how Internet legal services can be facilitated to provide affordable legal services is Will Hornsby, Improving the Delivery of Affordable Legal Services Through the Internet: A Blueprint for the Shift to a Digital Paradigm (November 1999).

What is the future of online legal communications?

There are a variety of trends, many that are still in their infancy, and some that may not last. Some trends may not become universally accepted until state bars address the ethical issues they raised.

These trends include:

furnishing online legal advice as an economical way to deliver legal services
creation of online law firms (firms that don't restrict their practice to the jurisdictions where they have licensed attorneys)
bar associations that regulate activities of online lawyers, to develop standards that apply to member lawyers and promote client confidence in Internet lawyers.
more distance learning for lawyers and law students, particularly to earn CLE credits.

II. Online Legal Advice, Unauthorized Practice of Law and Forming Attorney-Client Relationships

What is "legal advice"?

When someone is engaged in the "practice of law."

The definition of "practice of law" depends on local or national law. Clearly, client representation before a judicial tribunal is the practice of law.

As applied to online activities, the definition is unclear and replete with gray areas. The state bar associations have been slow to provide opinions in many of these areas.

In addition, further complexities arise in the online context because ascertaining which jurisdiction's legal definition applies to certain situations is often unclear. This requires the resolution of "choice of law" issues.

Source: A great article on this topic is Professor Catherine J. Lanctot, Attorney-Client Relationships in Cyberspace: The Peril and the Promise, 49 Duke L.J. 147 (1999).

What is the distinction between "general information" and "legal advice"?

This is often a difficult distinction to make. "General information" is information that is provided generally and not in response to someone's question. "Legal advice" is more likely to be provided in response to an inquiry from someone about a specific problem or question.

Some critics believe that it's almost impossible to distinguish between general information and legal advice when a lawyer answers legal question online.

How may lawyers inadvertently engage in the unauthorized practice of law?

By providing legal advice in jurisdictions in which they are not licensed or admitted to the bar.

This issue involves determining whether an activity involves the "practice of law." This can be a difficult determination, particularly involving online activities that easily and inevitably transcend physical boundaries. So far, the states have generally moved slowly to handle these issues and there is some inconsistency among the states that have addressed it.

Source: Model Rule 5.5(a) provides: ''A lawyer shall not … practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction.'' In addition, Restatement of the Law Governing Lawyers Section 3 (Proposed Final Draft No. 2, 1998), addresses the ''Jurisdictional Scope of Practice of Law by Lawyer'' and Law. Man. Prof. Conduct 21:8001, 8017, discusses ''Prohibitions on Practice of Nonlawyers.''

Can a state discipline a lawyer who is not licensed in that state?

As a practical matter, not likely. A state's disciplinary board cannot take away a license to practice law from someone who does not have such a license.

As a result, the jurisdiction issues posed by online communications are more theoretical than real. However, they still pose some risk until the states directly address these jurisdictional issues.

Is it possible for lawyers to communicate about legal problems without establishing an attorney-client relationship?

It's uncertain.

It probably depends on whether the recipient of information from a lawyer perceives that the lawyer is providing general information rather than rendering assistance geared to the specific legal problem addressed in the online communication.

What are the consequences of establishing an attorney-client relationship?

A host of duties arise from the lawyer to the recipient of the legal advice, including:

maintaining confidentiality of communications,
ensuring competence of representation, and
guarding against conflicts of interest.

All of this adds up to potential malpractice liability and lawyer disciplinary proceedings.

What do critics say about a lawyer's ability to communicate only general information online?

It is difficult to avoid misunderstandings that an attorney-client relationship has been formed when lawyers claim that they only offer general information, rather than specific advice.

Some critics contend that lawyers cannot render competent advice in response to a legal question without forming an attorney-client relationship and accepting the duties that go along with it.

Source: For example, Pennsylvania Ethics Op. 98-85 (1998) addresses disciplinary authority, choice of law, and jurisdiction relating to lawyers' websites.

When is a recipient of online information likely to "reasonably believe" that the lawyer represents the recipient?

It's unclear, but many practitioners argue that the threshold for forming an attorney-client relationship is low. This is because when most people communicate with a lawyer, they believe they are receiving legal advice, not general information,- even if no fee is paid.

