Lawyering On the Internet:
Confidentiality, Solicitation, Ethics and Etiquette
© 1998 Charles F. Luce, Jr.
All Rights Reserved Worldwide
So much has been written on the subject of lawyering on the Internet the last two years alone, that any meager fuel this modest essay might add to that already blazing inferno would go quite unnoticed. More importantly, this area of the law is developing so rapidly that any printed effort would be of only quaint historic value within a few months. The author, a casual student of Greek mythology, will heed the lesson of Sisyphus, and resist the temptation to even pretend he can write anything of lasting import about such a quickly moving target.(1) Instead, below, in encapsulate form, is an overview of the recurrent hot topics in Internet lawyering, with an emphasis on the Rules(2) likely to apply regardless of changing technology, as up to date as Mr. Gutenberg's device will permit.
The speed with which technology is changing the face of legal practice is evidenced by the fact that Colo. Bar Ass'n Opinion 90, Preservation of Client Confidences in View of Modern Communications Technology (Nov. 14, 1992), is already out of date or, at least, increasingly under-inclusive. Opinion 90 is, however, a good starting point, and also evidence that the cliché "the more things change, the more they stay the same," has vitality when it comes to pouring new technological wine into old ethics bottles. The conclusion of Opinion 90 is as accurate and prophetic today, as when written:
It is impossible to predict how technological advances will alter the means by which communications can be conveyed or intercepted. However, regardless of technological developments, the attorney must exercise reasonable care to guard against the risk that the medium of the communication may somehow compromise the confidential nature of the information being communicated.
Nothing written, before or since, so succinctly summarizes the guiding principal for lawyers in the waning years of the second millennium.
RPC 1.6 restates the traditional duty of an attorney to preserve client confidences. Most attorneys easily recognize that this obligation compels that sensitive client matters not be discussed loudly in crowded dining halls or elevators, and that sensitive documents not be left lying about. More modern precautions include the ubiquitous "Notice of Confidentiality" on fax cover sheets, and precautions to make sure that sensitive client documents on theft-prone laptops be passworded.
The mass deployment of cellular telephones, the principal subject of Opinion 90, and the mushrooming use of Internet electronic mail by lawyers, did not invent the technology/confidentiality issue; they merely refocused it. The growing body of court decisions and ethics opinions published on this subject highlight two truisms: (1) a basic understanding of the technology is essential to an intelligent debate regarding potential ethics issues, and (2) the distrust of things new tends to overshadow the first truism.
Electronic Mail and Confidentiality: Is There a Duty to Encrypt?
The increased use of electronic mail has captured the imagination of the Cyber ethicists. While differences exist in e-mail systems, the general rule of caution stated by CBA Ethics Opinion 90 remains constant. Valid distinctions exist between "secure" e-mail services, e.g., MCI Mail and AT&T mail, and e-mail sent along the Internet. The former is generally regarded as more secure, and analogous to the U. S. mail, the latter is treated with considerably greater suspicion, which is probably unwarranted. A brief overview of the technology is useful to understanding the ethical issues.
The Internet is a global computer network, the technology for which was first developed by the Department of Defense, and first put to broad use by academicians. The goal of the Defense Department was to provide reliable lines of communications, less vulnerable to enemy targeting or equipment failure. The Defense Department system was designed to keep electronic communications flowing, regardless of what fate might befall any individual link. The result was a triumph of modern technology, and the foundation of the modern Internet. Consistent with the original system design, Internet e-mail communications are not routed serially in a direct line from point-to-point, but rather in data packets, generally in the fastest manner available. Each packet may take a different route. Thus, an e-mail message is, more often than not, chopped to bits (or bytes) and routed along multiple courses. Thus, it has been observed that even unencrypted Internet e-mail is more analogous to a whispered conversation in Grand Central Station at rush hour, than a loud conversation in the crowded reading room of the New York Public Library.
Encryption of electronic mail is neither fool-proof, nor, many believe, necessary for the preservation of client confidences. See Communicating with or About Clients on the Internet: Legal, Ethical, and Liability Concerns, ALAS Loss Prevention J. 17 (Jan. 1996) (taking the position that, except in the case of communications where any threat of interception must be avoided, e-mail communication should be considered secure for ethical, liability and privilege purposes, but further advising attorneys to exercise heightened caution because courts and ethics committees may misunderstand or overstate the risks.)(3); Alaska Bar Ass'n Opinion 98-2 (Jan. 8, 1998) (encryption of e-mail not required). Accord Vermont Bar Ass'n Committee on Professional Responsibility Opinion 97-5; Illinois State Bar Ass'n Committee on Professional Ethics Opinion 96-10 (May 16, 1997); Arizona State Bar Committee on Rules of Professional Conduct Opinion 97-04 (April 7, 1997); South Carolina Bar Ethics Advisory Opinion 97-08 (June 1997). But see Iowa Supreme Court Board of Professional Ethics and Conduct Formal Opinion 96-1 (Aug. 29, 1996) (suggesting e-mail should not be sent without encryption or a client waiver of confidentiality).
