Cyberadvice: The ethical implications of giving professional advice over the Internet
Deady, Katy Ellen
There is a great wealth of knowledge that can be obtained through cyberspace. A revolution is underway in the manner in which citizens can ask for and receive professional advice. Through the use of on-line bulletin boards and websites, doctors and lawyers are dispensing their expertise over the Internet. The Internet serves not only as a method of giving inexpensive, and often free, advice, but also allows professionals to provide many other services.1 Not since the advent of television has there been a method of communication that can provide information to so many people with relative ease and low costs. However, regardless of the abilities and favorable characteristics of the Internet and online professional advice, the law has yet to address its implications and consequences.
This Note will respond to the “adage that technology outpaces the law at every turn”2 by addressing the legal and ethical implications of providing “cyberadvice.”3 Because of the similarities in the professional relationships between both doctors and their patients and lawyers and their clients, the term “cyberadvice” will apply to both such instances, where appropriate.4
“Online attorneys provide a useful service; they convey information that they possess, by virtue of their training and experience, to people who require it.”5 The same can be said for physicians and their patients. Both attorneys and physicians who interact in cyberspace serve very useful functions. Further, these methods of delivering professional services have “profound implications for the practice of law [and medicine] in the twenty-first century.”6 Online practice has been recognized for its ability to provide services to the millions of people who have been unable, largely because of financial limitations, to receive the legal and medical services they require.7 “A quiet revolution is under way in the world of medicine as patients use the Internet’s point-and-click convenience to obtain [advice and] prescription drugs, without ever seeing a doctor or visiting a pharmacy.”8
Cyberadvice, while useful, presents the legal and ethical fields with the conundrum of allowing the positive aspects of cyberadvice to coexist without violating the regulations and duties found in professional ethics codes and the law. “[T]he specter of lawyers [and doctors] casually typing out off-the-cuff responses to questions posed by strangers and posting them online for all the world to see must be the stuff of a bar regulator’s nightmares.”9 Questions abound that have yet to be completely answered: Have professional relationships been formed such that the professional duties inherent in attorney-client and doctor-patient relationships must be fulfilled? Will professionals practice in areas where they have no expertise?
This Note will argue that the ethical implications of giving particularized professional advice over the Internet are such that if the legal system does not immediately respond, the abuses that will occur will far exceed the potential benefits. In the current state of uncertainty in cyberlaw, the legal system must impose similar (if not stronger) duties on cyberprofessionals to overcome the potential for abuse. Giving advice on the Internet is even riskier than doing so in person for several reasons. First, professionals are less likely to put as much time and research into their responses when they are receiving little or no compensation for their service. Second, “online attorneys are unlikely to be specialists in the particular area of law that any given question concerns …. Finally, lawyers in cyberspace will probably receive many questions from people who live in states other than those in which they are licensed to practice [and subsequently do not understand the intricacies of the local law].”10
I will argue that if it is possible to allow cyberadvice to continue in its current form, the law should take great pains to ensure that cyberprofessionals comply with the requisite duties to both their clients and their professions. As the potential services that can be provided and the many implications of those services on the Internet are so expansive, this Note will confine discussion to cyberadvice. Particularly, it will discuss whether the interaction between professionals and laypersons through cyberspace forms a legal relationship that would implicate such ethical problems as professional malpractice and the unauthorized practice of law and medicine. This Note will also argue that the use of disclaimers on bulletin boards and websites in an attempt to renounce any professional-client relationship or liability are insufficient to provide protection to consumers.
1. WHAT IS “CYBERADVICE”?
Cyberadvice is the use of online bulletin boards and websites to provide legal and medical advice to anyone who asks. This should be distinguished from professionals simply using the Internet as a medium to advertise their real world practices. This Note will not address (though the topic introduces several ethical implications) the solicitation of clients and patients through professional websites. Rather, it will address the practice of professionals answering questions and, in effect, providing legal and medical services entirely through cyberspace. The inquirers never actually meet the professionals, and the only information provided to the professional is that which the inquirer provides through the typed word.
