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Cyberspace, Technology And EthicsIMPORTANT NOTICE: This article is provided solely for research and archival purposes. MCLE self-study credit is no longer available. Even if you follow the instructions and submit payment you will not be granted MCLE self-study credit. Please note that low-cost MCLE is provided by the California Lawyers Association, pursuant to Business and Professions Code section 6056. Ethics opinions examine the propriety of marketing your legal skills via chat rooms and unsolicited e-mails By Ellen R. Peck
Cyberspace. The penultimate frontier. Our infinite mission is to explore the marketplace of the world where someone, somewhere can buy legal services 24/7 and to find new marketing opportunities for our practices.” Cary Consumerlaw’s booming voice rose over the cheers and laughter of the lawyer audience in an MCLE program on cyberspace, technology and ethics. Cary, a very successful plaintiff’s consumer law attorney and a creative marketer, had the role of discussing new opportunities in marketing legal services on the Internet. Terry Techno would discuss technology. California Joan was the ethics anchor of the panel. “One of the best opportunities for marketing your services through the Internet in your practice niche is use of chat rooms. Suppose, Cali,” suggested Cary, throwing her a meaningful look, “that Personal Injury Lawyer searches the Internet and discovers a chat room created for victims and families of a recent mass disaster. The chat room’s home page describes its purpose as ‘the provision of emotional support to victims of the recent mass disaster and their families by similarly affected persons.’ P.I. Lawyer monitors the chat room conversation and then introduces herself as a lawyer and offers to answer any questions, with the hope that chat room participants hire her to sue defendants responsible for the mass disaster.” (California Bar (“CalBar”) Formal Op. No. 2004-166.) “Chat rooms present great marketing opportunities because participants communicate electronically in real time via the Internet. Unlike ordinary e-mail or electronic messages posted to a computer bulletin board or listserv, a chat room is designed to allow participants to exchange messages back and forth instantaneously. Plus, unlike ‘instant messaging,’ which typically involves real-time communication between only two people, a chat room typically allows several people or large groups to communicate simultaneously,” Cary said, explaining the advantages of a chat room. (CalBar Fml. Op. No. 2004-166, fn, 1.) “I have not found any case or rule which prohibits P.I. from trolling for clients in Internet chat rooms, so P.I. should have no ethical risk!” Cary crowed confidently. “True, Cary, you won’t find the specific guidance in any rule or case. The guidance for this can only be found in an ethics opinion issued by one of the many state and local bar association ethics committees that labor to serve lawyers in the field of professional responsibility,” Cali said. (CalBar Formal Op. No. 2004-166.) “Isn’t P.I.’s conduct unlawful solicitation?” asked one worried participant. “After all, P.I. is conversing with potential clients personally in the chat room in real time. And most Internet sites are accessed through the telephone.” Cali discussed CalBar Formal Op. No. 2004-166’s conclusion that chat room discussions with potential clients were not solicitations within the meaning of rule 1-400(B) and (C), Rules of Professional Conduct (CRPC). In order to be a “solicitation” under rule 1-400(B), a lawyer’s communication must meet two elements: (1) where a “significant motive” for the communication is “pecuniary gain,” and (2) where either (a) the communication is delivered in person or by telephone or (b) the recipient of the communication is known to be represented by counsel. Element 1 was met, the ethics committee concluded, because P.I. hoped chat room clients would hire her to represent them in mass disaster cases. Element 2(b) was not present, because P.I. could not know whether the chat room clients were represented by other lawyers or not. As to element 2(a), the committee concluded that since chat room communications occur via a computer, they are not “in person.” Moreover, since CRPC 1-400(B) expressly refers to communications “delivered by telephone,” not to communications “delivered over telephone lines,” chat room communications are not prohibited. (CalBar Fml. Op. 2004-166.) Cary smiled triumphantly, asking, “So if trolling for clients in a chat room is not prohibited solicitation, how can it be unethical? Cali retorted, “CRPC 1-400(D)(5) provides that a communication or solicitation shall not be ‘transmitted in any manner which involves intrusion, coercion, duress, compulsion, intimidation, threats, or vexatious or harassing conduct.’ CalBar Fml. Op. 2004-16 opined that P.I.’s conduct was intrusive since victims and family members visited the chat room to seek emotional support, without the expectation of encountering a lawyer hoping to be retained.” She added: “Standard (3), one of 16 standards adopted by the State Bar Board of Governors as ‘communications’ that are presumed violations of the rule, applies to communications ‘delivered to a potential client whom the member knows or should reasonably know 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.’ “Because any victim or family member accessing this chat room is likely seeking emotional support, this implies an emotional state making them incapable of making a reasonable judgment about retaining P.I. Given the chat room’s prominently displayed purpose, P.I.’s communication in the chat room will be a presumed violation of rule 1-400 under standard (3).” Terry Techno added, “Remember also that federal law prohibits making any kind of unsolicited communication — even letters that do not involve the danger of overreaching — to victims of aircraft accidents for 45 days following the accident. (See e.g., 49 U.S.C. §1136.) Someone from the back of the room shouted, “What about unsolicited e-mails? Are they solicitations?” “No,” replied Cali, “this is another answer you can only get from ethics opinions. Cal Bar Fml. Op. No. 2001-155 opined that while e-mail messages may be delivered by telephone lines, an e-mail message to a prospective client is not a prohibited solicitation under CRPC 1-400(B).” “So,” concluded Cary, “if P.I. picked a chat room that did not have as its purpose emotional support or any purpose which implicated opportunities for overreaching, coercion or intrusion, P.I. could ethically chat up potential clients?” “I think he’s on to something!” Terry said as Cali nodded her assent. “Web sites provide additional opportunities for marketing legal services. Visitors to a lawyer’s Web site can be invited to submit legal questions or request legal services from the lawyer at their leisure. Are these type of Web sites regulated by the advertising rules?” Cary asked. “Yes,” answered Terry Techno. “Web sites permitting potential clients to request legal assistance fit within the scope of CRPC 1-400(A) because the content of the Web site is a means of announcing the lawyer’s availability for professional employment; the Web site is directed to the general public; and because CRPC 1-400(A)(3) includes as a ‘communication’ every advertisement ‘regardless of medium.’” (See California State Bar Formal Op. No. 2001-155.) Cali added, “Cary, you’ll be pleased to know that such a Web site is not a ‘solicitation’ under CRPC 1-400(B), even where pecuniary gain is a significant motive in establishing and maintaining the Internet Web site.” (See California State Bar Formal Op. No. 2001-155.) “Don’t forget that CRPC 1-400(F) requires that an attorney retain for two years copies or recordings of any communications by written or electronic media and that these copies or recordings be made available to the State Bar if requested. These requirements apply to each page of every version and revision of the Web site,” Terry interjected. (California State Bar Formal Op. No. 2001-155.) “One of the challenges of Web sites is to select potential new clients without having duties of confidentiality to the Web site visitors. Are there any cases on how to do that ethically?” Cary asked, moving on. “Here again, you need to reference California ethics opinions because there are no California state appellate court published opinions,” Cali answered. “California State Bar Formal Op. No. 2005-168 discussed improper and proper confidentiality disclaimers, so that a lawyer may manage potential and actual conflicts of interest between existing and potential clients.” Terry pointed out that the following disclaimer was found insufficient: “I agree that I am not forming an attorney-client relationship by submitting this question. I also understand that I am not forming a confidential relationship.” (Id.) Terry explained that the opinion found that a Web site visitor could still have a reasonable belief that a lawyer would keep information confidential. The foregoing statements are potentially confusing to lay persons because they may reasonably view it as a variant of the agreement about not entering into an attorney-client relationship with a lawyer rather than an agreement that the lawyer would not keep information confidential. (Id; see also Virginia State Bar