Venturing out onto the World Wide Web: Ethics Implications for
Lawyers
The Internet offers lawyers a powerful practice tool from
research capabilities, to networking, to marketing and beyond
with equally powerful ethics implications, all of which are covered by
the Wisconsin Supreme Court Rules of Professional Conduct for
Lawyers.
By
State Bar Professional Ethics Committee *
* Dean R. Deitrich, Marquette 1977, of the Wausau firm of Ruder,
Ware & Micheler, L.L.S.C. authored this article in consultation with
the State Bar Standing Committee on Professional Ethics
Professional Ethics
It is a safe assumption that the Internet will
have an ever-increasing impact on the practice of law and that the
ethics implications for lawyers will be significant.
Lawyers are using the Internet for a variety of purposes, and an
understanding of them is essential to comprehending the ethical problems
that arise. There are at least four broad categories of use:
1) to access legal research sources such as Lexis®,
Westlaw®, and databases maintained by state and federal
governmental agencies and others;
2) to participate in bulletin boards, news groups, discussion groups,
chat groups, and so on (for example, Counsel Connect), to keep up with
developments in subject areas, post and respond to questions posted by
lawyers and nonlawyers, and solicit representation, directly or
indirectly;
3) to communicate via email with clients, potential clients, other
lawyers (both inside and outside of the firm), and courts; and to
receive and forward documents from and to clients or associates; and
4) to publish Web sites (home pages) for individual lawyers or law
firms, which might be compared to yellow pages ads. A typical Web site
might include a description of the firm, biographies of lawyers in the
firm, descriptions of the firm's practice areas, lists of representative
clients, and direct email links to individual lawyers in the firm.
Broadly speaking, the ethics implications of the Internet for lawyers
fall into the following general categories:
- Advertising and solicitation
- Unauthorized practice of law
- Confidentiality
- Competence
- Conflicts
- Contact with represented parties.
For the most part, the ethics rules apply to lawyers using the
Internet just as they apply to lawyers in other settings. The standards
of conduct in the Wisconsin Supreme Court Rules 1 can be broadly interpreted to cover most of the
situations that now arise when lawyers use the Internet; however,
lawyers often do not think of the ethics implications when using this
new technology.
This is an emerging area, and national and state bars are only
starting to deal with the ethics problems that the Internet presents to
lawyers. Generally, ethics committees that are dealing with these issues
are applying existing rules and principles to the new medium, rather
than developing new rules for the new medium.
Advertising or solicitation
Lawyers are realizing that the Internet can be a useful tool for
attracting and retaining clients. Lawyers and law firms of all sizes are
using the Internet also as a public relations tool. While these are
positive uses of this new technology, lawyers must be aware that with
the new technology comes additional obligations to ensure compliance
with advertising and solicitation rules.
There is a general consensus that lawyers' public relations
activities on the Internet are a form of commercial speech that are
covered by ethical rules on advertising and solicitation. Questions
remain about whether attorneys' communications on the Internet are
governed by rules covering advertising, or by the rules covering
solicitation. For example, are email messages analogous to sending a
letter, or making a telephone call? Are email messages subject to
regulation as print or broadcast media?
An email message sent to a group of Internet users probably would be
considered similar to a letter sent to potential clients and would be
governed by Supreme
Court Rules 20:7.1 and 20:7.2. The communication must be truthful
and must not contain information that is designed to deceive or create
false promises for the potential user of the lawyer's services. In
addition, if the email is sent to an individual who is known to be in
need of legal services of the type offered by the attorney, the lawyer
should: 1) identify within the text of the message that the email is
advertising; 2) retain a copy of the email message; and 3) file a copy
with the Board of Attorneys Professional Responsibility (BAPR).
While BAPR has yet to seek enforcement of these rules for electronic
transmissions, it is likely that email messages directed to individuals
who are likely to need legal services will be subject to the same
scrutiny as direct mail advertising. It is unlikely that an email
message will be considered direct telephone contact with a prospective
client, which is prohibited by SCR
20:7.3, since the prospective client is allowed to read the email
message without undo influence from the lawyer and make an independent
decision as to whether to contact the lawyer for further discussions
about legal services.
Particular questions also arise with an attorney's personal Web page.
The Professional Ethics Committee believes information placed on a Web
page would constitute both communications concerning a lawyer's services
and advertising. Thus, the information must not be false or misleading
as required under SCR
20:7.1. Because the information about a lawyer's services placed on
a Web page is not sent directly to an individual who the lawyer knows is
in need of legal services, the information would not qualify as a
telephone call or other direct contact with an individual known to be in
need of legal services. Therefore, the lawyer would not be required to
submit a copy of the Web page information to BAPR. The attorney also
would not be considered making direct contact with a client known to be
in need of legal services if the attorney merely advertises his or her
services through a Web page.
