Lawyers are slowly realizing that technology-and particularly the Internet-can enhance their law practice. As the profession jumps online and increasingly computerizes, new ethical issues arise. Is a World Wide Web page an advertisement? What should an attorney do to safeguard client secrets when disposing of a computer? Must an attorney encrypt client e-mail or risk waiving the attorney-client privilege? These and other issues are generating lots of interesting discussion.
Lawyer Web Sites
Until 1977, lawyers generally didn't advertise because legal ethics rules prohibited it. That changed in 1977 when the U.S. Supreme Court ruled that even lawyer advertising was worthy of some limited level of First Amendment protection.
Lawyers have gradually seen the business opportunity that advertising brings and have increasingly used it as a way to enhance their business. While personal injury attorneys have taken this right to advertise to its nauseating limit and often beyond, many lawyers have chosen a relatively dignified approach that is often educational to the public.
Over the last few years, lawyers have gradually begun to use web sites for advertising and other purposes. Inevitably, this caught the eye of those who regulate lawyer advertising.
As often happens with a new type of activity on the Net, they raise new legal issues. For example, is a web site advertising? Since many sites are informative, is that "giving legal advice?"
Even the Internet's world wide audience creates new issues. If a Wyoming lawyer's web site is viewed in Texas by a Texan who hires the Wyoming lawyer, doesn't Texas arguably have an interest in regulating the Wyoming lawyer's site? What if Wyoming permits web sites to say things that they do not permit in Texas? Doesn't that give the out-of-state lawyer an unfair advantage?
States are grappling with these and other issues. Recently, several states, including Alabama, Arizona, Illinois, Iowa, Michigan, Nebraska, New York, North Carolina, Oregon, Pennsylvania, South Carolina, Tennessee and Vermont have issued ethics opinions that address lawyer Internet communications including advertising issues.
Some states have dealt with the advertising issues by taking the position that web sites must simply comply with the general advertising rules. Florida is an example of a state that has created specific rules for web sites (You can find the Florida Bar's Internet Guidelines HERE.)
In Florida, they've created guidelines that make a distinction between the home page and "Information Beyond the Home Page."
They define the home page as the first page of the site or the "introductory page." They require the home page to comply with specified lawyer advertising regulations. It has to have the "hiring disclosure," "The hiring of a lawyer is an important decision that should not be based solely upon advertisements." There's more to the "hiring disclosure," but I'll spare you. I'm sure that it's at least as effective as the Surgeon's General warning on the side of cigarette packages. Don't you just get a warm fuzzy when our government takes such good care of us? (For more specifics, please check the actual Guidelines. This is just an overview.)
The Bar requires Florida lawyers to submit a hard copy of their home page, but no other web pages, along with a check for $100 to the Florida Bar's Standing Committee on Advertising. This committee, in its ultimate wisdom, then passes on whether the home page complies with the applicable advertising rules.
Now we get to "Information Beyond the Home Page." The Florida Bar treats this "as information provided to prospective clients at their request." Although these web pages must comply with the Bar's advertising rules, there is no need to file them with the Bar for review.
The national trend appears to be to treat lawyer web sites as a form of advertising even where sites are mostly informational. Lawyers need to be aware of this and be sure to comply with their state's regulations.
This sounds simple enough, but often isn't. What if a lawyer is a member of the bar of more than one state. If she runs a Yellow Pages ad in one state, she probably only needs to comply with the advertising rules of the state where that yellow pages will be distributed. This gets more complicated on the web with its worldwide distribution. Arguably, the lawyer would have to comply with the rules of every state where she practices.
E-Mail and Attorney-Client Privilege
Increasingly, attorneys are using Internet e-mail as a convenient, rapid and economical way to communicate with their clients. While it's a great way to communicate with clients, it does raise some ethical issues.
Generally, communications between a lawyer and his client are privileged. This means that a lawyer may not be compelled to disclose information in court that a client has revealed to the lawyer in confidence. Lawyers also have an independent obligation to act reasonably in preserving their clients' secrets.
This privilege against compelled testimony about a client's secret is one that can be lost inadvertently. For example, if a third person is present when an attorney and his client are talking, a court may find that they did not intend the conversation to be truly confidential. The consequence of losing the privilege is that now the court could compel testimony about a conversation between an attorney and a client.
This immunity from compelled disclosure can also be lost inadvertently in certain situations. Often though, courts will not find that the privilege has been lost where an eavesdropper overheard a private lawyer and client conversation. The key to protecting the privilege in the face of an eavesdropper is taking reasonable precautions to protect privacy.
This is where it gets interesting with e-mail. E-mail can be intercepted and read by someone other than the intended recipient. I'm not going to discuss the technical side of this issue, so just accept that it can happen. It might be somebody accidentally reading the e-mail or it could be a hacker intentionally intercepting your e-mail for spying purposes. From the perspective of the hacker, improperly intercepting e-mail is not particularly easy, but clearly it can be done.
Since e-mail can be accidentally and intentionally read by other than the intended client, is it a reasonable means of communicating client secrets? Some states have started to rule on this issue. Inevitably, a few states will go in a maverick direction, but I think that e-mail will generally be found to be a reasonable means of communication with a client.
I think that this is inevitable because while not perfect, e-mail is reasonably secure. After all, that paper envelope surrounding a first class letter is not exactly Fort Knox level security.
In a well-reasoned opinion that can be found at the Illinois State Bar Association Web site, the Illinois State Bar Association found that lawyers may use e-mail services, including the Internet, to communicate with clients unless unusual circumstances require enhanced security measures. They partly based their opinion on the existence of the Federal Electronic Communications Privacy Act which generally makes it a crime to improperly intercept e-mail.
The issues aren't fully resolved in Florida. In September, the Computer Law Committee of the Florida Bar voted to recommend provisions that liberally support the use of e-mail by lawyers.
While some feel that lawyers should be required to use readily available encryption software to encrypt confidential client communications, the simple fact is that few people want to deal with the complications wrought by encrypting messages. ("Encryption software" allows you to encode a message so that it appears to be gibberish to anyone who doesn't have the correct password and software to decode the message.) I think that e-mail without required encryption is here to stay and the law will eventually catch up by specifically permitting it.
My general advice to attorneys about the Internet is use it as much as they can in their practice. It's an incredible tool once they figure out how to exploit it. Still, they need to be aware that some of the things they do in cyberspace can put them in uncharted ethical territory. This awareness shouldn't stop them from entering cyberspace, it should just warn them to be alert to the ethical implications of their actions.