Professor Catherine Lanctot believes that online communications that provide specific legal advice likely will be viewed by courts and state bars as forming attorney-client relationships. She cites caselaw that intimates that providing requested advice is the equivalent to consent to forming an attorney-client relationship.

On the other hand, Comment (c) to Section 26 of the Restatement of the Law Governing Lawyers Section 26 (Proposed Final Draft No. 1, 1996) states that ''a lawyer may answer a general question about the law, for instance in a purely social setting, without a client-lawyer relationship arising.''

Under this Comment, the issue is whether lawyers are responding to a particular question or a ''general" question.

Is an express agreement or compensatory arrangement necessary to create an attorney-client relationship?

No. Even without an express agreement or payment of any fee, courts have found an attorney-client relationship if reasonable reliance can be established from the applicable facts and circumstances.

The test is a subjective one that focuses on the recipient's belief that a relationship exists.

Are there any state bar ethics opinions that address online legal advice?

Yes, there are severall. They generally have advised lawyers to beware of unintentionally forming an attorney-client relationship.

These state bar ethics opinions include:

Illinois Ethics Op. 96-10 (1997) - recipients become clients when lawyer participates in chat group or other online service that may involve offering personalized legal advice
New York City Ethics Op. 1998-2 (1998) - law firm that establishes discussion area on its website should be careful to avoid forming attorney-client relationship
Ohio Supreme Court Ethics Op. 99-9 (1999) - lawyers may ethically place an online intake form on their law firm's website that enables visitors to e-mail legal questions to the firm and receive responses by e-mail for a fee, subject to the same constraints that govern other methods of delivering legal services.
Tennessee Advisory Ethics Op. 95-A-576 (1995) - warning that attorney-client relationship could be created by providing specific information in response to recipient's question

Do disclaimers relieve attorneys that communicate online of being deemed to provide legal advice?

It's unknown, but it's unlikely that they are effective, particularly if a particular online communication otherwise suggests that legal advice is rendered (i.e. websites that claim that they provide legal services).

According to Professor Catherine Lanctot, if the legal advice given is tailored to the problem presented, it probably suffices to create an attorney-client relationship, regardless of the use of disclaimers. However, there is no caselaw addressing this topic in the online context.

Since this question is unsettled, disclaimers should be used since they are easy, inexpensive to use and may alleviate confusion about the formatting of attorney-client relationships.

Can a lawyer have duties to recipients even if no attorney-client relationship is formed?

Yes. A lawyer who responds to a question may incur ethical responsibilities even if no attorney-client relationship is formed.

For example, the Restatement of the Law Governing Lawyers Section 27 (Proposed Final Draft No. 1, 1996) takes the position that lawyers must use reasonable care in providing advice to a prospective client, and may not use information provided by the prospective client to that person's disadvantage in the event that the person did not become a client.

Can a lawyer provide a brief answer to a question via e-mail or in a message board post without offering the complete type of assistance that normally would be expected?

This raises the issue of "unbundling" legal services that is limited is some states.

For example, Colorado Ethics Opinion 101 (1998) allows lawyers to provide ''unbundled'' legal services so long as the lawyer clearly explains the limits of the representation, including the kinds of services not being offered and the probable effect of these limits on the client's rights.

Source: Model Rule 1.2(c) states that ''[a] lawyer may limit the objectives of the representation if the client consents after consultation.'' According to the comment, the scope of services may be limited by agreement with the client or by the terms under which the lawyer's services are made available to the client, but the representation must nevertheless meet the threshold of competence required by Rule 1.1.

Can nonlawyers provide legal advice online?

No this involves the unauthorized practice of law.

Even if the nonlawyer offers to split the fee with a lawyer this is often prohibited by state ethic rules. However, in most states, the fee splitting prohibition does not prevent a lawyer from paying fees to online referral services sponsored by nonlawyers.

Source: Splitting fees is prohibited by Model Rule 5.4.

III. Confidentiality of Client Communications and Attorney-Client Privilege

When does using e-mail implicate a lawyer's duty to protect confidential client communications?

In other words, how secure must your e-mail communications be? This is a concern since unencrypted e-mails are not very secure.

