Volume 20, Number 4
TEN WAYS TO RISK ETHICAL NIGHTMARES WITH YOUR COMPUTER
By Lise Pearlman
Lise Pearlman was the first presiding judge of the California State Bar Court (1989-95) and is now an expert witness and consultant on legal ethics and an arbitrator/mediator with Alternative Resolution Centers. She is a member of the California State Bar Standing Committee on Professional Responsibility and Conduct.
Not using computers in a modern law practice seems almost unimaginable now, but certain uses can land a lawyer in some very hot water, including malpractice claims, disqualification from a pending case, and ethics violation charges. Certain common maneuvers raise obvious ethical problems, but others may not look like violations to those who are accustomed to using online resources and electronic documents every day. You may want to review the following hypotheticals and consider how you would handle similar situations in your practice.
1. You charge your clients for computer-assisted legal research. Do you clearly state this in your fee agreement? Guerrant v. Roth1 ruled that absent clear agreement to the contrary, computer-assisted legal research was a form of attorney fee for which no separate recovery was available. Even if you have given proper notice, are the computer research fees reasonable? A disciplinary action might result if the fees, coupled with attorney fees otherwise recoverable under the agreement, greatly exceed established norms.
2. You share office space with a lawyer who has a separate law practice, but you use a shared computer system and the same support staff. You and your officemate could be in trouble if you haven't instructed shared staff about how to maintain each attorney's client confidences. In addition, protecting all files from unrestricted access is necessary to properly preserve client confidences and secrets. Sharing a fax line raises similar issues.2 With adequate precautions, you can use application service providers (ASPs) for remote computer services such as outsourced billing, file storage, e-mail, backup, accounting, etc., but this may raise serious confidentiality concerns.3
3. You routinely e-mail unencrypted, confidential communications and memos to your clients. Encryption is generally not required to satisfy Model Rule 1.6 absent extraordinary circumstances.4 Unauthorized interception of Internet transmissions is illegal under the Electronic Communications Privacy Act; however, e-mail is easily intercepted. You should get your client's approval before exchanging any potentially sensitive information by e-mail. Also be careful to preserve client confidences by using password access to confidential data in your laptop computer in case it is stolen or lost. Failing to back up data stored in a lost computer may itself be deemed an act of negligence that falls below the standard of care, and could subject you to disciplinary action if repeated.
4. You participate in discovery or in a business transaction where the sides exchange Word or WordPerfect documents on disks. Previously deleted drafts, confidential comments, or other now-invisible notations made when tracking revisions to the documents, however, are recoverable in many cases-with potentially disastrous consequences if accessed by the opposing party. Being savvy about the transfer and protection of document files is essential if you wish to avoid breach of confidentiality in the twenty-first century.
5. You pay an Internet advertising service a monthly fee plus a percentage of the client fees you obtain through the site. Fee sharing with non-lawyers is not permitted. 5 On the other hand, payment to an advertising service either of a fixed fee for advertising the law firm or an advertising fee determined by the number of hits may be permitted.6 Participation by lawyers in website services that post requests for proposals (RFPs) for corporate work may also be permitted, depending on the particulars.7
6. YOU ENTER AN INTERNET CHAT ROOM SEEKING NEW CLIENTS. A NUMBER OF STATES CONSIDER CHAT ROOMS AND OTHER REAL-TIME COMMUNICATIONS AS IN-PERSON SOLICITATIONS, WHICH ARE PROHIBITED.8 In other states, you nevertheless may be prohibited from entering a victims' support group chat room. In California, for example, it is presumptively improper to deliver any communication to a potential client "whom the member knows or should reasonably have known is in such a physical, emotional, or mental state that he or she would not be expected to exercise reasonable judgment as to the retention of counsel."9
7. You advertise your firm on a website. In general, websites are covered by guidelines for any other form of advertising-permissible if they are not misleading.10 However, you must be sure to include in your website the geographic areas in which you are licensed to practice, or you may violate other state laws regulating the unauthorized practice of law.11 If you say that you are of counsel with a law firm in a neighboring state, you should comply with the applicable advertising rules of that state even if you will not personally handle matters for clients from that state.12
8. Your law firm website lists e-mail addresses for all lawyers in the firm and invites users to address legal questions to them. A user sends a query that includes details about a potential claim, to which you do not respond. So far, so good-unsolicited e-mail inquiries do not pose a confidentiality problem.13 But by posting individual lawyers' e-mail addresses and inviting inquiries, the firm risks inadvertently creating an attorney-client relationship. Post prominent disclaimers on the website and discourage potentially confidential disclosures; a conflicts check and a representation agreement should precede such disclosures.