Cyberadvice in the medical context can be considered a subset of telemedecine, a larger method of providing medical services that has come about in the last quarter of the twentieth century. “Telemedicine is `the use of advanced telecommunications technologies to exchange health information and provide health care services across geographic, time, social and cultural barriers.. This principle can also be seen in the legal context through the use of electronic means of communication and presentation of evidence found in that arena. One scholar, Nicolas Terry, argues that cybermedicine is an even broader concept than telemedicine.12 It encompasses not only the technology and legal issues of telemedicine, but also a far greater array of nontraditional and unique, technologyenabled interactions among health care providers and consumer-patients. Cybermedicine includes marketing, relationship creation, advice, prescribing, and selling drugs and devices, and as with all things in cyberspace unknown levels of interactivity.13
For the purposes of this Note, cyberadvice can be considered a subset of cybermedicine as Terry has described it. However, a full discussion of cybermedicine, telemedicine, and “telelaw” would be outside the scope of this
Note. Instead, this Note will be confined to a discussion of the particular legal and ethical implications of cyberadvice.14
A bulletin board is an “electronic notice board devoted to particular topics of discussion, where people can post and read messages about those subjects.”15 On many such boards professionals either have a formal arrangement with the operators of the board to provide advice, or more informally, in the course of using the board as ordinary subscribers, the professionals just answer topical questions.”16 There are several reasons that bulletin boards can be very beneficial to subscribers. First, it is easier to acquire information from a lawyer in cyberspace than in person – there is no need for an appointment. Second, “legal information is also considerably less expensive when obtained in cyberspace”17 – the only cost is the monthly charge paid to the Internet service provider. An additional advantage of contacting a professional through a bulletin board is that it can be done anonymously. “Anonymity on legal bulletin boards is likely to encourage people who would be afraid or embarrassed to seek legal advice in person to do so in cyberspace. Because of the sensitive, personal nature of many legal problems, this advantage could be considerable.” 18 Of course, as will be apparent in later sections of this Note, it is this anonymity that may pose the greatest ethical problems for cyberadvice.19
Professional cyberadvice exists in a variety of forms. Sites such as FreeAdvice, Juricite, and LawGuru provide visitors with a forum to post legal questions directly on the site with responses in the form of personal electronic mail.20 These sites also provide search engines for personal research and referral services to attorneys in a particular geographic region.21 The websites that provide medical services over the Internet also vary. Services range from providing general answers and information referrals for a variety of medical topics22 to interacting with a patient (electronically of course) to diagnosing and often prescribing medications for a particular problem.23
A description of how one such site works can best illustrate the process of providing cyberadvice. On CyberDocs.com, where “the doctor is always in,” a patient can request a “virtual housecall” for a modest fee.24 A patient who requests a “virtual housecall” automatically pages one of the site’s doctors on call, telling the doctor to log on for a consultation. The patient describes his or her symptoms and provides a medical history. The doctor asks questions to make sure that the ailment is not something serious, which might require in person care.25 If necessary, the physicians prescribe medication, using a separate Internet service to arrange for quick delivery to almost anywhere on the globe.26
It should be mentioned that CyberDocs will not prescribe narcotics, Valium, or diet pills and offers only short-term prescriptions for drugs that require close monitoring, such as blood pressure medications.27 Further, because the physicians on the site are licensed only in Massachusetts, they will only provide services to people who say they are checking in from that state or abroad.28 In reality, anyone with a computer, regardless of their actual age or medical condition, can log on and provide the necessary information to receive a variety of prescription medications.
The severe consequences of this accountability problem have already been documented. “In a complaint filed with the Federal Trade Commission, one woman reported that her teenage son bought Viagra online. And his young age was only part of the problem; the boy also had bipolar disorder and was taking blood pressure medication at the time.”29 The potential for adverse contraindications could threaten the boy’s life, and society will be looking to make someone liable.
Of course the problems inherent in the online legal arena may have equally serious implications. For example, in adoption law the statute of limitations for a biological mother to reassert her desire to raise her child varies by jurisdiction.30 If a woman places a question on a website or bulletin board, without specifying the applicable jurisdiction, a well intentioned attorney might give her incorrect information that would cause her to lose her parental rights permanently. Cyberadvice offers potential users a great deal of information at almost no cost. There is “a virtually unending flow of information on the Web [that] is allowing patients to access details on any disease, drug or medical condition in a matter of moments.”31 The obvious corollary of this, however, is that “anybody can put anything on the Internet.”32 Therefore, the soundness of advice found on the Internet may be suspect.
11. IS A PROFESSIONAL RELATIONSHIP CREATED THROUGH CYBERADVICE?
As a prerequisite to a discussion of any of the legal or ethical conundrums that may be created by cyberadvice, it is necessary to determine whether a professional relationship and legal duty exists between the professional and either the client or patient. “A physician-patient relationship is a precondition to a medical malpractice claim. Without establishing that a consultant has a duty of care to the patient, there can be no malpractice claim.”33 This is true of legal malpractice too. Furthermore, a professional is not bound by the other responsibilities placed on her by the codes of professional ethics if the person she is dealing with is not deemed to be her client or patient. Medical and legal professional relationships will be treated separately in the following discussion despite the fact that the relationships are very similar, are often analogized in the case law, and can be understood to apply interchangeably in the context of this Note.
