 Legal Ethics
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Legal Ethics in Cyberspace
By Stephen T. Maher
The development of a virtual online space where lawyers can advertise, chat, make and answer posts, send and receive e-mail, find clients and communicate with them, has happened so fast that most codes governing lawyer conduct have not had a chance to catch up. That does not mean that there are no rules governing online conduct. It means that you may have to look farther than the published Canons or Rules of Professional Conduct in a jurisdiction to find the policies that exist or are being developed to govern lawyer conduct in Cyberspace. Since legal ethics rules vary by jurisdiction, it is not possible to generalize with complete confidence about what requirements now exist. But it is possible to identify trends and to use certain jurisdictions as examples of those trends. That is the approach taken here.
Published rules generally do not address online realities because they were adopted before lawyers went online. The old Canons of Ethics were first adopted by the American Bar Association in 1908. The Model Rules of Professional Conduct were promulgated by the American Bar Association in 1983. The first law related site on the World Wide Web was the Cornell Law School site, and it opened its virtual doors in 1993. Most lawyers did not discover the Web until years later.
The issue of lawyer advertising is at the forefront of much online lawyer regulation because regulators tend to be concerned about what attorneys may say or do to attract clients online. Within the last several years, many lawyers have discovered the Internet and have participated in many online activities. A growing number of lawyers have established sites on the World Wide Web. Lawyers also participate in chat groups or online discussion forums. When are lawyers "advertising" online? An expansive interpretation would suggest that whenever lawyers are engaged in commercial speech with nonclients, they are advertising. Regulators will likely find that many lawyer Web pages are advertisements. Given that fact, it is a good idea to follow the advertising rules in your jurisdiction when setting up a Web site. Florida is now considering whether participation in chat rooms for the purpose of attracting clients is improper. Similar scrutiny is likely in other jurisdictions. When called upon to judge lawyer conduct online, a regulator's first response will probably be to look to existing rules and try to apply them to online conduct. Application will not always be easy or certain, because how you apply existing regulations may depend on how you analogize online conduct to offline conduct. For example, when speaking before an audience on a panel with a state bar ethics lawyer, I asked that lawyer whether an attorney could use a "sig" file in a response to an online post under existing disciplinary rules. First, since she did not know what a sig file was, I had to explain that it is several lines of text added by posting or e-mail software at the end of the post that identifies the person doing the posting. What it contains is a personal decision, but it often contains information like contact information, the location of the person's Web site, and sometimes even includes a favorite quote. She analogized a sig file to handing a person you have just met at a cocktail party your business card without being asked for it, and suggested that attaching a sig file constituted improper solicitation. I analogized it to letterhead, as sig files are and have been customary with people doing posting for quite some time. I suggested that there should be nothing wrong with using them, so long as the content of the sig file is not otherwise objectionable.
This example shows several things. First, it demonstrates that regulatory authorities are unlikely to understand the Internet as well as some of the practitioners who are on the cutting edge. Second, it shows that regulatory authorities are likely to regulate by analogy, and what analogies they choose will make a big difference in the outcome. Since they tend not to understand Cyberspace that well, their analogies may be flawed. Third, there is a big need for greater understanding of Cyberspace among legal regulators and, only after that education is complete, a need for new regulations designed to adjust the law in ways that will not curb development in this new area unnecessarily.
The trendsetting jurisdiction in adopting ethics rules for Cyberspace has been Florida, my home state. Regulation began informally and has gotten more formal as the years progressed. Around 1995, an article was published in the Florida Bar News, a bimonthly newspaper sent to all licensed Florida practitioners, alerting them to the fact that attorney Web pages would have to be reviewed by the Florida Bar, which regulates lawyer conduct in Florida subject to the supervision of the Florida Supreme Court, before being posted. I created one of the first large firm Web sites in the state, and sent a printed version of the more than 100 page site in to the Bar for approval with a check for $100.00. After receiving back a redlined version, I made the requested changes and launched the site.
Since that time, the Bar has changed its position twice, first by distributing a page long unpublished document called "Internet Guidelines" which was available from the Bar upon request and then by adopting its Internet policies as a Rule of Professional Conduct. This shows that regulators have unpublished policies that apply to lawyer conduct in Cyberspace that you may nor know about. The only way to find them is to call the regulators and ask. This is more common in this area than you may think. I gave a speech on Internet Ethics earlier this year in a state I had not visited before. A call to the regulators there produced a three page fax of unpublished material that the articulated the regulators' policies in this area. I think that handout was the most valuable part of my speech for those lawyers.
