 Last month, I participated in an ABA program entitled Chaos Dot
Com — A Symposium on the Regu-lation of Technology-Based Client Develop-ment,
sponsored by the ABA Com-mission on Responsibility in Client Development. The program
brought together individuals knowledgeable in technology, marketing and legal ethics, and
included representatives from the ABA Ethics 2000 Commission.
As the Chaos Dot Com title suggests, the current situation is
uncertain for lawyers practicing or holding out over the internet. Internet use presents
numerous practical, ethical and regulatory questions for lawyers, many of which do not
have ready answers.
Here in California, there appears to be little official guidance.
Recently, the State Bar’s Ethics Committee published a draft ethics opinion on
internet advertising by lawyers which is very helpful, but is only a start. There are an
array of internet issues on which California lawyers could use practical guidance.
Below I identify a number of key internet issues and provide a
professional responsibility analysis using California authority. This space does not
permit extensive discussion, but I will try to hit the high points.
Advertising
In my 1996 California Bar Journal article, Internet Use Raises
Ethical Questions, I opined that California Rule of Professional Conduct 1-400 and
Business & Professions Code §§6157-6158 apply to lawyer web sites. A recent State Bar draft ethics opinion, Interim
Opinion No. 96-0014, reaches the same conclusion.
When a lawyer’s web site provides information to the public
concerning a lawyer’s availability for professional employment, that lawyer is making
a “communication” for purposes of CRPC 1-400(A). The communication is regulated
under CRPC 1-400 to the same extent as any other communication made by the lawyer in
print, audio or visual format. The communication must be truthful and not misleading (CRPC
1-400(D)) and must comply with all CRPC 1-400 Standards (CRPC 1-400(E)).
Lawyer web sites are also regulated under Business & Professions
Code §§6157-6158, which apply to “electronic medium . . . computer networks”
(Business & Professions Code §6157(d)). These code sections, which prohibit false,
deceptive or misleading advertising, contain additional prohibitions and requirements not
found in CRPC 1-400.
California lawyers should review both authorities when developing and
maintaining a web site. They should investigate whether any special advertising
requirements apply to their particular practice area. In addition to disciplinary action,
lawyers can be exposed to civil damages for deceptive advertising pursuant to Bus. &
Prof. Code §§17200 and 17500.
A current requirement in CRPC 1-400(F) appears problematic. This
mandates a lawyer to “retain for two years a true and correct copy or recording of
any communication made by written or electronic media.” In Interim Opinion No. 96-0014, the Ethics
Committee concludes that this requirement applies “to each and every page of every
version and revision of the web site.” However,
at the Chaos Dot Com program, there appeared to be unanimous agreement among the
technology experts and large web site operators present that the two-year rule was not
feasible when applied to web sites.
Another advertising issue is the “metatag,” the hidden
message that exists at the top of an HTML page that is used to attract internet search
engines (and potential viewers) to the web site. Even though a metatag is not “seen”
by the public, does a lawyer violate California advertising standards if that lawyer’s
metatag is misleading? Interim Opinion No.
96-0014 does not address this issue, but I believe where a metatag is intended and used to
attract potential clients by untruthful or misleading means, a CRPC 1-400 violation
occurs.
Multijurisdictional advertising issues also exist. A California
lawyer, through his or her web site, can be subject to the jurisdiction and regulation of
other states. Those states can have lawyer advertising standards that are more restrictive
than California. A California lawyer’s web site presence or activity in another state
may also violate that state’s unauthorized practice of law statutes. These outside
standards, like California’s, do not remain static but continue to evolve, which
creates additional uncertainties for Califor-nia lawyers. These issues are discussed below
in Multijurisdictional Practice, and Unauthorized Practice of Law.
Additional advertising issues may be anticipated in the future. For
example, Interim Opinion No. 96-0014 concludes that a web site is not a “solicitation”
for purposes of CRPC 1-400(B), but the web site addressed in that opinion is relatively
primitive (it does not include live video interactivity, a bulletin board, links to other
law-related web sites, or news-group functions). As technology evolves, and live video
interactivity develops into holographic virtual presence, the solicitation issue will
heighten.