A. PHYSICIAN-PATIENT RELATIONSHIP
Because there is no direct face-to-face contact between the doctor and his patient in cyberspace, it may be more difficult to establish that a duty exists. The relationship need not be explicit, as when stated in a contract, but may be implied when a party solicits advice from a physician who agrees to give it.34 However, “where [cybermedicine] consultations reflect traditional medical situations, the courts are likely to find a physician-patient relationship exists between the consultant and the patient.”35 There has not been, to date, any significant litigation about the specific issue of duty in a medical cyberadvice context. However, there has been litigation concerning the aforementioned telemedicine procedures from which one can predict how courts will decide the issue of duty in future medical cyberadvice cases.
The scenario typically is that a patient logs on to a website or a bulletin board with the intention of asking and receiving medical advice. Does the online physician create a relationship by responding and/or prescribing relief? A physician-patient relationship can exist by implication between an emergency room patient and an on-call physician, who is consulted by the patient’s physician [by telephone] but who has never met, spoken with, or consulted the patient, when the on-call physician (1) participates in the diagnosis of the patient’s condition, (2) participates in or prescribes a course of treatment for the patient, and (3) owes a duty to the hospital, staff, or patient for whose benefit he is on-call.36 A court could find inherent in this statement an analogous situation between the cyber-doctor and her patient. The third factor – duty to the hospital, staff, or patient – seems at first glance to be the most difficult to analogize. However, when a physician agrees to dispense information and treatment over a site such as CyberDocs or affirmatively answers a question posted on a bulletin board, she does so with knowledge that the person on the other end is expecting a response from a competent physician. Much like the on-call emergency room doctor, an “on-call” cyber-doctor is expected to or does respond, providing sometimes crucial medical advice to the patient.
Furthermore, the fact that the sites and boards are holding themselves out as arenas for providing such professional services lends credence to the analogy. “Physicians who never interact with patients are held to owe a duty of care to those patients if the doctor has in the past agreed to provide medical services to that class of patient.”37 For a further understanding of the establishment of the professional relationship one can look to analogous cases in the legal context.
B. ATTORNEY-CLIENT RELATIONSHIP
As in the medical context, with legal cyberadvice we are dealing with an implied attorney-client relationship rather than an explicit contract or agreement to provide services. Exploring where courts have refused to find that a professional-client/patient relationship exists will assist us in determining what sort of online interactions would give rise to a legal duty on the part of the professional. “To imply an attorney-client relationship … the law requires more than an individual’s subjective, unspoken belief that the person with whom he is dealing, who happens to be a lawyer, has become his lawyer.”gig Casual conversation between two people, one of who happens to be a lawyer”38 so-called cocktail party conversations – does not create a binding duty. A lawyer may, for example, answer “a casual, general question about the law, for instance in a purely social setting, without a client-lawyer relationship arising.”39
Very often a clear distinction is made between professionals giving advice of a general nature, which does not give rise to a duty, and answering questions specifically geared to a real factual and legal situation.
The organized bar has attempted since the 1930’s to regulate the giving of specific legal advice in a variety of other contexts, such as radio and television call-in shows, newspaper advice columns, [etc.] …. In each instance, the bar has attempted to distinguish between the transmission of general legal knowledge, which it has viewed as permissible, and the presentation of specific legal advice tailored to an individual’s particular problem, which it has treated as impermissible.40
Giving legal advice has been viewed as a hallmark of the attorney-client relationship and the bar has been distinctly hostile to lawyers answering questions about specific legal issues, regardless of the medium in which these responses are given.41 Based on this distinction, the current state of the law in regard to legal relationships and their duties can be gleaned. The Restatement (Third) of the Law Governing Lawyers provides a clear statement of how a relationship can be formed in cyberspace though not addressing the Internet explicitly.42
A relationship of client and lawyer arises when:
(1) A person manifests to a lawyer the person’s intent that the lawyer provides legal services for the person; and either
(a) the lawyer manifests to the person consent to do so; or
(b) the lawyer fails to manifest lack of consent to do so, and the lawyer knows or reasonably should know that the person reasonably relies on the lawyer to provide the services.43
Applying this test to the cyberadvice context, the attorney-client relationship becomes quite evident. By posting a specific legal question, the putative client manifests the intent to have a lawyer provide legal advice.44 The lawyer can then manifest consent to provide such advice by either posting or sending a message to the client expressly stating consent or by performance – by actually providing the legal advice.45
Case law further supports this interpretation. In In re Johore, a bankruptcy proceeding held that a request for legal advice might be found even when the exchange between the lawyer and client was brief.46 Additionally, in Green v. Montgomery County, a request for legal advice was found regardless of the fact that the attorney and putative client never actually met in person.47 One court has gone so far as to determine that “whether one seeks legal information or legal advice from an attorney, the attorney is being consulted for his or her professional, legal expertise,” and a formal relationship therefore exists.48 Ultimately, “whether a court is willing to imply an attorney-client relationship from the bulletin board transactions depends in part on the extensiveness of the advice sought and the fact-intensiveness of the answer given by the attorney.”49 The recognition of a legal duty on the part of professionals is absolutely necessary in order to protect consumers from the abuse that comes from providing serious legal and medical advice in cyberspace.