Those ethics opinions which have considered the subject suggest that the same general precautions and guidelines regarding client communications over cellular telephones and fax machines should apply to Internet e-mail. See, e.g., Alaska Bar Ass'n Opinion 98-2; Iowa Ethics Opinion 96-1 (1996); North Carolina Ethics Opinion 215 (1995).
The author agrees that consideration of the sensitivity of the communication, and cautionary warnings to clients who may not appreciate the potential vulnerability of interception, are good advice in all transmissions over evolving technologies. The author believes that the failure to encrypt should not be considered unethical, a waiver of privilege, or subject an attorney to professional liability in the event of interception, absent a clear and convincing showing that the communication is so sensitive that any risk of possible interception is too great. A different rule would impose an unacceptable burden on modern commerce. Cf. South Carolina Ethics Opinion 97-08 (suggesting that encrypted e-mail might be acceptable for communications where the attorney would hesitate to use an ordinary telephone). For now, however, the issue is open in Colorado.
Advertising & Virtual Solicitation: Home Pages, Chat Rooms & Newsgroups
The seductive force of the Cyberbahn has caused many staid firms who have never before considered advertising in a mass medium to face attorney advertising issues for the first time. A 1997 ABA survey of large firms discovered that, of the firms responding, 51% already have a home page, and 60% of those without one now are rushing to catch up. Having a "presence on the web" is now de rigueur. Conversely, not having a presence on the Internet is a professional embarrassment, an instant loss of credibility, particularly as to business clients having an e-mail culture.(4)
For these nouveau webmasters unfamiliar with attorney advertising regulation, the Rules of Professional Conduct offer no direct guidance. The words "Internet" and "website" are nowhere to be found. Fortunately, there is no shortage of analysis by Web ethicists.(5) Also, once familiar with the medium, the basic concepts of "advertising" and "solicitation" are not difficult to apply.
If there were any doubt before that the Internet is a "public media," in which attorneys are permitted to advertise, the 1997 Advertising Amendments to the Colorado Rules of Professional Conduct now expressly include "electronic media" in the definition. RPC 7.2(a). The basic rules regarding attorney advertising and solicitation, discussed in Section V. A. of these materials, apply with equal force to the Internet. The real challenge in applying Rules 7.1 to 7.5 to "Netvertising" is that the lines between solicitation and advertising occasionally blur.
Home Sweet Home Page
Most persons think of the Internet as the "World Wide Web," the graphical, hypertext component of the Internet accessed by "browsers." A firm website or "home page," so far one of the most common uses of the Internet by attorneys, is analogous to a printed firm brochure. Whether or not the firm website constitutes "advertising" depends upon its content. Beyond the World Wide Web, the Internet includes electronic mail, newsgroups, list servers, real-time interactive "chat," telenet, push servers, and a variety of other applications, each of which has the potential to be used for advertising or solicitation. While e-mail is generally used in the same manner as traditional "snail mail," other Internet applications do not comfortably fit a single traditional print template. For example, there is some debate about whether seeking new clients over real-time chat should be considered advertising or solicitation, i.e., is it "in-person" or "live telephone contact"? See RPC 7.3 (a).
As yet, Colorado has not established any Internet-specific regulations pertaining to practice of law. Iowa, Pennsylvania, the Philadelphia Bar, South Carolina, Tennessee and Utah have issued ethics opinions applying existing ethics rules to Internet applications. Moreover, Texas and Florida have published website advertising guidelines, requiring the submission of attorney websites for approval. See, e.g., Iowa Ethics Opinion 96-1 (1996); Pennsylvania Ethics Opinion 96-17 (1996); Philadelphia Bar Ass'n Professional Guidance Committee Opinion 98-6 (March 1998); South Carolina Ethics Opinion 94-27 (1995); Tennessee Ethics Opinion 95-A-570 (1995); Utah State Bar Ethics Advisory Committee Opinion No. 97-10 (Oct. 24, 1997); Texas Disciplinary Rules of Professional Conduct, Part 7.