Ethics Op. 1794 (June 30, 2004); Barton v. District Court (9th Cir. 2005) 410 F.3d 1104, 1110 — Disclaimer at the bottom of Web site questionnaire did not adequately waive confidentiality.) “What kinds of statements would create no reasonable expectation of confidentiality on a Web site?” Cary asked. Cali answered, “Plain English, such as: ‘I understand and agree that Law Firm will have no duty to keep confidential the information I am now transmitting to’ lawyer or law firm.” (Cal. Bar Fml. Op. No. 2005-168.) Terry explained that a lawyer could also avoid the confidentiality issue entirely by requesting from Web site visitors only that information that would allow the firm to perform a conflicts check. (Id.) “What about some basic technology issues?” shouted a lawyer in the back. “Is it ethical to communicate with my client by electronic means?” Terry answered, “Transmission of attorney and client communications via fax, cell phone or other electronic means is ethical and proper.” (LACBA Fml. Op. 514. See also Evid. Code §952; 18 USCA § 2517(4) — privileged wire/oral transmissions intercepted in accordance with (or in violation of) federal wiretapping statute do not lose their privileged character; Orange County Bar Assn. Form. Op. 97-002; U.S. v. Councilman (1st Cir. 2005) 418 F3d 67, 79-80 — held that a third party’s interception of e-mail while on its way to the recipient violates the Electronic Communications Privacy Act.) Someone in the middle of the room challenged Terry and Cali, shouting, “I believe that the only safe way to send e-mail to a client is if it is encrypted. What do you think?” Cali responded, “Lawyers are not required to encrypt e-mail containing confidential client communications because e-mail poses no greater risk of interception and disclosure than regular mail, phones or faxes.” (Id., ABA Form. Op. 99-413 — unencrypted e-mail sent over the Internet “affords a reasonable expectation of privacy from a technological and legal standpoint”; see also Orange County Bar Assn. Form. Op. 97-002, concluding that encryption is encouraged but not required.) “Some of the advantages of using e-mail impose greater risks not present in traditional forms of communication,” Terry added. “The informality of e-mail can promote content not appropriate for communications which should be more formal. Also, e-mail content is electronic, invisible to the human eye, and can therefore contain hidden content, data or malicious programming. E-mail, because it can be sent simultaneously — inadvertently or intentionally — to thousands of e-mail addresses, poses a higher risk of inadvertent disclosure.” “In the final analysis,” Cary pointed out, “there are some communications that should never be entrusted to e-mails because of the danger of interception and use of the confidential information in situations where the Evidence Code may provide no protection. For example, transmission of trade secrets or extremely sensitive information calls for modes of communication that safeguard the disclosure of the information under any circumstances.” A participant in the front is a member of a local bar association composed of both lawyers and judges with a Listserv. Recently, the lawyer and other members were trading information about appropriate accounting experts that was read by a judge before whom the accounting expert was to testify the following week. “By participating in e-mail Listserv or chat room communications, did I engage in improper ex parte communications if judges in front of whom I or other lawyers may appear also have access to that same information?” he asked. “Another example of a question which can only be answered by an ethics opinion,” Terry said. “LACBA Formal Opinion No. 514 opined that while Listserv communications present a possibility for ex parte communications between lawyers and judicial officers who are involved in a case, inadvertent contact, in that context, is not likely to violate CRPC 5-300(B).” In closing the seminar, Cali advised lawyers researching their ethical duties to not forget how important ethics opinions are to finding real practical answers to their ethical dilemmas. Access cyberspace for ethics opinions at: www.calbar.ca.gov (Click Attorney Resources, Ethics Information, Ethics Opinions on the left hand menu); www.lacba.org (Select “ethics opinions” from the drop down menu); www.sdcba.org (Select “Legal Ethics” from the right hand menu); and www.sfbar.org. • Ellen R. Peck, a former State Bar Court judge, is a sole practitioner from Escondido and a co-author of The Rutter Group California Practice Guide: Professional Responsibility. Certification
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