C. WRITTEN DISCLAIMERS – CAN PROFESSIONALS DISCLAIM LIABILITY BY REFUSING THE ESTABLISHMENT OF A LEGAL RELATIONSHIP?
It has been argued that “attorneys who answer questions on legal bulletin boards generally should be able to avoid liability for malpractice by employing a disclaimer that,” includes a statement to the effect that: “1) the information they provide is not authoritative legal advice on which a person should rely, and 2) no attorney-client relationship is formed by virtue of the communications in cyberspace.”50 There has been apparent acceptance by the cyberprofessionals themselves of the use of disclaimers; most lawyers and physicians who practice on the Internet by providing cyberadvice either make their own disclaimers or use bulletin boards and websites that employ blanket disclaimers for all of their professionals.51 An example of such a blanket disclaimer statement can be found at LawGuru.com:
This web site is provided for your information only and should not be relied on as legal advice. Nothing transmitted from this web site constitutes the establishment of an attorney-client relationship between you and The Law Offices of Eslamboly & Barlavi. Applicability of the legal principles discussed at this site may differ substantially in individual situations or in different states or countries. Remember,that when dealing with any legal matter do not rely on these materials without first seeking the advice of an attorney about your particular situation and facts. Eslamboly & Barlavi does not guarantee the accuracy of any information available through the links you will find at this web site. Nothing contained at this web site should be construed to constitute a recommendation or endorsement of any product, service, site or other law firm or attorney. These links are provided as a matter of convenience to the public.52
Proponents have suggested several possible advantages that using disclaimers on bulletin boards and advice websites may offer. Particularly noteworthy advantages include the potential to decrease the likelihood of reliance on incorrect or misleading information, the simplicity of the method, and the clarity in the language of the disclaimer.53 These advantages only exist if we assume that people actually read disclaimers when they are placed on a website or on a bulletin board system. However, the language employed on these websites and bulletin boards is likely to be technical, legal jargon. For example, most laypersons would not understand that the term “attorney-client relationship” has a legal definition and corresponding legal rights and duties. Further, the underlying principle behind cyberadvice is that people are coming to the Internet to receive legal and medical information and opinions from authorized professionals for the purpose of choosing a course of action. It seems highly unlikely that a person would ask a fact specific, and often personal, question and not expect that the information received from the “doctor” or “lawyer” is both useful and reliable.
Bar opinions in several jurisdictions exhibit a trend of skepticism among bar regulators who attempt to regulate legal advice giving through varying mediums.54 This skepticism is based on the attempts of professionals, attorneys in particular, to use disclaimers as a means of ducking liability. The basis for the skepticism is that if disclaimers were allowed in the Internet context, there is no reason to tell “real-world” professionals that they cannot present an incoming patient or client with a disclaimer of liability as well. Courts have long held that professionals cannot contract out of their professional obligations and it would defy that logic to allow cyberprofessionals separate consideration.
While courts and bar regulators have generally looked unfavorably on the use of disclaimers of liability, there may conceivably be some room for their application in particular circumstances. As Professor Lanctot has argued, “Whether a lawyer will be able to rely on a disclaimer will hinge on the nature of the request for advice, the conduct of the lawyer in response to the request, and the factual circumstances surrounding the disclaimer.”55 A disclaimer might serve as a particularly successful defense when brought by cyberprofessionals who participate only in providing general legal and medical information to requestors. An example of such a successful attempt at disclaiming liability may be found on AmericasDoctor.com:
A lengthy on-screen disclaimer informs her questioners that the company’s Internet doctors — it employs more than 100 – “will not engage in any conduct that involves the practice of medicine.” They will not diagnose illness, prescribe medication, keep a medical record of the conversation or even reveal their identities.56
As long as the doctors on this site adhere to their self-proclaimed policy of only providing general information, such a disclaimer will go far in protecting them from liability under the current trend of the courts.
Ultimately, what all this discussion of disclaimers has led to is an affirmation of the basic principle that courts are unlikely to find liability in the giving of general information but will continue to find a professional-client relationship, and hold parties liable, when specific advice is given. In light of the fact that professionals will likely not be able to disclaim themselves out of liability, it is next important to discuss the legal, ethical, and policy reasons behind holding professionals to their professional duties.