Applying the Colorado Rules to Colorado attorney websites, an argument can be made that a website is neither solicitation nor advertising. Currently, a lawyer's website must be sought out by potential clients. This is more analogous to a firm brochure being mailed at the request of a prospective client, than a broadcast advertisement. Still, most attorneys do, at least impliedly, advertise the availability of their services on their website. Based upon treatment by other jurisdictions, an attorney website will probably be fairly considered advertising, though probably not solicitation. Accordingly, the requirements of Rules 7.1 & 7.2 must be adhered to, including rules regarding truthfulness, testimonial advertising, recordkeeping, content requirements.(6) The requirement of identifying jurisdictional limitations on practice imposed by RPC 7.5(c) is no more burdensome in electronic than in print media, and should not be neglected on the lawyer's website. Rule 7.5(b)'s restrictions on trade names, arguably, could create some interesting disciplinary actions for creative domain name selection, e.g., winning-lawyers.com or scorched-earth.com; however, domain names cannot be equated to trade names across the board, and the greater issues raised by such domain names would arise under Rules 7.1(a) and 7.5(a).
The Ethics of Spam
With regard to solicitation through the Internet, the verb "to Spam" -- 'Net parlance for "to send commercial messages to vast numbers of persons on a generally indiscriminate basis" -- is linked in infamy with the activities of the Phoenix law firm of Canter & Siegal which, in April 1993, posted an advertisement for immigration services to thousands of Internet newsgroups without regard to the subject of the newsgroup. The response of the Internet community to this flagrant breach of "Netiquette" was fast and furious. Thousands of incendiary responses -- "flames" in 'Netspeak -- brought the firm's Internet service provider's server crashing down, which caused the firm's ISP to revoke its access rights. The response of the legal community, while slower, was more severe. In June 1997 the Supreme Court of Tennessee disbarred attorney Laurence A. Canter for a variety of offenses, including "spamming."
While the indiscriminate nature of the Canter & Siegal posting probably would place this incident in the category of advertising, rather than solicitation, a more discriminating and targeted "Spamming" would have to comply with RPC 7.3(d)'s requirement of identifying the message as "THIS IS AN ADVERTISEMENT."
Another interesting question is whether participation in real-time chat forums, list servers or the like constitutes solicitation. While it is difficult to discern motive, and although some attorneys at least privately acknowledge participating in such forums as a means of generating business, the author believes that, absent clear evidence of a primarily pecuniary motive, attorneys will not be compelled to include the header "THIS IS AN ADVERTISEMENT," each time they partake in an Internet discussion that might generate some business, any more than an attorney should feel compelled to flee a cocktail party should someone walk up and ask for "curbside" advice. As shown in the Canter & Siegal "Green Card Incident," the enforcement mechanisms of the Internet community in regulating unwanted or obnoxious solicitation are not ineffective.
On the other hand, to the extent an attorney "stalks" chat rooms seeking to promote legal services, the real-time nature of Internet chat has many of the same dynamics as "in-person" or "live telephone contact." See RPC 7.3 (a). So far, the ethics authorities are split. Utah State Bar Ethics Advisory Committee Opinion No. 97-10, supra, concludes that, "chat-group communication is more analogous to an in-person conversation due to its direct, confrontational nature and the difficulty of monitoring and regulating it," and therefore is subject to Rule 7.3's regulations regarding solicitation. Philadelphia Bar Ass'n Professional Guidance Committee Opinion 98-6 (March 1998), the most exhaustive opinion regarding Internet chat to date, stops short of adopting a bright line rule that attorney chat is per se solicitation. Instead, the opinion notes "conversation interactions with persons on the Internet do no constitute improper solicitation, but in any one particular case the interaction may evolve in such a way that it could be characterized as such."
Law List or Referral Service?
Another practical consideration is the distinction between a permitted "law list," or other directory, and an impermissible for-profit referral service. A state or local bar hypertext link to a lawyer's website, or a presentation of the type of traditional objective information normally found in lawyer directories should present no ethical problems, while an electronic feeder operation should be recognized as improper if it purports to recommend counsel. See Colo. RPC 7.2(c).
Choice of Law on the Electronic Frontier
One troubling unaddressed ethics issue on the Cyber frontier is "whose law applies?" ABA Model Rule 8.5(b)(2)(ii) provides a choice of law rule for attorneys licensed in more than one state, whereby the rules of the jurisdiction "in which the lawyer principally practices" apply unless the "particular conduct clearly has its predominant effect in another jurisdiction in which the lawyer is licensed." Colorado has not adopted this rule. However Colorado Rule 241.17(a) provides, in part:
Except as otherwise provided by these Rules, a final adjudication in another jurisdiction of misconduct constituting grounds for discipline of a lawyer shall, for purposes of proceedings pursuant to these Rules, conclusively establish such misconduct.
Conceivably, under this rule, a state in which the attorney is not licensed could purport to assert jurisdiction over a lawyer licensed only in Colorado, with a website physically located in Colorado (but which, of course, can be accessed "world wide"), and sanction the attorney for not complying with its individual advertising requirements. Although 241.17 does permit the attorney to collaterally attack the foreign jurisdiction's findings, the problems created by the world wide nature of the Web have caused most Cyber ethicists to advocate against a state attempting to regulate attorney websites "long distance," and none has yet purported to do so, notwithstanding that various state long-arm statutes have already been quite properly applied to transactions involving commerce on the Web.