As could be expected, there are two sides to this argument. Similar to the sender or a recipient of a postcard, there is no way to determine if someone has intercepted and read or altered an e-mail. This security issue can be addressed by informing clients of the risks and letting them choose the level of security they would like. E-mail security is relatively easy to achieve through encryption but not many attorneys use it for encryption compatibility and convenience related reasons.

On the other hand, some argue that e-mails are not as vulnerable as claimed. In addition, it is noted that most other forms of communication can be intercepted cell phone conversations are a prime example.

Perhaps, the bottom line is that with all forms of communication, lawyers should take measures to reasonably secure confidential information.

Do lawyers violate client confidentiality rules by communicating with - or about clients - by e-mail?

It is unclear, as most states have not yet addressed this issue.

Client communications must be kept confidential. In fact, the duty of confidentiality arises even before the actual employment of the lawyer confidential information disclosed to the lawyer by a potential client is protected.

Only a handful of states have issued opinions addressing this issue, and their opinions vary significantly. The first states to address this issue required lawyers to get consent from clients to send unencrypted e-mails after disclosing the risks of such transmissions (e.g., Iowa and North Carolina). On the other hand, the most recent ethics opinions provide that lawyers may ethically communicate with clients via unencrypted e-mail (e.g., Arizona, Illinois, South Carolina and Vermont).

Source: Model Rule of Professional Conduct 1.6 precludes a lawyer from disclosing "information relating to representation of a client unless the client consents after consultation." DR 4-101 of the Model Code of Professional Responsibility prohibits the lawyer from "knowingly" revealing information protected by the attorney-client privilege and other information gained in the professional relationship that might embarrass or be detrimental to the client or that the client wants to remain secret.

Iowa Bar - when a lawyer transmits sensitive material via e-mail, it must first obtain written acknowledgment from the client of the risk of the revelations of confidences in violation of the ethical rules and the client's consent to communicate via the Internet or non-secure Intranet or other forms of proprietary networks. Otherwise, the communication must be encrypted or protected by a password, firewall, or other generally accepted equivalent security system.
North Carolina - requires that lawyers take the same precautions required to protect client confidentiality when communicating via a cellular or cordless telephone. Specifically, the lawyer communicating with or about a client via e-mail must first select the mode of communications that, in light of the exigencies of the existing circumstances, would best maintain any confidential information that might be conveyed in the communication. In addition, the lawyer must advise the other parties to the communication of the risk of interception and the potential for confidentiality to be breached.
Illinois - a lawyer does not violate the ethical duty to maintain client confidentiality by communicating with a client using unencrypted e-mail because (1) the expectation of privacy for e-mail is no less reasonable than the expectation of privacy for ordinary telephone calls; and (2) the unauthorized interception of e-mail is illegal. It is not necessary for the lawyer to seek specific client consent to the use of unencrypted e-mail, except for unusual circumstances involving an extraordinarily sensitive matter that might require enhanced security measures like encryption.
Arizona - lawyers may ethically communicate with clients via unencrypted e-mail, but it is preferable to protect attorney-client communications to the extent practical.

Can lawyers invoke the attorney-client privilege for their e-mail communications?

Probably - but only if it is specifically and not indiscriminately, invoked.
The question is whether the attorney-client privilege was waived because information between the attorney and client was obtained by a third person, either inadvertently or through illegal means.

A court would probably evaluate this issue by weighing the expectations of privacy in e-mail communication with the facts and circumstances including the type of e-mail involved and the intended recipient (i.e. sent to one person versus a group).

A problem arises when a lawyer claims that every e-mail she sends is covered by the attorney-client privilege, even when such e-mail are not sent to clients or do not include content that needs to be protected. In these circumstances which are not usual nearly universal today a court may find that the claim of the privilege cannot be taken seriously since the claim is automatically generated by the lawyer's e-mail program.

Source: A number of courts have held that communications conducted through cordless telephones were not subject to a reasonable expectation of privacy for Fourth Amendment purposes. These decisions were partially based on the greater likelihood that these calls might be intercepted when compared to dedicated line telephone calls.

When does storing client information electronically implicate a lawyer's duty to protect confidential client communications?

It is imperative that client information in a law firm's computer system requires protection from hackers. Firewalls are essential to protect data.

Viruses are also a concern but they normally involve the possible loss of data and do not implicate confidentiality concerns.

IV. Conflicts of Interest

How can communicating online create conflict of interest issues for potential clients?