III. PRACTICE IN CERTAIN PROFEESSIONNAL ARENAS CREATES PARTICULAR PROFESSIONNAL DUTIES
A. WHEN FAULTY ADVICE IS GIVEN THE PROFESSIONAL SHOULD BE HELD ACCOUNTABLE – PROFESSIONAL MALPRACTICE
Once a legal duty has been established by the professional’s giving of advice and treatment through cyberadvice, that professional should be held to the duty to which all such professionals must adhere. There is a strongly held belief in academic discussions of cyberadvice “that attorneys on legal bulletin boards should be liable for malpractice if they provide misleading information and thereby harm a person who relies on the information as legal advice.”57 Medical cyberadvice calls forth an even stronger visceral reaction when something goes wrong since misdiagnosis, overmedication, or contraindications could cost a relying subscriber her life. “The American Medical Association says doctors who prescribe drugs to people they have never physically examined should face disciplinary action . . . . ‘I am ashamed to call them part of my profession,’ said
Dr. Nancy Dickey, a former president of the association.”58
There are several problems that are possible through this method of practice that consumers should be able to resolve through the appropriate legal channels.
A great potential for abuse exists. Information solicitors assume that the answers they receive are correct or at least prepared with a minimal level of competence and care. The information they receive, however, is in fact often incorrect or misleadingly incomplete. The requestors may rely on the erroneous information or advice. This reliance is not only foreseeable by the attorney posting the answer but is generally the primary purpose of the exchange.59
These problems can lead to a person foregoing a legal claim, incorrectly ingesting certain medications, or even more simply, feeling as though the advice they received was adequate and ending their pursuit for information.
Beyond the actual damages that malpractice through cyberadvice can cause consumers, there are more policy-based reasons for insisting that liability attaches when such a transaction occurs. If courts did not attach liability it would “increase public distrust of the legal system and would undermine the two purposes of the bulletin board system: to provide the general public with a means of soliciting reliable legal advice and to provide attorneys with a new forum to expand their name recognition and potential client base.”60 Once a legal duty is found to exist between a professional and a layperson, regardless of how they interact with one another, that professional should be held accountable for any errors that may occur while carrying out his or her duties.
B. PRACTICING ACROSS BORDERS – THE POTENTIAL FOR THE UNAUTHORIZED PRACTICE OF MEDICINE AND LAW
One of the major benefits of using cyberspace is that the geographical limitations that at one time greatly hindered people’s access to legal and medical information and advice are no longer a problem. A person in rural Montana can receive the latest medical advice or legal consultation without having to drive hundreds of miles to more urban areas. The problem that arises in the cyberadvice context, however, is that professionals may not be licensed properly in a jurisdiction where the recipient of the information resides. Professionals also may not be competent in the laws of each particular jurisdiction or, in the medical context, may not be aware of the area’s resource limitations. “Attorneys who render legal opinions over the Internet to clients residing outside [the jurisdiction where they are licensed] should also examine whether their activity could constitute the unauthorized practice of law in the other jurisdiction.”61 One major problem in dealing with the legal and ethical implications of cyberadvice is how we can either overcome or monitor the potential for abuse of the unauthorized practice of law or medicine.
The current state of the law is that “each state has plenary power to regulate the practice of medicine [and law].”62 Each jurisdiction has its own requirements and regulations regarding how professionals within its purview are required to operate. “Accordingly, the state may require any person seeking a medical license to demonstrate that he has the appropriate skill for the position as defined by the state’s licensing statute.”63 In the case of the legal profession, the state’s bar association requires passing the bar examination, or effectively waiving into the jurisdiction, in order for an attorney to legally practice within the state’s borders. The problem in the context of cyberadvice is that it is nearly impossible for a state to monitor cyberprofessionals who are practicing through virtual space without physically entering the state.
There have been several solutions proposed to overcoming this hurdle. The first involves limiting the degree of advice that the professionals are allowed to provide. As was discussed in Section II, courts are willing to conclude that as long as the advice given is general in nature it will not form the basis for a legal professional relationship and therefore providing the advice would not amount to “the practice of law.” However, as some legal experts have warned, “general advice may be incomplete,” and “giving advice that is too specific could amount to the unauthorized practice of law.”64 This solution is insufficient for two reasons. The first insufficiency is that it would require the states to come up with a monitoring system to determine how general or specific the advice is. Such a monitoring system is nearly impossible given the configuration of the Internet. Second, professionals who want to remain within the accepted state imposed bounds of interjurisdictional practice are left without a clear rule to determine what constitutes general advice and what constitutes specific advice. In short, the option proposed by some commentators that the degree of the advice given should be limited is not a viable option.