There are, however, potential significant problems with a lawyer's
use of a Web page to publish self-laudatory statements or statements
that create unjustified expectations (that is, are false and
misleading). The standards for assessing whether statements by a lawyer
are false or misleading will apply to statements made on a Web page just
as statements made in a newspaper advertisement or yellow pages
advertisement. Commercial freedom of speech issues often arise in this
area and allow certain leeway to lawyers when advertising their
services. The false or misleading standard still will be enforced but
largely will depend upon the type and extent of statements used by the
lawyer.
Lawyers also should be cautious when participating in discussion
groups with potential clients and nonlawyers. For example, lawyers
should avoid stating on their Web page or in email discussion that they
"specialize" in a particular area of law unless the lawyer meets the
requirements of SCR
20:7.4. Lawyers should not use the word "specialize" unless they
have been certified by those few organizations that have been approved
by the American Bar Association as authorized associations that may
certify a specialist in a particular area of law. Use of such words as
"concentrates practice in" or "limits practice to" are acceptable
descriptions for the lawyer to incorporate in a Web page provided the
information is not false or misleading. References in resumes or other
informational items on the Web page that suggest the lawyer's membership
in an organization will result in greater success in the representation
of a client should be avoided under all circumstances because of the
potential misleading nature of that information.
The use of a Web page by lawyers as the newest tool for advertising
and client contact has excited many professionals and opened the door to
wide exposure for many lawyers. These same lawyers must recognize that
the use of Web pages and the Internet for client contact and new
business is subject to the same restrictions that exist for all other
forms of advertising and client solicitation. If the lawyer uses the
same precautions that he or she uses when advertising for services in
the printed media or by direct mail solicitation, the lawyer should not
run afoul of the Supreme Court Rules. Particular caution should,
however, be given to the information placed on a lawyer's Web page so
that the attorney-client relationship does not result in the attorney
being precluded from representing existing or new clients because of
some contact or communication made over the Internet.
Unauthorized practice of law
The Internet is global in nature and lawyers must consider the
potential problems involved in giving legal advice to persons and
organizations in states in which the lawyer is not licensed to practice.
States have a legitimate interest and can take action when lawyers not
licensed in the state give legal advice to people in that state.
Lawyers should consider using disclaimers on the Web page to address
this area of potential problem. The purpose of the disclaimer is to
ensure that an attorney-client relationship does not arise if an
individual contacts a law firm's Web page or even asks questions of an
attorney through the Web page. If an attorney responds to a general
question posed by a visitor to the Web page, the attorney should
indicate that the response is only designed to provide general
information about the law and does not create an attorney-client
relationship.
It is even suggested that lawyers should indicate they will not
accept clients generated by a Web page contact made by an individual
located in a state where the lawyers are not licensed to practice. This
probably is the most confusing area of regulating lawyer ethics on the
Internet since the legal profession, like others, is just beginning to
react to the new world opened by the Internet.
A recent California Supreme Court decision held that a lawyer who
does legal work "in" California must be licensed by the California State
Bar based upon a California statute that states no person should
practice law in California unless the person is an active member of the
State Bar. In this case, a New York law firm represented a California
company and lawyers from the law firm made multiple trips to California
and performed legal services for the California company while in
California. The supreme court held that the law firm was committing the
unauthorized practice of law while performing legal services in
California and could not collect any portion of its fees for services
performed there.
The court stated: "Our definition of (practice of law) does not
necessarily depend on or require the unlicensed lawyer's physical
presence in the state. Physical presence here is one factor we may
consider in determining whether the unlicensed lawyer has violated
Section 6125 [the California statute], but it is by no means exclusive."
The supreme court did hold that a person is not deemed to be practicing
in California automatically simply because the lawyer "virtually" enters
the state by telephone, fax, email, or satellite but held that such a
determination must be made on its individual facts. Obviously, the
question of unauthorized practice of law through the use of technology
is unfolding around the country.
Confidentiality
Lawyers should consider the potential problems related to
communicating over the Internet with clients or with other lawyers about
ongoing cases. There are, for example, possibilities for inadvertent
disclosures that can reveal confidential information and strategy. There
also is potential for an invasion of the lawyer's system to obtain
confidential information.
Supreme
Court Rule 20:1.6 requires lawyers to ensure confidentiality of
client information, and it is applied very strictly to lawyers in
Wisconsin. Lawyers have a duty to take reasonable precautions to ensure
the confidentiality of client information. Clients should be advised of
the potential risks of communicating by email (for example, interception
by third parties). Lawyers should take steps to ensure that information
is secure within the firm (for example, maintaining
the security of back-up tapes). Whether to use encryption should be a
business decision based upon the amount of security desired. Generally,
specific client email messages that contain strategy, recommendations,
or other similar items related to the representation should be encrypted
to ensure proper confidentiality. Correspondence or messages of a
general nature may not have to be encrypted.
Some authors have concluded that using email for communicating with
clients is no different than communicating by mail or cellular phone
since interception of the client communication is possible. The
potential for interception is, in most instances, minimal because of the
time and investment that would be necessary to intercept the email
message.
Most state bar associations have concluded that using email to
communicate with clients does not compromise the attorney-client
privilege or constitute a breach of client confidentiality
requirements.2The State Bar of Wisconsin
Professional Ethics Committee generally endorses these opinions and
concludes that attorneys may communicate with clients through Internet
email without violating SCR
20:1.6.