The conservative approach is for those lawyers licensed in more than one state to follow the advertising rules of the most restrictive state in which they are licensed. Attorneys licensed only in Colorado should adhere to the Colorado Rules regarding websites, but exercise caution in other Internet applications which could legitimately subject an attorney to another jurisdiction's regulations regarding the unauthorized practice of law(7) or solicitation. The regulation of attorney websites by jurisdictions in which the attorney is not licensed, however, remains an open question. See generally, ABA/BNA Lawyers' Manual on Professional Conduct, 81:565-70; Pennsylvania Ethics Opinion 96-17 (1996).
1. Fortunately for all of us, Peter Krakaur, who apparently is not a student of Greek mythology, does a marvelous job of rolling this particular stone uphill on a daily basis, as webmaster of LegalEthics.com, one of the better legal ethics sites on the World Wide Web. The author of this article's less frequent ruminations on the Law of Lawyering, including Internet Ethics, find their home at http://www.moyegiles.com/ethics
2. Throughout the author's materials reference is made to the Colorado Rules of Professional Conduct, adopted effective 1 January 1993, as amended, as "the Colorado Rules," "the Rules," or, when referring to a specific rule, "Rule," or "RPC." Reference to the prior Colorado Code of Professional Responsibility is made as "the Code," or "the Colorado Code." Reference to the American Bar Association is often made as "ABA," and to the ABA's Model Rules of Professional Conduct as "the ABA Rules," or "the Model Rules."
3. This admonition has proven warranted by at least some early ethics opinions. See, e.g., Iowa State Bar Ass'n Committee on Professional Ethics and Conduct Opinion 95-30 (1995); North Carolina State Bar Ass'n Ethics Committee Opinion RPC 215 (1995); South Carolina Bar Ethics Advisory Opinion 94-27 (1994) (suggesting that e-mail communication with a client may violate South Carolina Rule 1.6, absent an express waiver by the client), repudiated by South Carolina Ethics Opinion 97-08 (June 1997) (use of electronic mail will not affect confidentiality of client communications).
4. Overstatement? Media hype? Technology de jour? Hardly. Bill Gates' attitude is not atypical: "In Microsoft's case, we insist that all of our lawyers have electronic mail. We won't deal with them unless we have that kind of access." Christie and Aarons, Bill Gates Tells Law Firms: No E-mail, No Deal, Colorado Journal, May 23, 1997, p. 2.
The parallel to the deployment of inexpensive fax machines is, as Yogi said, " deja vu all over again." In 1985, fax machines were temperamental, slow, expensive and unreliable. No one had a "fax number." Today, a business which doesn't have a dedicated fax line is not viewed as a serious enterprise. Just a few years ago, few outside of academia or the technology subculture had a clue what the "Internet" was. Today, your e-mail address comes either before or after your dedicated fax number on your business cards and letterhead. In the last year, the absence of e-mail capability has overtaken the absence of voice mail as something to be apologized for.
5. Among of the best of the early analysis is Rogers, How Do Advertising Rules Apply to Lawyers on the 'Net?, 12 ABA/BNA Lawyers' Manual on Professional Conduct, Current Reports, p. 37 (Feb. 21, 1996); Read, Pushing the Advertising Envelope: Building Bill Boards in the Sky Along the Information Superhighway, 23 Western St. U.L. Rev. 73 (1995); and the ongoing analysis included in the ABA/BNA Lawyers' Manual on Professional Conduct, 81:551.
6. Even if Rule 7.1's requirements regarding truthfulness did not apply to attorney websites, Rule 8.4(c)'s does. Rule 7.2(b)'s record keeping requirements should be met by a regular program of archival backups, which a competent attorney should have in place regarding all computer files anyway. See Utah State Bar Ethics Advisory Committee Opinion No. 97-10 (Oct. 24, 1997), which, adopted several months after the original iteration of these materials, uses nearly identical analogies to pre-Internet attorney advertising situations to reach virtually identical conclusions regarding the ethical rules applicable to attorney web sites, e-mail, chat rooms and newsgroups.
7. A discussion of the unauthorized practice of law is beyond the scope of this article. It is important for Colorado lawyers to know, however, that violation of the law of the state in which the attorney is to alleged to have practiced without authority is punishable under the Colorado Rules:
A lawyer shall not:
(a) practice law in a jurisdiction where doing so violates the regulations of the legal profession in that jurisdiction . . .
. . . .
The definition of the practice of law is established by law and varies from one jurisdiction to another.
RPC 5.5 & Comment.