Focus on Professional Responsibility
June, 1999

Scary Things: Or How to Avoid Breaching Ethics on the Internet
By: Barry L. Brickner

Being active in the American Bar Association Law Practice Management Section has some advantages. I go to meetings all around the country and meet with leaders in the field of Law Practice Management. In the spring of 1998 the section met in Santa Barbara, California.

The section put on two programs dealing with the Internet. Greg Siskind talked about marketing on the Internet. After he talked about some of the amazing opportunities that exist by using the Internet in his law practice, the dark side of the Internet was revealed in the second program. Executive Risk Management Associates put on its program entitled "Law Firms and the Internet: Confidentiality, Advertising & Document Retention." There are many interesting things that you can do on the Internet and there are many scary things too. How about practicing law without a license, illegal advertising and the ever-popular breach of confidentiality, not to mention conflict of interests? All of the fun things that make your malpractice premiums go up, up, up.

How does one practice law without a license on the Internet? We are lawyers aren't we? Well, we are where we live, but not necessarily where the person hitting your website lives. Someone might see your lovely website and while visiting drop a little question to your listed E-mail address. Ah, but where do they come from? Out of state, maybe? A place that you do not have a license to practice law, maybe? A place that you are not a licensed lawyer, definitely. Even if you are just a good Samaritan helping out a weary electronic traveler, you are practicing law. Going one step further, what if the laws in your state differ from the laws in their state. Oops! There is that malpractice word again.

All right, so you put a disclosure on your site that tells one and all that you are licensed in only certain states. Lo and behold the person that is writing to you is from your state. Got off that hook I'd say. Well, maybe not. What if that person is someone that your firm is suing currently or sued in the past? What if no suit was instituted yet but that person is the other side of your client's claim? Oops! You have a conflict problem and you might not even know that you do. You can not always tell whom you are communicating with just by an e-mail address. Before answering any questions make sure that you get the identity of the person visiting your website.

The easy solution is not to practice law on the Internet or make sure that the potential client comes to your office before you start giving out legal advice. As I remember from my law school days, the definition of a client is someone who comes to you for legal advice, whether or not they have money in hand. If you practice law on the Internet, there is no hand with money in it, but you may still establish a lawyer-client relationship. I know you can accept charge cards and get paid through the Internet, but you still run the risk of practicing law without a license in a different state and creating a potential conflict of interest. I would rather practice ethically than be rich and have my license revoked.

Both the ABA and the state bars are working on the question of confidentiality. There is a recommendation to the ABA that it urge the state, local and territorial courts to accord a lawyer-client electronic mail communication, whether by the Internet or any other means, the same expectation of privacy and confidentiality as lawyer-client communications by telephone calls, United States mail and other means of communication traditionally deemed private and confidential. Currently, some states have adopted the recommendation of the ABA and others have taken the opposite position that failing to encrypt could lose the confidential status of an Internet communication with a client. The majority of states follow a reasonable approach that most client communications do not require encryption, but highly confidential material should be encrypted.

Advertising on the Internet opens an entirely different can of worms. Most state bars treat Internet advertising the same way they treat print advertising. However, there is no consistency amongst the state bars. The State Bar of Michigan promulgated RI-276 to cover lawyer advertising on the Internet and electronic solicitation. The syllabus reads:

RI-276

A lawyer may post information about available legal services on the Internet which may be accessed by users of the technology as long as ethics rules governing the content of the posted information are observed.

A lawyer may solicit legal business through an electronic mail communication directed to a specific addressee or group of addressees by following the same ethics rules applicable to general and direct mail solicitation.

A lawyer may not solicit legal business during an interactive electronic communication unless ethics rules governing in-person solicitation are followed.

The text of RI-276 is illuminating. The Ethics Committee was asked whether lawyer advertising on the Internet, through e-mail, or home pages, constitutes "direct mail" contact which is permitted under MRPC 7.3 or whether such contact constitutes impermissible contact which is akin to the in-person and telephone contact prohibited by MRPC 7.3.

MRPC 7.3(a) sets forth those attorney contacts that are permissible and impermissible under the rules. MRPC 7.3(a) states:

"(a) A lawyer shall not solicit professional employment from a prospective client with whom the lawyer has no family or prior professional relationship when a significant motive for the lawyers doing so is the lawyers pecuniary gain. The term solicit includes contact in person, by telephone or telegraph, by letter, or other writing, or by other communication directed to a specific recipient, but does not include letters addressed or advertising circulars distributed generally to persons not known to need legal services of the kind provided by the lawyer in a particular matter, but who are so situated that they might in general find such services useful, nor does the term solicit include sending truthful and nondeceptive letters to potential clients known to face particular legal problems as elucidated in Shapero v. Kentucky Bar Assn, 486 US 466; 108 S Ct 1916; 100 L Ed 2d 475 (1988)." [Emphasis added.]

