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 Love
it or hate it, the information technology revolution has become an
integral part of the 21st century law office. As a result, we must all
consider what happens when the information superhighway intersects
with our duties of competent representation, undivided loyalty and
confidentiality. In this article, we will explore the impact of the
internet - defined by the Illinois Bar Association in opinion no.
96-10 as a supernetwork of computers that links together individual
computer networks located at academic, commercial, government and
military sites worldwide - on those duties.
The internet, competence and the duty of care
The standard of care governing lawyers has been
defined as the duty: (1) to have and to use that degree of care,
learning and skill ordinarily possessed by reputable attorneys
practicing in a comparable locality under similar circumstances; and
(2) to use reasonable diligence and best judgment in the exercise of
skill and in the application of learning. (BAJI 6.37.)
In further defining the scope of an attorney's
standard of care, the California Supreme Court has weighed in with
several critical observations. First, the quality of a lawyer's
services must be examined by the "indicia of the law which were
readily available" to the attorney at the time the legal services
were performed. Second, attorneys are expected to discover rules of
law, that although not commonly known, may be found by standard
research. Third, attorneys have an obligation to undertake reasonable
research in an effort to ascertain relevant legal principles and to
make informed decisions, even with respect to unsettled areas of the
law. (Smith v. Lewis (1975) 13 Cal.3d 349.)
In attempting to apply these criteria in the
context of the internet's impact on the practice of law, we need to
keep in mind that the determination of whether an attorney has
undertaken reasonable research is generally made by a jury based upon
the testimony of attorneys acting as expert witnesses. (BAJI 6.37.4.)
At two CLE seminars on the role of technology in
the legal profession, nearly 90 percent of the attorneys indicated
that they use the internet to conduct legal research. With those
numbers in mind, imagine a situation where there is no case law within
California on a given issue, but there is compelling law from other
jurisdictions that favors the client's position. Would a malpractice
lawyer have a difficult time finding an expert to testify that it was
below the standard of care to fail to find out-of-state authorities
readily available on the internet and present them to the court? Most
probably not.
Legal research is not the only arena for internet
use by lawyers. The Seventh Circuit has examined the role of the
internet in the context of evaluating whether a plaintiff had been on
sufficient notice of facts to start the statute of limitations running
on a fraud claim. (Whirlpool Fin. Corp. v. GN Holdings, Inc. (7th Cir.
1995) 67 F.3d 605.) Noting the wide availability of governmental and
business information in the public domain, the court concluded that
the plaintiff was presumed to have information readily available on
the internet.
The plaintiff was therefore imputed with
constructive knowledge of that information dating back to its earliest
concerns about the fraud claim, resulting in a finding that its claim
was time barred. Needless to say, if a client can be held to
constructive knowledge of information available on the internet, it is
not difficult to imagine an expert witness holding counsel to similar
or even higher standards of care.
Many lawyers overlook the fact that a failure to
provide competent representation can lead to discipline by the State
Bar as well as malpractice claims. Rule 3-110(A) of the California
Rules of Professional Conduct states that a lawyer shall not
"intentionally, recklessly, or repeatedly fail to perform legal
services with competence." Rule 3-310(B) then defines competence as
applying the (1) diligence, (2) learning and skill, and (3) mental,
physical and emotional ability reasonably necessary for the
performance of legal services provided. Thus, it is important for all
lawyers to consider the nexus between the internet and attorney
competence to protect themselves not only from legal malpractice
claims, but from potential State Bar discipline as well.
While failing to use the internet for legal
research and factual investigation can create risks for lawyers, use
of the internet can create its own separate set of risks. One
significant area of concern arising from lawyers' use of the
internet involves the potential for inadvertently establishing
attorney-client relationships with "cyber clients."
Under California law, the fiduciary relationship
between an attorney and a client "extends to preliminary
consultations by a prospective client with a view to retention of the
lawyer, although actual employment does not result." (People ex rel
Department of Corporations v. Speedee Oil Change Systems, Inc., (1999)
20 Cal. 4th 1135.) Moreover, an attorney is deemed to represent a
client (at least for conflict of interest purposes) when she
"knowingly obtains material confidential information from the client
and renders legal advice or services as a result." Id. at p. 1148.
Most lawyers have heard of colleagues being sued
for giving legal advice at cocktail parties. One case that comes to
mind is the attorney who casually advised a "cocktail party
client" that she had one year to bring her personal injury action
from an accident. Based on this conversation, the "client" waited
ten months to hire a personal injury lawyer. Thereafter, upon learning
her claim against the public entity responsible for maintaining the
dangerous intersection where the accident occurred was time barred,
she sued the cocktail party lawyer for malpractice.
In the era of the internet, the risks presented
have moved from the real chat rooms of the cocktail party to the
virtual chat rooms of the internet. Thus, lawyers must exercise great
caution in: (1) conversing with prospective clients in chat rooms; (2)
making postings to newsgroups answering questions seeking legal
advice; and (3) inviting and responding to inquiries made over law
firm web sites.
