A good site for all sorts of information on Internet legal ethics is: legalethics.com

 

Selected websites which in my opinion raise questions about legal ethics and the Internet as they currently are structured:

Free Advice: freedadvice.com

Personal Injury Law Home Page

Attorneys on line ("affordable legal bulletin board service")

Divorce Services On-Line

Bankruptcy Chapter 7 Debt Relief Credit Counseling

Stock Fraud Clearinghouse

The Law Office

 

TABLE OF CONTENTS

I. Formation of the Attorney-Client Relationship and the Internet

A. When Detrimental Reliance On Legal Advice Is Foreseeable,
An Attorney-Client Relationship Exists

B. Detrimental Reliance on Legal Advice in the Internet Context

C. Prevention of Unwanted Liability

II. Professional Ethics And Internet Communications

A. State Bar Regulation of Web Pages

B. Confidential Communication with Clients

C. Jurisdiction: Where Do You Practice and Whom Must You Report to?

APPENDIX

Opinion No. 96-01 (1996)	Iowa Supreme Court Board of Professional Ethics and Conduct (attorney's website)
Opinion 97-5 (1997)	Committee on Professional Responsibility, Vermont Bar Association (e-mail)

I. FORMATION OF THE ATTORNEY-CLIENT RELATIONSHIP AND THE INTERNET

Communication in cyberspace can be quite informal, and frequently you do not know who you communicating with, or where they are located. Does the informality and anonymity of the Internet possible create an unforeseen or unwanted attorney-client relationship? Should you contact your malpractice carrier for posting bad information to a newsgroup?

A. When Detrimental Reliance On Legal Advice Is Foreseeable,
An Attorney-Client Relationship Exists

As every Minnesota lawyer knows (or should know), the leading case on the formation of the attorney-client relationship is Togstad v. Vesely, Otto, Miller & Keefe, 291 N.W.2d 686 (Minn. 1980). In Togstad, the Minnesota Supreme Court held that a contract is not necessary in order for an attorney-client relationship to form. Rather, the critical factor is whether a person might foreseeably rely on legal advice given.

. . . Mrs. Togstad sought and received legal advice from Miller under circumstances which made it reasonably foreseeable to Miller that Mrs. Togstad would be injured if the advice were negligently given. Thus, under either a tort or contract analysis, there is sufficient evidence in the record to support the existence of an attorney-client relationship.

Id., at 693.

In Togstad the plaintiff went to a lawyer about a possible medical malpractice matter. No contract was ever signed, because the lawyer declined to take the case after interviewing the prospective client. However, in declining the case, the lawyer told the plaintiff that "there wasn't a case." Id. Relying on that statement, the plaintiff let the statute of limitations expire. Id.

The foreseeability of the harm of negligent advice is critical in Togstad. Unlike law review articles, or brochures, the defendant-attorney in Togstad was faced with a particular set of circumstances presented by an identifiable person.

B. Detrimental Reliance on Legal Advice in the Internet Context

The Internet combines elements of both mass and person-to-person communication. The types of communication to prospective clients varies considerably based on how the communication occurs. There are no bright lines, however: while it may be clear in the "real" world what constitutes "one-way" or mass communication (e.g., advertising), on the Internet the boundaries are blurred. The current state of the art of Internet communication breaks down as follows:

Usenet/newsgroups (e.g., mn.politics, or alt.barney.die.die.die)

Chat groups (e.g., Internet Relay Chat, or AOL Chat Rooms)

E-mail (e.g., greg@abbottlaw.com)

World Wide Web (e.g., http:///www.abbottlaw.com)

File Transfer Servers (e.g., ftp9://support.apple.com)

Each of these areas raises unique concerns for formation of attorney-client relationships.

Usenet, or newsgroups, consists essentially of public messages boards on a huge variety of topics. People "post" messages to these boards, and replies to those messages are posted. All messages posted are available to anyone in the world with Internet access, for a certain period of time after posting (typically two weeks). There are now archive servers who store postings to news groups for an indefinite time, and which provide search engines to locate postings by name, topic, or keyword.

Hypothetical: Suppose John Doe posts a message asking questions about his pending divorce. A helpful lawyer with Usenet access, respond to the posting by describing the substantive family law of Minnesota. But, since this is an informal communication, the lawyer doesn't make it clear that the law may vary considerably from state to state. The man who posted the question actually lives in Arizona, and the advice given by the lawyer results in a substantial harm to the poster.

Arguably, an attorney-client relationship is formed. The lawyer was dealing with a specific person who had questions about a particular legal problem. Was detrimental reliance foreseeable by the lawyer "under the circumstances"? At best this is a fact question to decided by a jury, assuming the lawyer's malpractice carrier lets it get that far.

Newsgroups have great potential for forming ad hoc attorney-client relationships. In responding to specific questions, an attorney is behaving as if that person had asked him or her questions in their office, or at a cocktail party, with one massive difference: the attorney's response is posted world-wide for anyone to read.

E-mail raises similar concerns, albeit without worldwide publication concerns. Often a lawyer with a web page will receive e-mails from people with specific legal problems. Those e-mails should be treated the same as a phone call from a prospective client. Don't give advice without the expectation of detrimental reliance.

