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1. Attorneys may be held to have a duty to
discover rules of law that are not commonly known.
2. Failure to represent clients competently may
be a breach of the duty of due care giving rise to malpractice
exposure, but will not subject a lawyer to discipline.
3. Lawyers can safely practice law without
relying on the internet for legal research.
4. Lawyers can safely practice law without using
the internet for factual investigation relevant to clients' legal
matters.
5. The duty of due care not only requires an
attorney to have and to use the degree of learning and skill possessed
by reputable attorneys in the community, but also requires the use of
"best judgment" in the application of learning.
6. A lawyer does not have an attorney-client
relationship with a client until the lawyer and client enter into an
oral or written agreement.
7. Giving legal advice over the internet to a
prospective "client" creates a risk the lawyer will breach the
duty of care, not the duty of loyalty.
8. A lawyer should conduct a conflict of interest
check before providing any legal advice to a prospective client who
has contacted a lawyer through the lawyer's web site.
9. The duty to protect confidential
attorney-client communications is codified in the Business and
Professions Code, not in the Evidence Code.
10. In order to maintain confidentiality of
attorney-client communications, e-mail should necessarily be
encrypted.
11. Transmission of confidential information
electronically is much riskier than other more traditional means of
transmitting information, such as the postal service.
12. Lawyers should obtain their clients'
consent before transmitting confidential information via e- mail.
13. A breach of the duty of loyalty can give rise
to a forfeiture of attorney's fees.
14. The internet is a supernetwork of computers
that links together individual computer networks located at various
sites, including academic and governmental sites, worldwide.
15. Law firm web sites create increased risks
that lawyers will be held to have established attorney-client
relationships with prospective clients with whom they have no fee
contracts.
16. The duty of due care owed to "cyber"
clients is different than the duty of due care owed to clients the
attorney has met face to face.
17. To be competent, an attorney must not only be
mentally and physically able to represent a client, but also must be
emotionally able to do so.
18. An attorney does not need to advise a client
that the client can be held to have a duty to discover facts relevant
to a legal matter that are readily available on the internet.
19. There is case law in California expressly
holding that the duty of care requires attorneys to conduct
computerized research.
20.
Because there is no case law on point, an expert witness could not
testify that the standard of care requires a lawyer to conduct
internet research in a given situation. |