Attorney-client relationship
The key issue here is inadvertent formation of attorney-client
relationships. The issue presents itself in “real time” chat rooms and threaded
conversations where lawyers may discuss legal problems with other participants. The issue
also manifests in attorney-client “match” companies, which attempt to match
potential clients with participating attorneys.
When providing a response to a legal question posed by another chat
room participant, a lawyer may inadvertently create an attorney-client relationship with
that participant. The non-lawyer may believe that the lawyer has provided legal advice and
formed an attorney-client relationship with the non-lawyer. The non-lawyer bears the
burden to prove the existence of the attorney-client relationship, but can make a prima
facie case by showing that confidences were given to, or advice was received from, the
lawyer. (See U.S. v. Rowe (9th Cir. 1996) 96 F.3d 1294; People v. Thoi (1989) 213
Cal.App.3d 689, Miller v. Metzinger (1979) 91 Cal.App.3d 31; Ferrari v. LaSalla (1960) 186
Cal.App.2d 263.)
Inadvertent attorney-client formation issues can also arise for
lawyers who gain clients through attorney-client “match” companies. Here, much
depends on how the company operates its service. I advise participating lawyers that they
should never provide a specific response to any legal question posed by a prospective
“matched” client, until a formal attorney-client relationship has been formed.
Competence
At present, I am not aware of any California rule, statute or case
that mandates computer/internet mastery by lawyers. However,
I can envision situations where technological competence could come into play. For
example, if a lawyer recklessly or repeatedly loses a client’s internet files, or
transmits those files to the wrong recipient, because the lawyer does not know how to use
the technology, I could see an argument for violation of CRPC 3-110(A).
Technical competence issues will heighten as computers and the
internet become more interwoven into legal practice. Soon, the ability to conduct
competent legal research and to communicate effectively with clients and the courts may
become dependent on possessing adequate computer/internet skills.
Communications
Here, the ethical issue discussed most often regards maintaining
confidentiality of communications, which I address below under Confidences and Secrets.
Another less-considered issue is that lawyers’ internet messages
are often dashed off quickly and written poorly. Lawyers should be aware that internet
messages, like other written communications, can be held up for consideration many years
later.
Confidences and secrets
I am not aware of any California rule, statute or case that requires
lawyers to encrypt or take other specific precautions to insure the confidentiality of
internet communications. Recent ABA Ethics Opinion No. 99-413 concludes that lawyers
generally may transmit confidential information by unencrypted e-mail without specific
client consent, but should consult with clients and follow their instructions on the
method of transmitting highly sensitive information.
In California, a lawyer has a duty under Business & Professions
Code §6068(e) to “maintain inviolate the confidence, and at every peril to himself
or herself to preserve the secrets, of his or her client.” A lawyer must protect confidential client
information regardless of the communication medium used to transmit the information. As
the ABA opinion suggests, lawyers should consider the sensitive nature of a client’s
confidential information, and where appropriate consult with clients to determine a
preferred transmission mode.
Conflicts of interest
Conflict of interest issues can arise or become exacerbated for
lawyers as result of their chat room use, affiliation with on-line legal service
providers, or provision of ancillary services over the internet. When forming
attorney-client relationships and providing professional services to clients, over the
internet or otherwise, California lawyers are required to follow the California rules,
including CRPC 3-300 and CRPC 3-310 regarding conflicts of interest. Lawyers should
consider how these rules are implicated when communicating on-line or when considering
affiliation with an on-line legal service provider.
Fees and costs
Computers and the internet are affecting the way lawyers value and
bill their services. Many legal services, from research to drafting to document
production, can be accomplished more efficiently with computers. One result is the onset
of value billing, which does not reflect actual time spent by the lawyer, but rather the
value of the legal service provided to the client.
Regardless of billing method, CRPC 4-200 prohibits a lawyer from
entering into an agreement for, charging or collecting an unconscionable fee. Lawyers
should consider whether their fees are appropriate under the 11 conscionability factors
set forth in CRPC 4-200(B). The point here is that advancing technology can and will
affect the difficulty, cost and value of particular legal services.
Files
Many lawyers enjoy a false sense of security regarding the permanence
of information stored in their computers. This is a mistake. Although I am aware of no
California authority that so mandates, I recommend that lawyers backup their computers, to
protect against catastrophic loss of client information in the event of a computer crash.
