General Practice, Solo & Small Firm DivisionBest of ABA Sections

FALL 1997

Antitrust Law

Legal Ethics and the Internet

by Kathryn M. Fenton

The Internet, World Wide Web, and other electronic communications networks offer lawyers an array of new tools for data gathering, information exchange, document transfers, enhanced communications with peers and potential clients, and novel opportunities for marketing and promotion.

As attorneys begin to incorporate the opportunities offered by electronic communications into their practices, questions of legal ethics and professional responsibility probably are not foremost on their minds. Yet the Internet and other electronic networks provide an array of complicated ethical issues that can present pitfalls for the uninitiated and unwary.

 

Advertising and Marketing Restrictions. Some claim that in the near future it will be more important for an attorney to have a Web site than a Yellow Pages or Martindale-Hubbell listing. Yet the use of electronic networks for lawyer advertising and marketing activities raises a number of ethical concerns.

A lawyer seeking to attract new clients across multiple jurisdictions frequently is confronted with inconsistent requirements relating to the nature and form of the marketing message, required disclosures, and limitations on who can be solicited. As complicated as these ethical issues may be when dealing with print and video media, they become even more complicated when applied to electronic communications. A number of jurisdictions have taken the position that Internet communications are a form of advertising and thus subject to the state bar’s ethical restrictions, which may include bans on the use of testimonials, prohibitions on self-laudatory statements, disclaimers, and labeling the materials presented as advertising.

Some states require that advance copies of any advertising materials be submitted for review by designated bar entities prior to dissemination. For Internet communications, which can be changed almost instantaneously and are updated frequently, it is unclear just how this advance review can be accomplished. Other states require that attorneys keep a copy of their Web site and any changes made to it for three years, along with a record of when and where the Web site was used.

The content of marketing communications also may raise concern. A common feature of law firm home pages is the identification of areas of practice, and biographies of attorneys associated with the firm. Descriptive terms such as "expert" or "specialist" may highlight the skills of a particular attorney, but some jurisdictions either totally ban or significantly restrict the use of these designations.

The Internet also represents an unparalleled means of communicating with large numbers of prospective clients. Yet this use of the Internet to attract clients may raise the same concerns with intrusiveness and attorney overreaching that underlie the ethical bans on in-person or telephone solicitation.

Some jurisdictions have concluded that Web sites do not constitute prohibited solicitation because Web site information is not indiscriminately presented but must be affirmatively sought out. The fear of electronic "ambulance chasing," however, was fueled several years ago when two immigration lawyers posted an advertisement offering their services to obtain green cards to thousands of Internet user groups.

 

Unauthorized Practice of Law. All states have statutes or ethical rules that make it unlawful for persons to hold themselves out as attorneys or to provide legal services unless admitted and licensed to practice in that jurisdiction. In addition to barring practice by laypersons, these provisions also affect practices that extend across state or national boundaries, as is the case with the Internet.

There are no reported decisions on this issue, but a handful of ethics opinions and court decisions take a restrictive view of unauthorized practice issues. For example, the court in Birbower, Montalbano, Condon & Frank v. Superior, relied on unauthorized practice concerns in refusing to honor a fee agreement between a New York law firm and a California client for legal services provided in California because the New York firm did not retain local counsel and its attorneys were not admitted in California.

 

Confidentiality Concerns. Preserving clients’ confidences is of critical importance in all aspects of an attorney’s practice. An attorney using the Internet to communicate with a client must consider the confidentiality of such communications.

Obviously, not all electronic communications raise client confidentiality concerns. Web sites are intended to be public fora and offer general access. Using the Internet to communicate with clients on confidential matters, however, raises a number of issues, including whether such communications: (1) might violate the obligation to maintain client confidentiality; (2) result in a waiver of the attorney-client privilege if intercepted by an unauthorized party; or (3) create possible malpractice liability.

Some recent ethics opinions suggest a need for caution. Iowa Opinion 96-1 states that before sending client-sensitive information over the Internet, a lawyer should either encrypt the information or obtain the client’s written acknowledgment of the risks of using this method of communication.

Some attorneys have adopted internal measures to protect electronic client communications, including: asking clients to consider alternative technologies, encrypting messages to increase security, obtaining written client authorization to use the Internet and acknowledgment of the possible risks in so doing, and exercising independent judgment about communications too sensitive to share using the Internet.

 

Client Conflicts. Because of the business development potential of "chat rooms," bulletin boards, and other electronic opportunities for client contact, many attorneys see the Internet as a powerful client development tool. What some fail to recognize, however, is that the very opportunity to attract new clients may be a source of unintended conflicts of interest.

Take, for example, one of the most common uses of Internet chat rooms: a request seeking advice from attorneys experienced in dealing with a particular legal problem. Attorneys have been known to prepare elaborate and highly detailed responses to such inquiries. Depending on the level and nature of the information received and the advice provided, however, attorneys may be dismayed to discover that they have inadvertently created an attorney-client relationship with the requesting party. At a minimum, given the anonymous nature of many such inquiries, they may face the embarrassment and potential client relations problem of taking a public position or providing advice contrary to the interests of an existing firm client.

Some operators of electronic bulletin boards and on-line discussion groups have tried to minimize the client conflict potential by providing disclaimers or including as part of the subscription agreement the acknowledgment that any participation in on-line discussions does not create an attorney-client relationship. The Arizona State Bar recently cautioned that lawyers probably should not answer specific questions posed in chat rooms or news groups because of the inability to screen for potential conflicts with existing clients and the danger of disclosing confidential information. Because the consequences of finding an attorney-client relationship are severe and may result in disqualification from representing other clients, the prudent lawyer should carefully scrutinize the nature and extent of any participation on on-line chat rooms and similar venues.

Kathryn M. Fenton practices in Washington, D.C., with Jones, Day, Reavis & Pogue.

 This article is an excerpted version of the one that originally appeared in Antitrust, Summer 1997, page 43.

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