Professors Darr and Spencer suggest that:
The licensure dilemma can be solved in one of two ways. First, states could explicitly authorize the practice of [cyberadvice] by out-of-state physicians who are licensed to practice in their state of residence … [Second], to surrender our state-by-state licensing system in favor of a national system.65
Their first suggestion of explicitly authorizing out-of-state licensed professional to provide cyberadvice, while continuing to allow the states their traditional control over professional licensing, encounters the same problem seen in the earlier suggestion: it is almost impossible to monitor who is practicing within a particular jurisdiction through the Internet. One can not know who is practicing until there is a problem. Therefore, states would only be licensing those attorneys who feel compelled to report to the state, and therefore incur additional expenses, to obtain such a license. The second suggestion would allow for a national licensing system of cyberprofessionals. If an action of an attorney or physician was challenged, and she could not produce a specific license to practice over the Internet, it would amount to the unauthorized practice of law. There is also a major flaw with this suggestion because state laws, and codes of ethics in general, govern malpractice in particular and other legal and ethical considerations. It would be nearly impossible for the national system to take every jurisdiction’s laws and codes into account when providing licensing requirements to cyberprofessionals.
I can see but one solution to the national licensing notion that may save it from impossibility – each locality governs itself and the lawyers practicing in that locality are responsible for knowing the local laws. Courts could require that a national license to practice cyberadvice means that a professional who enters a jurisdiction through cyberspace is required to be competent in the laws of that particular jurisdiction. In short, a claim by a cyberprofessional that they applied the laws of their own jurisdiction or that they where ignorant of the nuances of the laws or codes in another jurisdiction will not be considered as a defense to liability. In this way, states will continue to have control over the particular laws and ethical codes that operate within their borders, while at the same time the public can be assured that a national system will monitor professionals, who will be held accountable for the advice provided over the Internet.
C. OTHER ETHICAL IMPLICATIONS OF CYBERADVICE–
A BRIEF OVERVIEW
Cyberadvice raises a host of ethical issues that, while not the focus of this Note, bear mentioning in understanding the breadth of litigation that is likely to occur as a result of providing legal and medical services over the Internet. First, using the Internet to exchange personal information about legal or medical conditions implicates the issue of confidentiality. Professionals have a duty to keep client confidences66 and, in light of the limitlessness of cyberspace, this is proving extremely difficult to accomplish. There have been several bar opinions in recent years that have discussed, for example, attorneys using e-mail to confer with clients about their cases.67 Further, in the medical context, the American Medical Association lists as one of its fundamental tenets a requirement of patient confidentiality.
The patient has the right to confidentiality. The physician should not reveal confidential communications or information without the consent of the patient, unless provided for by law or by the need to protect the welfare of the individual or the public interest.68
A second implication of cyberadvice is that professionals may not have the particular expertise, either because of training or jurisdictional issues, to provide competent advice. A fundamental tenet both of the practice of medicine and the practice of law is that professionals owe a duty of competency to their client.69 The lack of monitoring in cyberspace may allow anyone holding themselves out as competent to mislead and ultimately cause harm to a subscriber. Competency is a very real problem since “anybody can put anything on the Internet.”70 The legal profession has a rule in the American Bar Association’s (“ABA”) Model Rules of Professional Conduct devoted completely to the requirement that all lawyers who take on a particular client for a particular issue must be competent in that field. The ABA found this requirement so fundamental to the practice of law that it is the first rule given:
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.71
A similar requirement can be found in the Hippocratic Oath that all physicians swear to upon obtaining a medical degree.
I will prescribe regimen for the good of my patients according to my ability and my judgement and never do harm to anyone. To please no one will I prescribe a deadly drug, nor give advice which may cause his death ….. But I will preserve the purity of my life and my art. I will not cut for stone, even for patients in whom the disease is manifest; I will leave this operation to be performed by practitioners (specialists in this art).72
The use of the Internet to practice medicine and law can be extremely beneficial to those patients and clients who require fast, easy, and low cost professional advice. However, there is the ever present thorn in the side of all who consider its benefits: that the person purporting to provide these wonderful services may not be licensed or even competent to do so.
A third and final concern is that a lawyer might create a conflict of interest by assisting someone over the Internet.73 This problem is particularly poignant given that the recipient of the advice is anonymous and therefore the lawyer is prevented from ensuring that the online interaction is not adverse to his current clients and does not create a conflict of interest. A lawyer, by providing cyberadvice, may be disregarding his ethical obligations to his clients. There is, in reality, no true way to determine whom one is dealing with online if all communications are conducted in anonymity. Professionals should be wary of taking on new clients without some means of assuring themselves that a potential conflict does not exist.
