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).

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