The Florida Internet Guidelines loosened the filing requirement from including the whole site to just including the "homepage", by which the Bar meant the first page of the site. The Guidelines also required a "hiring disclosure" ("The hiring of a lawyer is an important decision that should not be based solely upon advertising") be placed on only the first page of the site. The rationale here was that the inside pages of the site were visited voluntarily by the prospective client, where the first page was not. This rationale is obviously flawed, because many people will find a site through search engines and arrive at the "middle." The whole idea of front and back and middle shows that regulators were looking a hyperlinkled set of pages as a book, when that analogy really does not fit. In any event, the Guidelines have now been superseded by a new published Rule of Professional Conduct. The filing requirement for World Wide Web pages has been eliminated.
Florida adopted new Rule 4-7.6 titled "Computer-Accessed Communications" when it adopted new advertising regulations on December 17, 1999, It defined computer accessed communications as "information regarding a lawyer's or law firm's services that is read, viewed or heard directly through the use of a computer." It specifically include "Internet presences such as home pages or World Wide Web sites, unsolicited electronic mail communications, and information that appears on World Wide Web search engine screens and elsewhere." Rule 4-7.6 (a). Separate subsections of the rule govern "Internet Presence" and "Electronic Mail Communications." Subsection (b) titled "Internet Presence" provides that "All World Wide Web sites and home pages accessed via the Internet that are controlled or sponsored by a lawyer or law firm and that contain information concerning the lawyer or law firm's services" "shall disclose all jurisdictions in which the lawyer or members of the law firm are licensed to practice law" and "shall disclose 1 or more bona fide office locations" and "are considered to be information provided upon request." Rule 4-7.6(b).
By mixing Internet and Web the rule fails to make clear whether newsgroup posts are within this section. They are on the Internet but not the Web. I asked a bar ethics lawyer this question and she said she thought they were not included. Does this mean that lawyers must file law related newsgroup posts with the Bar? If those posts were included within (b), they would not need to be filed with the Bar, because Rule 4-7.8(g) makes things under (b) exempt from that requirement, which applies to advertising generally.
There is also ambiguity concerning whether materials within (b) must be maintained for three years even though they are not filed. Since Rule 4-7.8 specifically provides for exemptions from the "filing requirements of Rule 4-7.7," it is possible to argue that it does not provide an exception to the retention requirements of that rule as well. I do not think that many lawyers are actually retaining copies of every version of their Web pages for three years, although that might be the most prudent course, especially if a lawyer needs to defend against the claim that something on the page violated some regulation. The reality has been that such complaints have been rare. The retention of three years of law firm Web pages may require careful attention, because, unlike a print or television ad that remains the same, a Web page may change every few days if it is updated regularly. Retention also raises the question of what form the retention must take (paper copies may not show dynamic aspects of the pages). The point here is even the clarifications may not be clear.
The new rule specifically subjects lawyers to the Rule 4-7.9, which requires that the lawyer or law firm create written information about the lawyer or firm and have it available for distribution to those requesting information. In the area of e-mail, Rule 4-7.6(c) provides limitations on sending unsolicited e-mail in situations similar to those where direct mail solicitation is restricted.
The Comments to the rule explain the different rationales that underlie the rule governing Web sites and e-mail. The stricter regulation of unsolicited e-mail is driven by the fact that it is unsolicited, where the Bar assumes that pages on the Internet will be accessed at the prospective client's request.
Other states have not followed Florida's course of adopting a new rule specifically governing Web pages. Texas, which like Florida has been in the forefront of Lawyer advertising regulation, considered adopting a separate rule in 1998, but decided not to follow that course. There is an "Interpretive Comment" on the Texas Bar Web site, at www.texasbar.com/attyinfo/adrev/arcintcom.htm that provides guidelines for home pages and information linked to that screen. Those guidelines require the home page first screen to include the geographic location of the firm's principal office and the filing of a hard copy of that page with the Texas Bar, including its URL, and also require the filing of "any material changes in format that vary from the first screen of the original home page." Pre-approval of the first screen of the home page is available. Information beyond the first screen that is "primarily concerned with soliciting prospective clients" is considered a public media advertisement and is subject to Part 7 of the Texas Disciplinary Rules of Professional Conduct. References to a firm's accomplishments, verdicts, judgments, court and administrative rulings are also regulated.
The ABA Model Rules of Professional Conduct address communications about the lawyer or lawyer's services in Rule 7.1 and lawyer advertising in rule 7.2. Rule 7.1 prohibits communications that are false or misleading. Four types of communications are deemed false or misleading. First, communications that contain a material misrepresentation. Second, communications that contain an omission of fact necessary to make the communication as a whole not materially misleading. Third, communications that are likely to create an unjustified expectation about results the lawyer can achieve. Fourth, communications that compare a lawyer's services with those of other lawyers, unless the comparison can be factually substantiated. Most states have followed this lead.