The Professional Ethics Committee also endorses informal Op. 970230
of the Missouri Legal Ethics Committee, which suggests that "an attorney
that contemplates using email to communicate with a client or a third
party regarding a client's matter, should obtain the consent of the
client prior to communicating in that manner. The client's consent
should be obtained after the attorney is satisfied that the client is
aware of the risks of interception of the message as it travels through
the Internet as well as through any network to which the computer may be
connected."
Participation in discussion groups (chat rooms) should be scrutinized
carefully to ensure that the information the lawyer provides during
discussions will not result in the identification of a client or of the
representation of a client. Lawyers should avoid discussion items that
identify the nature of representation of a client or the nature of
strategy being considered in the representation of a client.
Competence
Lawyers are always subject to the requirement of competency contained
in SCR
20:1.1. The attorney-client relationship can be created by
giving casual advice. Giving legal advice to a stranger over the
Internet is analogous to giving legal advice to a stranger over the
telephone. Lawyers should be very careful about giving legal advice to
individuals over the Internet, whether by participating in discussion
groups or by direct responses to questions through email. An
attorney-client relationship may be created and the attorney can then be
responsible for the advice given.
Conflicts
Conflicts problems can arise when lawyers interact with potential
clients over the Internet without doing the necessary checks for
conflicts of interest. This is particularly problematic when lawyers
interact with strangers over the Internet. Lawyers who give legal advice
or exchange email messages with an individual may be establishing an
attorney-client relationship that is in violation of SCR
20:1.7 because of a preexisting relationship with a current
client. Lawyers may not represent an individual when that representation
is directly adverse to the representation of another client without
written waiver of the conflict by both parties.
The existence of an attorney-client relationship created over the
Internet has not been clarified by local bar ethics opinions. However,
regulatory agencies generally will look at the reasonable expectation of
the individual (not the attorney) when assessing whether an
attorney-client relationship exists.
Lawyers and law firms should ensure that any contact by an individual
through a Web page does not create an attorney-client relationship
unless specifically desired by the attorney. Initially, this may be
addressed by providing a disclaimer on the Web page that any contact by
an individual does not result in an attorney-client relationship unless
directly authorized and agreed to by the individual and the
attorney.
When responding to inquiries from strangers through the Internet or
Web page, attorneys should be careful to indicate that the response is
not intended to establish an attorney-client relationship. The lawyer
also should request that direct telephone contact be made with the
attorney before providing any legal representation or advice to the
individual.
Contact with represented parties
Interacting with strangers over the Internet also can result in
violations of SCR
20:4.2 and SCR
20:4.3. Lawyers may not communicate directly with individuals
who are represented by counsel under SCR
20:4.2. Lawyers also have specific obligations under SCR 20:4.3
to explain their role when communicating with individuals who are not
represented by counsel. Communicating over the Internet with strangers
poses particular problems because the lawyer does not know if the person
receiving an email message is, in fact, represented by counsel or
involved in litigation that requires certain explanations or disclosures
from the attorney.
While issues of this nature appear to be very remote and unlikely,
the potential for problems again highlights the need for lawyers
communicating over the Internet to be very careful about who they are
communicating with. This is especially true when inquiries are of a very
specific nature that may be linked to litigation or legal representation
involving the attorney's clients.
Communicating over the Internet has and will become an
ever-increasing part of a lawyer's practice. Some suggest that this type
of communication is no different than communicating over the telephone.
There is the same expectation of privacy by both the lawyer and the
client when communicating over the Internet; however, the actual
existence of such privacy is not clear. Wisconsin lawyers are cautioned
that the Supreme Court Rules on Professional Conduct are applicable to
communication over the Internet and some extra precautions must be
exercised to avoid potential violations of these rules.
Conclusion
The Rules of Professional Conduct govern the activities of lawyers
using the Internet for business purposes. The Rules are written in the
broadest terms and, as a result, appear to cover most activities
involving the use of the Internet. Lawyers are cautioned to comply with
these Rules whenever transacting legal business using the Internet.
Endnotes
1The standards of attorney conduct
in the Wisconsin
Supreme Court Rules can be found online.
2See Alaska Bar
Association Op. 98-2 (lawyer may ethically communicate with a client on
all topics using electronic mail); Arizona
Advisory Op. 97-04 (lawyer may want to have email encrypted with
a password known only to the lawyer and the client but lawyers still may
communicate with existing clients via email about confidential matters);
South
Carolina Advisory Bar Op. 97-08 (finding a reasonable
expectation of privacy when sending confidential information through
electronic mail; the use of electronic mail will not affect the
confidentiality of client communications under South Carolina Rule of
Professional Conduct 1.6); Vermont Op. 97-5 (a lawyer may communicate
with a client by email, including the Internet, without encryption);
Illinois State Bar Assoc. Op. 93-12 (lawyer does not violate Rule 1.6 by
communicating with a client using electronic mail services, including
the Internet, without encryption).
Wisconsin
Lawyer