A lawyer may receive confidential information in an e-mail or other online communication that could ultimately disqualify the lawyer (or the related law firm) from representing a longtime client in a matter. This is akin to what could happen, when a lawyer takes an unsolicited phone call and listens too long before asking who the opposing party is.

The ABA Model Rules do not expressly address a lawyer's ethical duties to a prospective client - but the ABA's Ethics 2000 Commission has drafted a new standard on the subject. The draft would allow the lawyer to be placed behind a ethical Wall in the law firm and allow continued representation, except that the lawyer would need to take reasonable steps to limit the extent of confidential information received during the conversation as a condition for avoiding imputed disqualification of the firm.

Source: Arizona Ethics Op. 97-04 (1997) advises lawyers against answering specific legal questions posed in an online chat room or newsgroup because of the inability to screen for a potential conflict with existing clients and the possibility of disclosing confidential information.

V. Advertising of Legal Services

Is it "legal advertising" if a lawyer responds by e-mail to a question?

Not likely, so long as the e-mail is not sent to a wide group, such as a listserv discussion group.

A lawyer's response via a one-to-one e-mail regarding a legal question probably does not by itself constitute legal advertising that would triggers the requirements of ethics rules relating to marketing legal services.

However, many legal websites combine legal advice on the website with a directory in which participating members display their credentials in the hopes of obtaining online referrals. Sometimes, the lawyers' responses to questions are posted publicly as part of the process of obtaining referrals. In these cases, the advertising rules may be triggered.

Source: The following ethics opinions provide guidance on online advertising:

Massachusetts Ethics Op. 98-2 (1998) - listing in online directory must comply with rule on claims of specialization and other rules.
New York City Ethics Op. 1998-2 (1998) - law firm that establishes discussion area on its website should be careful to avoid impermissible advertising or solicitation.
Ohio Supreme Court Ethics Op. 99-3 (1999) - information in law lists and directories should conform to rules that govern lawyer advertising.
Tennessee Formal Ethics Op. 99-F-144 (1999) - lawyers who list practice areas on Internet, including law directories or other websites available to public, must comply with state ethics rule's disclosure requirements regarding certifications of specialization.

Is a lawyer's website subject to the advertising rules?

It depends on the jurisdiction, but it is likely that a lawyer's website is subject to advertising rules if the site seeks to solicit clients.

In theory, a legal website is subject to every jurisdiction since it is accessible from anywhere in the world. As a result, each website should conform to the ethics rules of each state (and each country). As a practical matter, this is nearly impossible to do as some states have detailed advertising rules.

As a general rule of thumb, if a legal website merely provides legal information of general interest, it probably does not constitute advertising. If the site does seek to obtain clients in some manner, at a minimum the site sponsor should seek to comply with the states in which it has physical offices. This is because these states have the power to revoke, limit, or suspend a lawyer's license to practice law. It is nearly impossible for a state to discipline a lawyer who is not licensed in that state.

The American Bar Association Model Rules of Professional Conduct (which are not binding on states but often are adopted by states) provide that a lawyer can advertise as long as the communication is not false or misleading. The official comment to Rule 7.2 defines advertising as "an active quest for clients, contrary to the tradition that a lawyer should not seek clientele."

Under this definition, most websites include "advertising" because they involve an active quest for clients in some manner such as law firm sites that encourage visitors to contact the firm's lawyers. Most states have adopted a standard that is at least as restrictive as this standard.

Source: The following are examples of state advertising rules:

California has very detailed advertising standards that require certain disclosures and type sizes in the Standards for Rule 1-400 of the Board of Governors of the State Bar of California.
New York requires all lawyers who advertise through a medium other than radio, television, or traditional print media to submit a copy of the advertising communication to the Disciplinary Committee of the "appropriate judicial department" in New York Lawyer's Code of Professional Responsibility, DR 2-101(F).

What should lawyers consider before they participate in online directories?

Lawyers should consider whether the particular online directory constitutes a referral service so as to trigger ethics rules on referral services.

Ethic rules on referral services often encompass a number of requirements, such as use of disclaimers, making certain disclosures, keeping copies and archives and content restrictions. If an online directory qualifies as a referral service, the lawyer cannot rely on the site sponsor to abide by these requirements it is the lawyer's own obligation.