Chat groups are an electronic form of person-to-person communication. They are on-line cocktail parties. If a person raises a specific fact question in a chat room, and a lawyer provides a specific answer, the possibility of detrimental reliance might arise. Unlike a cocktail party conversation, however, chat room users can more easily record the conversation for later review (and typically do so).

The most likely way in which the World Wide Web may trigger an attorney-client relationship is by leading to another form of Internet communication, typically e-mail. Most web pages are simply on-line brochures, no more or less likely to trigger an attorney-client relationship than any mass produced advertisement or article sent out by a lawyer. However, because the publishing costs of putting material on the Web are so much lower, the temptation exists to be far more specific with the information provided. At a certain level of specificity, detrimental reliance might be foreseeable, even if the lawyer is unaware of a specific person making a specific request.

C. Prevention Unwanted Liability

Disclaim, disclaim, disclaim. Put a disclaimer into your e-mail signature block, and your web page: "The opinions and ideas expressed herein do not constitute legal advice and should not be relied upon as such. If you have a specific legal problem, please consult a lawyer."

Meet Togstad's requirements. Do not reply to e-mail without making meeting the other requirements of a Togstad letter: inform the person of the statute of limitations, indicate that your decision to decline representation does not equal an opinion as to the merits of their claim, and encourage them to seek out other lawyers.

Remember the Whole World is Watching. Unlike a cocktail party, your informal Internet communications have a tremendous reach. Be careful what you say.

II. PROFESSIONAL ETHICS AND INTERNET COMMUNICATIONS

A. State Bar Regulation of Web Pages

State bar authorities typically take the position that attorney web pages are a form of advertising, and are thus subject to the general rules applicable to attorney advertising. Informally it appears that Minnesota will also treat web pages in this fashion.

The ethical requirements for all attorney communication, whether in the form of advertising or not, appear in Rule 7, Minnesota Rules of Professional Conduct, and include the following:

• Truthfulness as a whole, Rule 7.1(a)
• Avoid creating unjustified expectations about results the lawyer can achieve, Rule 7.1(b)
• Avoid comparisons with other lawyer's services, unless factually supportable, Rule 7.1(c)

The specific requirements for advertising are as follows:

• A copy of the advertisement must be kept for two years, with a record of when and where it was used, Rule 7.2(b)
  
• Any advertisement must include the name of at least one licensed Minnesota lawyer responsible for its contents, Rule 7.2(d)
  
• The word "ADVERTISEMENT" must appear on written solicitations directed to prospective clients whom the lawyer knows may be in need of specific legal services, Rule 7.2(f)
  
• An advertisement must disclose if the client is liable for expenses under a contingent fee arrangement, Rule 7.2(e)
  
• A lawyer shall not pay anyone for recommending the lawyer's services, Rule 7.2(c)

Of particular interest for attorney web pages is the requirement that a copy of an advertisement be kept for two years. Web pages frequently change and are updated. Each of the various versions must be preserved.

In addition, the requirement that the name of one licensed lawyer responsible for the contents appear in the advertisement would clearly apply.

Other (more restrictive) State Bar Regulations.

Texas and Florida have enacted regulations specifically applicable to attorney web pages. Texas is no different than many other states, in that it concluded that web pages were simply another form of advertising, and applied the rules generally applicable to attorney advertising. See Interpretative Comment 17, State Bar of Texas Advertising Review Department. However, the catch is that Texas' general rules on lawyer advertising are quite strict. These regulations include:

• filing a copy of the advertisement with the Advertising Review Department of the State Bar of Texas, with a $50 check to cover the cost of reviewing the ad
  
• Required Disclaimer for all ads: "Not Certified by the Texas Board of Legal Specialization" and (if applicable) "No designation has been made by the Texas Board of Legal Specialization for a Certificate of Special Competence in this area."
  
• Rules 7.04 and 7.07, Texas Disciplinary Rules of Professional Conduct. Texas attorney web pages in particular are subjected to the filing requirement:
  
• Hard copy of first screen and URL address must be filed with Advertising Review Committee, along with any subsequent material changes to the first screen
  
• Any subsequent screen "primarily concerned with solicitation of prospective clients" must also be filed

Interpretative Comment No. 17, State Bar of Texas Advertising Review Committee, ¶¶ 17(A), 17(B).

The Supreme Court of Iowa has also issued some relatively harsh regulations for attorney web pages. Determining that web pages were a form of advertising, the Iowa regulations therefore trigger some rather onerous disclaimers which must be included in the web page:

The determination of the need for legal services and the choice of a lawyer are extremely important decisions and should not be based solely upon advertisements or self-proclaimed expertise. This disclosure is required by rule of the Supreme Court of Iowa.

A description or indication of limitation or practice does not mean that any agency or board has certified such lawyer as a specialist or expert in an indicated field of law practice, nor does it mean that such lawyer is necessarily any more expert or competent than any other lawyer. All potential clients are urged to make their own independent investigation and evaluation of any lawyer being considered. This notice is required by rule of the Supreme Court of Iowa.