These are some of the additional ethical considerations implicated by giving advice through this particular medium. It is a brave, and some would argue irresponsible, professional who would continue to practice cyberadvice without considering these problems and making attempts to protect themselves from liability and their clients from any resulting harm.
IV. CURRENT TRENDS OF THE LAW: CAN CYBERADVICE AND PROFESSIONAL ETHICAL OBLIGATIONS COEXIST?
A recent opinion from the Ohio Board of Commissioners on Grievances and Discipline discussed the ability of a law firm to place online intake forms on its web site and then receive questions and provide answers online.74 The Board went to great lengths to enumerate the specific ethics principles that are applicable to on-line representations, and its ruling is therefore extremely useful in predicting the trend of the law on cyberadvice.75 The principles specified by the Board are as follows:
1. The representation must not result in conflicts of interest. Accordingly, the Board advised that the client intake form must elicit information so that a traditional conflicts check can be performed.
2. The advice provided must be competent.
3. The lawyer must preserve client confidentiality.
4. Advertising of the on-line service must comply with the state’s ethics rules regulating advertising.
5. A trade name cannot be used to advertise the services.
6. The on-line service cannot be a joint business venture between a lawyer and a non-lawyer.
7. The lawyer cannot charge and excessive fee for the on-line services.
8. If the lawyer cannot adequately answer a question online, the lawyer must so advise the client. He cannot recommend other lawyers in his firm unless the client asks him to do so.
9. The lawyer cannot provide on-line advice in another jurisdiction if doing so would violate that state’s rules of practice.76
This opinion gives great insight as to the continued need for evaluation of cyberadvice. Professionals must realize that they do not have free reign over their practice areas simply because regulations currently do not address providing professional services over the Internet.
Attorneys and physicians hold a unique place in American society. Some would say that these professionals hold a monopoly over their fields of expertise because of the education and legal requirements placed on those who intend to provide such professional services. The law is taking great pains to catch up to technology in several fields. While the legal field continues to do its part, there still remains a requirement on consumers to be responsible in their dealings on the Internet. It would not be just to hold professionals to an impossible standard, such that they are the only people to hold any level of responsibility when functioning in their field of expertise. As is the case in face-to-face interactions, clients and patients must retain some accountability for their decisions to choose the Internet as the sole means by which they seek legal and medical advice. “Whatever the service, using online advice effectively takes common sense. `If you cut yourself with a chainsaw, don’t bleed on the keyboard. Head to the emergency room.”77
1. The most prominent service on the Internet is client solicitation. Almost every law firm and medical institution uses cyberspace to recruit clients. Whether it is through websites dedicated exclusively to the particular firm or on a more general site devoted to advertising legal and medical services, everyone in these fields has purchased tickets on the information superhighway.
2. Judith F Darr & Spencer Koerner, M.D., Telemedicine: Legal and Practical Implications, 19 WHITTIER L. REv. 3, 15 (1997).
3. For purposes of this Note, “cyberadvice” will include the practice of both lawyers and physicians using the various resources of the Internet to dispense professional advice and, in the case of physicians, prescribe medications to laypersons.
4. Therefore, most references to either the legal or medical atmosphere in particular can be understood to encompass the more general notion of professional services.
5. Brad Hunt, Note, Lawyers in Cyberspace: Legal Malpractice on Computer Bulletin Boards, 1996 U. On. LEGAL F. 553, 555 (1996).
6. Catherine J. Lanctot, Attorney. Cline Relationships in Cyberspace: The Peril and the Promise, 49 DUKE L.J. 147, 156 (1999).
7. See id.
8. Diane Jennings. Bitter Pill to swallow; :Cybermedicine” simplicity has fans but raise concerns, THE DALLAS MORNING NEWS, Nov. 6, 1998, at 1A.
9. Lanctot, supra note 6, 1998, at 1A.
10. Hunt, supra note 5, at 556.
11. Christopher J. Caryl, Note, Malpractice and other Legal Issues Preventing the Development of Telemedicine. 12 J. L. & HEALTH 173, 174 (1997/1998) (quoting Jim Reid, PA-C, A TELEMEDICINE PRIMER: UNDERSTANDING THE ISSUES 10 (1996)).
12. Nicolas P. Terry, Cyber-Malpractice: Legal Exposure for Cybermedicine, 25 AM. J.L. & MED. 327, 328 (1999).
13. See id.
14. See Darr & Koerner, supra note 2, for a thorough discussion of telemedicine and its implications.
15. Hunt, supra note 5, at 554 (all the major servers, AOL, Netscape, Internet Explorer, etc., have bulletin boards devoted to legal discussion); see also Rosalind Resnick, A Shingle in Cyberspace, NAT’L L. J. , Sept. 27, 1993, at 1.