Forms of practice
The internet has spawned many web sites providing a wide variety of
legal information and legal services on the internet. Some of these web sites are owned
and operated by lawyers, others by
non-lawyers.
Lawyers who affiliate with a web site that provides legal information
or legal services over the internet should review the web site’s operations to insure
that the site, in its advertising or operation, does not cause the lawyer to run afoul of
any professional responsibility standards. A lawyer should carefully examine any
non-lawyer-owned or -operated web site that provides legal services to insure that the
lawyer will not aid or abet the unauthorized practice of law (CRPC 1-300), improperly
share legal fees with a non-lawyer (CRPC 1-320) or lose professional independence of
judgment (CRPC 1-600). The lawyer should insure that affiliation will not cause the lawyer
to violate advertising rules (CRPC 1-400, Business & Professions Code §§6157, 6158),
conflict of interest rules (CRPC 3-300 and 3-310) or client confidentiality standards
(Business & Professions Code §6068(e)).
Multidisciplinary practice
The internet has created interest in “one stop shops” that
provide both legal and non-legal services to consumers. Recently, the ABA
Multidisciplinary Practice Commission recommended that lawyers be permitted to form
multidisciplinary practices, or “MDPs,” to provide mixed legal and non-legal
services to consumers. In such MDPs, lawyers would be permitted to enter into partnership
and share legal fees with non-lawyers.
In California, a lawyer must adhere to the professional standards of
an attorney in providing mixed professional services to consumers. (See Sodikoff v. State
Bar (1975) 14 Cal.3d 422, 429; Libarian v. State Bar (1945) 21 Cal.2d 862,865.) To obtain a more complete analysis of duties
relating to the provision of ancillary services, lawyers should review State Bar Ethics
Opinion Nos. 1995-141 and 1999-154. At present, California lawyers may not form law
partnerships or share legal fees with non-lawyers. (See CRPC 1-310 and 1-320.)
Multijurisdictional practice
A California lawyer, through his or her web site, can be subject to
the jurisdiction and regulation of another state. This can raise conflict of law issues
for the lawyer regarding the lawyer’s professional responsibilities.
Under CRPC 1-100(D)(1), a California lawyer must follow the
California rules while practicing in a another state, except to the extent that that state’s
rules specifically require the lawyer to follow rules of professional conduct different
from the California rules. In practice, this means that the California lawyer must follow
the stricter rule, whether it be California’s or the foreign state’s, when
practicing in the foreign state.
Complicating matters, the determination of whether a lawyer is “practicing”
in a foreign state depends on that state’s particular laws. As a result, lawyers
often place disclaimers on their web sites noticing viewers that the web site is not
intended to solicit clients and/or the lawyer will not accept clients from specified
states. By this approach, lawyers attempt to avoid subjecting themselves to the
jurisdiction, regulation and enforcement of particular foreign states. At this point, it
is not clear how effective such disclaimers are in avoiding exposure.
The internet is creating ever-greater pressure on the states and
courts to drop state-based jurisdictional boundaries and to develop uniform ethical
standards. How this issue plays out is anyone’s guess, but it is clearly a major
issue facing legal policymakers today.
Unauthorized practice of law
This issue is addressed under Advertising, Forms of Practice, and
Multijurisdictional Practice above. One important additional point — lawyers should
make sure that their web sites clearly identify states where they are licensed to practice
law, as well as their practice limitations, to help avoid exposure to allegations of
unauthorized practice of law.
Conclusion
It is clear that lawyers need multidimensional knowledge to create
and operate their web sites effectively and ethically. Before starting a web site, lawyers
should consider carefully the California rules and the rules of other states in which
their web site appears. Following such investigation, lawyers should consider providing
disclaimers regarding solicitation, licensure and provision of legal services where
appropriate. Following start-up, lawyers should continue to make sure that their web site
information is accurate and current, and that their web site comports with evolving
standards.
The internet offers many opportunities for lawyers and the legal
profession, but it also presents many challenges. How the profession responds to those
challenges will define how law is practiced in the future.
 David M.M. Bell, now in
private practice, formerly was State Bar director of professional competence, overseeing
rule development and the Ethics Hotline. He can be reached at dmbell@dnai.com.
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