Because of the serious ramifications that can
flow from the inadvertent establishment of attorney-client
relationships, lawyers are best served by never giving casual legal
advice to anyone - at a cocktail party, over the internet, in the
gym or anywhere else. In addition, lawyers should never be rushed into
giving advice to cyber clients they do not know, about matters where
they do not have the necessary facts, and without running a proper
conflict of interest check. Instead, lawyers should treat prospective
clients met over the internet in the same manner as prospective
clients who call on the telephone or walk in the door: (1) begin by
running a thorough conflict of interest review before taking any
confidential information; (2) evaluate and screen both the client and
the matter before taking on the mantle of duties owed to clients; and
(3) enter into a written fee agreement outlining the scope and nature
of your representation, or send a non-engagement letter. And remember,
while the pace of life on the information highway is high-speed, do
not let prospective clients, from the internet or elsewhere, push you
into providing instantaneous legal advice before you have followed an
appropriate protocol.
The internet and the duty of undivided loyalty
The duty of loyalty stands at the core of a
client's sense of trust and security in his or her lawyer. (Flatt v.
Superior (1995) 9 Cal.4th 275.) Hence, a breach of the duty of loyalty
can result in an array of unpleasant consequences including
disqualification, a malpractice claim, disgorgement or forfeiture of
fees, sanctions and disciplinary action.
The primary risks found at the intersection of
the internet and the duty of loyalty derive from the inadvertent
establishment of attorney-client relationships. Thus, in order to
prevent breaches of the duty of loyalty lawyers should use the same
protocols in responding to internet inquir-ies that are used when
prospective clients approach by more traditional means.
The most common way for lawyers to receive
contacts from cyber clients is through the "contact us" page of a
law firm website. To avoid potential risks, lawyers should seriously
consider adding a disclaimer to their web pages concerning contacts
with the firm. The disclaimer should contain clear warnings that: (1)
the visitor should not impart confidential information through the web
site unless and until the attorney confirms in writing that there are
no conflicts of interest and that the attorney requests additional
information; and (2) no attorney-client relationship will be formed
absent a written retainer agreement that is signed by the lawyer and
the client and that defines the scope of the representation.
The internet and the duty to maintain client
confidences
Standing together with the fiduciary duty of
undivided loyalty is the distinct but related fiduciary obligation to
maintain and preserve client confidences. (People, etc. v. Speedee Oil
Change Systems, Inc., supra.) The duty to maintain the confidentiality
of client communications and information is codified not only in the
Evidence Code provisions pertaining to the attorney-client privilege (§950,
et seq.) but also in Business and Professions Code §6068(e) which
states that it is the duty of an attorney "to maintain inviolate the
confidence, and at every peril to himself or herself, to preserve the
secrets, of his or her client."
The issue of whether confidential client
communications can be transmitted over the internet has been addressed
both by the California legislature and the American Bar Association.
In an amendment to Evidence Code §952, the legislature expressly
decreed that an attorney-client communication is not deemed lacking in
confidentiality solely because it is transmitted by electronic means.
Thus, an attorney who otherwise takes reasonable precautions to
protect the confidentiality of electronic communications with a client
will be deemed to be communicating confidentially.
In formal opinion 99-413, the Standing Committee
on Ethics and Professional Responsibility of the ABA concluded that
e-mail communications, including those sent unencrypted over the
internet, are confidential as they pose no greater risk of
interception or disclosure than other modes of communication commonly
relied upon as having a reasonable expectation of privacy.
However, as noted in the ABA opinion, lawyers
should consider with their clients the particular sensitivity of their
communications and the relative security of e-mail versus other modes
of communication depending upon the circumstances. In fact, these
considerations should be discussed with clients relative to all modes
of communication. For example, a lawyer should consult with a client
about whether the client is in a position to maintain the
confidentiality of faxes sent to the client's workplace, or the
nature of messages that should be left on voicemail or with a
co-worker.
In addition, if you find yourself communicating
with clients via e-mail, do not assume you can maintain a
"paperless" file unless you have a safe method of backing up and
storing all of the information you are sending and receiving over the
internet.
Conclusion
Every lawyer practicing in the 21st century
should evaluate how the information superhighway intersects with their
own law practices, with close attention paid to the duties of due
care, undivided loyalty, and confidentiality. Lawyers who are
"technologically challenged" and resist the new technology need to
recognize that a failure to use the internet can adversely affect
their ability to provide cost effective or even competent legal
representation.
On the other hand, lawyers who have embraced the
internet must take great care to avoid developing a class of
disgruntled cyber clients, complaining about misunderstandings
concerning the existence or scope of the attorney-client relationship.
While the internet can be a source of risk, it also can be a source of
tremendous benefit to lawyers and their clients. For the benefits to
outweigh the risks, lawyers should incorporate the internet into their
law practices, thoughtfully, ensuring that ethical duties and risk
management tools are carefully considered.
In other words: Go forward into the 21st century;
but do it carefully!
ŠSteven A. Lewis, 2001 and 2002. All rights reserved by Steven A.
Lewis. Lewis, a principal of Lewis & Bacon in Sacramento, has been
advising and representing lawyers for more than 25 years. He is a
frequent speaker and author on legal ethics and risk management and is
also an adjunct professor of law at McGeorge School of Law.
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