See Formal Opinion 95-30, Iowa Supreme Court Board of Professional Ethics and Conduct (May 16, 1996); DR 2-101, DR 2-103, and DR 2-105, Iowa Code of Professional Responsibility for Lawyers.

B. Confidential Communication with Clients

Another area of dispute with respect to lawyers and Internet communication is confidentiality of client communications, particularly via e-mail.

E-mail is transmitted from one computer to another as it winds its way from the lawyer's computer to the client's, and vice versa. At each step of the way, the e-mail message is copied into the hard drive of the server, where it waits to be delivered along to the next computer. Once it reaches the recipient's host computer, it resides in the hard drive until the user downloads it herself, and deletes it on the host computer's hard drive.

At any point in this process, the system administrator or her employees can simply tap into the e-mail spool and simply read the messages which are present. In addition, it is possible for experienced outsiders to hack into the e-mail spool and read, delete, or alter e-mail.

E-mail is becoming an extremely useful tool for lawyers and clients to communicate. However, the vulnerability of e-mail raises the questions of whether such communications are, in fact, confidential. If they are not, then the attorney-client privilege for those communications has been waived.

As a practical matter, e-mail is probably no more or less vulnerable than are cell phone communications. However, the theoretical openness of e-mail has caused grave concern for a number of lawyers. One solution to the lack of confidentiality for e-mail is to encrypt the e-mail between lawyer and client. A number of programs exist for that purpose (including PGP, and MacPGP). They are cumbersome and may be time-consuming to set up, however. A better solution is simply to limit the content of your e-mail.

A number of state bar associations have enacted regulations or issued opinions relative to confidentiality of Internet communications. These opinions are split as to the nature of the communications and the threat they might pose to attorney-client confidentiality.

The Iowa and North Carolina bar associations require that e-mail must be encrypted, unless the attorney has express written permission from the client allowing use of unencrypted e-mail, and acknowledging the risks involved in doing so. See Opinion 96-1 (1997); 97-1 (1997), Iowa Supreme Court Board of Professional Ethics and Conduct (attached to these materials); North Carolina State Bar Ethics Opinion No. RPC 215.

Vermont and Illinois have decided that lawyers may use e-mail to communicate with client without encryption unless "unusual circumstances" demand enhanced security methods. See, e.g., Vermont Bar A'ssn, Advisory Ethics Opinion 97-5 (1997) (attached to these materials).

C. Jurisdiction: Where Do You Practice and Whom Must You Report to?

Practicing law in a jurisdiction without a license for that jurisdiction is a violation of professional ethics. Jurisdictions have the power to punish any lawyer (including unlicensed, out-of-state lawyers) who practice there.

For individual, one-to-one communication, the practice of law through the Internet is no different jurisdictionally than practicing through use of fax or telephone.

For mass communication, jurisdictional issues become more tangled. An attorney licensed in Minnesota may put up a web page designed to attract business in Minnesota. However, that web page can be viewed by anyone in the world who has access to the 'net. Information contained in that web page may well be applicable outside Minnesota, for example, discussion of federal law, or a discussion of another state's law.

If the information on the web page becomes "legal advice" more than just analysis or opinion, and that advice can foreseeably be relied upon detrimentally by a person outside the geographic boundaries of the lawyer's license to practice, the lawyer responsible for the web page may well be practicing law without a license. More to the point, the lawyer may well be subjecting him or herself to disciplinary action in a jurisdiction thousands of miles away.

"Minimum Contacts." A predictable outline of "minimum contacts" necessary to support long-arm jurisdiction has not yet been conclusively determined for Internet transactions.

However, advertising on the Internet alone may constitute "minimum contacts" sufficient to support out-of-state jurisdiction. In State of Minnesota v. Granite Gate Resorts, Inc., ____ N.W.2d ____ (Minn. App. 1997), the Attorney General sought to bar a Nevada company from offering gambling services through the Internet to Minnesota residents. The defendant naturally resisted on jurisdictional grounds. The only contacts between the defendant and the forum state were the Internet web page, viewable in Minnesota, a small number of Minnesota residents who placed bets with the service, and the phone transactions between Nevada and Minnesota necessary to activate the service. The defendant had no assets, personnel, or other physical connections to the state. In deciding that Minnesota courts possessed jurisdiction, the district court concluded that advertising on the Internet alone means that a business avails itself of the privilege of doing business in Minnesota, subjecting it to the jurisdiction of Minnesota courts. Id. See also Inset Systems, Inc. v. Instruction Set, Inc., 937 F. Supp. 161 (D.Conn. 1996); Panavision International, L.P. v. Toeppen, 938 F. Supp. 616, 621-22 (C.D.Cal. 1996); A. Uberti and C. v. Leonardo In & For PIMA, 892 P.2d 1354, 1362 (Ariz. 1995), cert. denied, 116 S.Ct. 273 (1995).

It seems axiomatic that a state may enforce its own laws within its own borders, in its own courts.

Originally presented to the:

6th Annual Computer Law Institute
October 9, 1997

Updated October 1998

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