MRPC 7.3(b) further restricts a lawyer's conduct with prospective clients that are permissible under MRPC 7.3(a) in that it provides:

"(b) A lawyer shall not solicit professional employment from a prospective client by written or recorded communication or by in-person or telephone contact even when not otherwise prohibited by paragraph (a), if:

"(1) the prospective client has made known to the lawyer a desire not to be solicited by the lawyer; or

"(2) the solicitation involves coercion, duress or harassment."

In evaluating the inquiry, an understanding of the three forms of computer advertising referred to by the inquirer is important. Internet communications may be posted, e.g. on home pages, in libraries, or in so-called "chat rooms," to be accessed by Internet users. Internet communications may also be initiated, so that communications are directed to a specific electronic mail "address" or to multiple electronic mail addresses.

Posted information is in the nature of general material, non-targeted, and is seen or used when a user gains access to the venue upon which the information is posted. Since the user initiates the contact with the posted information, MRPC 7.3 is not triggered. A lawyer posting information on Internet must comply with MRPC 7.1 regarding the content of the information posted, and must keep a copy pursuant to MRPC 7.2.

An article that is helpful in evaluating this issue was published in the ABA Lawyers Manual on Professional Conduct, entitled "How Do Advertising Rules Apply to Lawyer's on the 'Net'?" At page 42 of that opinion, the writer notes:

"A lawyer's website generally would not appear to involve 'in-person' or 'live telephone contact' so as to fall within a prohibition of Rule 7.3(a) although a visit to the site involves use of telephone lines, the contact is not 'live' so as to be a prohibited contact. Moreover, the contact does not involve an uninvited solicitation, but is more akin to a client's telephoning the firm or walking into the office and asking for information."

In contrast with posting is the sending of an electronic mail communication to a specific addressee or group of addressees. Sending a form communication on Internet is akin to sending postcards through the US Mail or facsimile transmissions. The communication is not as private as sending a sealed letter, and there is an expectation, but no guarantee, that the intended recipient has received the communication. MRPC 7.3 applies to such communications about lawyer services to the same extent as the rule applies to communications made through the Postal Service. The fact that the communication is made through telephone lines rather than by motor vehicle is not determinative. Shapero v. Kentucky Bar Assn, 486 US 466; 108 S Ct 1916; 100 L Ed 2d 457 (1988), appears to permit such communications. Again, the content of the communications must comply with MRPC 7.1, and copies must be kept pursuant to MRPC 7.2.

A different situation arises if a lawyer is participating in interactive communication on the Internet, such as carrying on an immediate electronic conversation. If the lawyer without invitation initiated the communication, such "real time" communications about the lawyer's services would be analogous to direct solicitation, outside the activity permitted by MRPC 7.3.

In conclusion, all forms of communications about lawyer services are governed by ethics rules, regardless of whether they are in person, on paper, billboard, telephone, fax, computer or otherwise. The important considerations under MRPC 7.3 are whether the contact is initiated by the lawyer or the prospective client, whether the offer of legal services is for pecuniary gain of the lawyer, whether there has been a prior professional relationship, and whether the prospective client is not known to need legal services of the kind offered but is generally situated to find the offered legal services useful.

Pursuant to the MRPC 7.2, a lawyer may advertise. A copy or recording of an advertisement or communication shall be kept for two years after its last dissemination along with a record of when and where it was used.

This means that Michigan lawyers can advertise on the Internet as long as they comply with the Rules of Professional Conduct. Internet advertisement is treated just like the written version and copies of the advertisement must be kept for two years. If you change your website frequently, you have a new advertisement and must somehow keep a record of it. This can be done either in an electronic format or in a printed version.

While you now have the knowledge to make sure that your website conforms to the State Bar's rules of Ethics, this does not mean that you are home free. By advertising on the Internet there are some state that think that you are advertising in their state. What do other state bars require? Some states require the payment of fees for advertisements, some require pre-registration of advertisements and some require keeping the advertisements on file for three years. Some states require certain disclosures on websites including jurisdictions of practice or geographic area and a statement that it is in fact an advertisement. A few states also require an extensive waiver disclosure on the home page of the website, which is a great way to set out your jurisdictional limitations. If you are licensed in multiple jurisdictions, you should contact the bar associations of the other states to make sure you conform to their regulations on Internet advertising.

This raises the rhetorical question, Why do tools that are supposed to make the practice of law more convenient for lawyers, make the practice scarier? I think that I have written enough scary things for one day. I scared myself just writing about them, which means I won't be sleeping much tonight.

Barry L. Brickner, 32500 Telegraph Rd., Ste. 205. Bingham Farms, MI 48025. Phone (248)258-4930; Fax (248)645-6645. Chair of the Establishing a Law Practice Committee of the State Bar of Michigan, member of the Law Practice Management and Family Law Committees of the State Bar of Michigan. Editor of the technology newsletter Network 2D for the American Bar Association Law Practice Management Section. Portions of this article were reprinted from Mr. Brickner's column in the ABA LPMS newsletter, Network 2D, Summer, 1998 Edition, Vol.7 No.1, Pg. 3, with permission.