9. You send a mass e-mail to a list of potential clients, such as homeowners in your state, advertising your availability for legal assistance. Mass e-mails are like targeted snail mail, which is protected commercial speech under the First Amendment.14 Nevertheless, e-mail must comply with regulations governing attorney advertising.15 Deceptive claims within widely disseminated e-mails could subject you to serious discipline.16
You visit the website of the opposing party in a lawsuit and engage in interactive communication using e-mail. Viewing public information posted on an opposing party's website is not a problem, but interactive contacts may constitute prohibited communication with persons known to be represented by other counsel.17
A lawyer's fundamental responsibilities are not altered by new technology. You must comply with the applicable rules for the areas in which you are licensed to practice and conduct business or are otherwise subject to regulation. Applicable standards of ethical conduct are coming to include reasonable safeguards of client confidentiality in electronic forms. You can find lists of excellent resources on the impact of technology on law practice on the ABA Law Practice Management Section's site, www.abanet.org/lpm/lpt/home.html, or at In-ternet Legal Services, www.legalethics.com.
1. 777 N.E. 2d 499 (Ill. Ct. App. 2002).
2. D.C. Ethics Op. 303.
3. See, e.g., N.D. State Bar Ass'n. Ethics Comm. Op. 99-03. An excellent discussion of risks posed by use of ASPs is Hricik and Krakaur, ASPs: Very Dangerous? You Go First, at www.legalethics.com/index.law, click article title.
4. See, e.g., Del. State Bar Ass'n Comm. on Prof'l Ethics Op. 2001-02; Utah Ethics Op. 00-01.
5. See Md. State Bar Ass'n Comm. on Ethics Op. 01-03 (plan poses risk of conflicts, attorney-client privilege issues, and prohibited fee splitting).
6. S.C. Bar Ethics Advisory Op. 01-03; see also Ohio Sup. Ct., Bd. of Commissioners on Grievances and Discipline Op. 2001-2.
7. Compare D.C. Op. 302 with New York City Op. 2000-1.
8. See, e.g., Utah Ethics Advisory Op. 97-10; Fla. Bar Ethics Op. A-00-1.
9. Cal. Rule of Prof'l Conduct 1-400; cf. Ariz. Bar Ass'n Ethics Comm. Op. 02-08 (2002) (law firm may sponsor booth at trade show that visitors approach voluntarily but must avoid doing so where particularly vulnerable people congregate, such as victim support group meetings).
10. See, e.g., Cal. State Bar Formal Op. 2001-155.
11. See, e.g., S.C. Ethics Op. 94-27 (1995) (advertisement that may reach potential clients in other jurisdictions must identify geographic limitation of lawyer's practice).
12. See, e.g., Ariz. State Bar Comm. on Rules of Prof'l Conduct, Op. 97-04; Iowa Formal Op. 96-14. For an in-depth discussion of permissible versus prohibited Internet advertising, see WILLIAM E. HORNSBY, JR., MARKETING AND LEGAL ETHICS (3d ed. 2000).
13. See Ariz. State Bar Comm. on Rules of Prof'l Conduct Op. 02-04.
14. Shapero v. Ky. State Bar Ass'n, 486 U.S. 466 (1988).
15. See, e.g., Cal. State Bar Formal Op. 2001-155.
16. See, e.g., In re Morse, 11 Cal. 4th 184 (1995) (attorney who mailed several million misleading letters advertising legal assistance to homeowners received lengthy practice suspension and severe civil penalties).
17. See Ore. State Bar Legal Ethics Op. 2001-164.