General Practice, Solo & Small Firm DivisionSolo Newsletter
SUMMER 1999 ISSUE
Technology and Malpractice: You Might Be Skating on Thin Ice
By Andrew S. Breines
So, the Internet has arrived and your law firm doesn't want to get left behind. You contact your local computer guru and plan on upgrading your systems in order to "get online." But first, you want to know a little about the downside of the new technology, and how best to make use of it while still protecting your clients’ expectations of service and privacy.
And Web sites? Nearly all of us either have one, or are considering creating one in the very near future. You should keep in mind that, due to the Internet’s ability to increase the channels through which law is practiced, it is clear that the Internet will change the practice of law as no other technology has.
If you know the risks, you can try to avoid problems. Before you jump into the Internet, be aware of the liabilities you might be facing:
• False Advertising
• Unauthorized Practice of Law
• The Changing Nature of the Attorney-Client Relationship
As for false advertising, what if a personal injury attorney’s Web site states that clients pay nothing unless the attorney obtains a recovery? The advertisement (Web site) is misleading because the client will in fact be liable to the attorney for the costs associated with the case, whether or not a successful recovery is obtained.
Some states require that e-mail sent by an attorney to many recipients or posted on a bulletin board be labeled "advertising" since this type of message is similar to regular mail that would violate non-solicitation rules if not labeled.
The Internet has no boundaries, and it is reasonable to assume that members of the public located outside your jurisdiction will view your Web site. Proper use of disclaimers is of paramount importance to avoid unauthorized practice issues.
Inadvertently establishing an attorney-client relationship is a significant risk. Think of the complaints that could arise due to the failure to respond to an e-mail message from a client or a prospective client. Or worse, what if you responded to a client’s e-mail, but instead of replying to the client’s message, you sent it to the wrong e-mail address? Inadvertent or not, the information is now outside the attorney-client relationship.
Another way that the Internet is changing the nature of the attorney-client relationship is the desire for clients to be able to contact their attorneys at any time and expect an immediate or close to immediate response to messages. Will unreturned e-mail become as large a complaint as unreturned phone calls?
Finally, is it malpractice to fail to address Y2K issues in your law firm? What about failing to address the issue with a client that is computer dependent or with suppliers that are computer dependent? Current versions of malpractice insurance renewal applications contain several questions regarding our internal Y2K readiness and also inquire whether or not we advise our clients regarding their Y2K readiness.
For additional information the Web site www.legalethics.com provides summaries of decisions from each state, ethics opinions from the states and the American Bar Association, and a discussion of disclaimers for attorney and firm Web sites.
Andrew S. Breines is with Aresty International Law Offices, P.C., in Boston.