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Vol. 72, No. 2, February 1999
 Previous Page
Venturing out onto the World Wide Web:
Ethics Implications for Lawyers
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).
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