Vol. 72, No. 2, February 1999
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.
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