These provisions are really quite strict, certainly stricter than limits in general consumer protection laws. They limit puffery and related forms of self-promotion. Many regulators take the position that telling clients about past results can create unjustified future expectations, and they do not allow lawyers to generally suggest their superiority to their peers. The Web may raise these issues in new ways. Can a lawyer's URL (Internet address) contain in it some suggestion of general superiority, such as "best lawyer." I recently asked a state bar disciplinary counsel this question, and she advised me that her office's position was to be concerned if such a URL was used in other law firm materials, such as business cards and letterhead.
In Georgia, the Bar has adopted new Rules of Professional Conduct that will replace the Old Canons on January 1, 2001. Georgia has not adopted rules that specifically address the Internet or e-mail, but the new ethics rules follow the Model rules in prohibiting false, fraudulent, deceptive and misleading communications. Like the Model Rules, the new rules demonstrate concern over the creation of unjustified expectations and about comparisons with other lawyer's services.
Advertising is not the only online legal ethics issue. Online discussions of legal issues with potential clients creates a myriad of concerns. When a client leaves a legal question posted online, and lawyers respond, how should that interaction be viewed? Is an attorney-client relationship been created when the lawyer provides legal advice online? The facts of individual situations must be considered to answer this question, but a positive answer to this question is a possibility. In a recent Duke Law Review article, Professor Lanctot of Villanova argues that "the bar has consistently viewed the furnishing of particularized legal advice as creating an attorney-client relationship and has frowned on such advice giving in non-traditional contexts. The bar's cool response to forms of legal assistance spurred by new technology sounds a cautionary note for lawyers on the Internet." Catherine J. Lanctot, "Attorney-Client Relationships in Cyberspace; The Peril and the Promise," 49 Duke L.J. 147 (1999), www.law.duke.edu/journals/dlj/articles/dlj49p147.htm .
Some lawyers anxious to use the Internet to solicit business and may make mistakes that more careful thought could have helped them avoid. The post seeking legal advice is one potential snare. Some lawyers would rush in and answer the post without considering a series of important questions related to such activity. Are you even licensed to practice law in the appropriate jurisdiction? The people and their problems may be in a remote location. Does the poster already have a lawyer? Is the poster seeking a second opinion, or trying to check up on his existing lawyers advice? Is the poster taking a poll, getting the advice of a number of lawyers, and then deciding what advice he or she will take? Do you have a conflict of interest? People tell me that this is very unlikely, but it has happened that a lawyer has answered a question online posed by an adversary. Is your ethical duty of competence satisfied if you give advice based upon a written post? Traditionally, we interview clients because we do not assume they will volunteer all the relevant facts. Should we make a different assumption online? Even if you can answer the post, should the answer be posted? Or would it be better to use a more confidential form of communication? The lawyer might like the idea of posting his answer, in order to show off his great expertise to other potential clients. On some newsgroups the ratio of mere readers to actual posters is more than a thousand to one. But is that in the client's best interests, especially if your conclusion is that the client did something inappropriate? The attorney-client relationship is confidential, and we do not generally offer our advice simultaneously to the client and the whole world. I know of no lawyer who has taken a client into the waiting room to pronounce his advice so all those waiting would be impressed with his expertise. There are other dangers as well. If the answer to the client's question is the exception to the general rule, does the lawyer have a duty to clarify that, knowing that thousands will read the answer and may wrongly apply it to other facts where the applicable law is different? Lawyers can avoid some of these problems by e-mailing responses to posted questions, rather than posting their answers, but by doing that hey lose the public relations value of a posted response. If the lawyer tries to address these concerns and be very careful in his or her response, will the client turn to someone who "is not such a lawyer about everything" to get their advice? Is that such a bad result? Clearly, there are more questions than answers concerning how lawyers should conduct themselves online. The unsettled nature of regulation in this area calls for caution, but that does not mean that lawyers should stay offline until these issues are resolved. Know the issues, check with regulatory authorities when you are in doubt, and develop a good disclaimer for your Web site. There are plenty to choose from. The number of disclaimers on the Internet is growing as fast as the Internet itself. That is one sure sign that the lawyers have arrived.
The Best Ethics Sites on the Web
http://www.legalethics.com Premier legal ethics site
http://www.law.cornell.edu/ethics/
Cornell's excellent legal ethics site
http://www.findlaw.com/01topics/14ethics/index.html
Ethics resources from Findlaw
http://www.llrx.com/courtrules/ Court Rules from llrx.com
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