16. See id.
17. Hunt, supra note 5, at 555.
18. Id. at 555.
19. Lanctot, supra note 6, at 152 (“It bears mentioning that, although the responses purport to come from lawyers, identity in cyberspace may still be easily concealed or falsified.”).
20. See FreeAdvice, available at http://www.FreeAdvice.coni/cgi-bin/Ultimate.cgi (last visited Apr. 29, 2000); Juricite, available at http://www.Juricite.com (last visited Apr. 29, 2000); LawGuru, available at http://www.LawGuru.com/chad (last visited Apr. 29, 2000).
22. See, e.g., America’sDoctor, available at http://AmericasDoctor.com (last visited Apr. 29, 2000) (site is limited to providing general information and the doctors “will not engage in any conduct that involves the practice of medicine”).
23. See, e.g., CyberDocs, available at http://www.cyberdocs.com/main.htm (last visited Apr. 29, 2000), http://www.home.earthlink.net/–mgarrettmeyer (last visited Apr. 29, 2000) (offering online counseling for depression, addiction, etc., and the first session is free!), http://stomachpain.com (last visited Apr. 29, 2000), http://www.thedoctoronline.com (last visited Apr. 29, 2000).
24. See CyberDocs, supra note 23.
26. Aaron Zitner, Cybermedicine seen as unhealthy by some; Concerns voiced over diagnosing ills, prescribing medicine on “Net, ” THE BOSTON GLOBE, Aug. 6, 1998, at C1.
28. See CyberDocs, supra note 23.
29. Claudia Kalb & Deborah Branscum, Doctors Go Dot. Com, NEWSWEEK.COM, Aug. 16, 1999, available at http://www.cyberdocs.com/mediapress/newsweek_081699.htm.
30. See Scarpetta v. Spence-Chapin Adoption Service, 28 N.Y.2d 185 (1971) (the trend in adoption cases is to shorten the period in which the biological mother can change her mind).
31. Internet: offers Pros and Cons for Doctors and Patients, AM. Health Line, Mar.6, 2000 at 1.
33. Caryl, supra note 11, at 193
34. See Natacha D. Steimer, Cberlaw: Legal Malpractice in the Age of Online Lawyers, 63 Geo Wash. L. Rev. 332, 339 (citing Sheinkopf v. Stone, 927 F.2d 1259, 1265 (1st Cir. 1991)).
35. Supra note 29.
36. McKinney v. Schlatter, No. CA96-05-100, 1997 WL 67702, at * 1 (Ohio App. 12 Dist. Feb. 18, 1997); but see Reynolds v. Decatur Memorial Hospital, 660 N.E.2d 235, 237 (Ill. App. Ct. 1996) (holding that a doctor consulted by phone does not create relationship where he often received such inquiries, which did not require examining a patient or stating an opinion, and for which he was not compensated).
37. Darr & Koerner, supra note 2, at 19 (referring to Hand v. Taverna, 864 S.W. 2d 678 (Tex. App. 1993)).
38. Sheinkopf v. Stone, 927 F.2d 1259, 1265 (1st Cir. 1991).
40. Lanctot, supra note 6, at 162.
41. Id. at 199; see also In re Blake, 17 N.YS.2d 496 (Sup. Ct. 1939) (holding that radio show the “Good Will Court” which attempted to solve real life legal issues of listeners, was not ethically acceptable (even with a disclaimer against reliance)).
42. RESTATEMENT (THIRD) OF LAW GOVERNING LAWYERS(sec)26 (Proposed Final Draft No. 1, 1996).
44. Giving of legal advice has been considered the “essence” of the practice of law. See, e.g., Lanctot, supra note 6, at 161; see also Togstad v. Vessely, Otto, Miller & Keefe, 291 N.W.2d 686 (Minn. 1980) (holding that a request for legal advice about the merits of a particular claim may readily suffice to begin the process of forming an attorney-client relationship).
45. See Lanctot, supra note 6, at 169.
46. 49 B.R. 710,714 (Bankr. D. Haw. 1985).
47. 784 F. Supp. 841, 844 (M.D. Ala. 1992).
48. Foulke v. Knuck, 784 P.2d 723,726 (Ariz. Ct. App. 1989) (emphasis added).
49. Steimer, supra note 34, at 347.
50. Hunt, supra note 5, at 554.
52. LawGuru, available at http://www.LawGuru.com (last visited Apr. 29, 2000) (emphasis in the original).
53. See Hunt, supra note 5, at 562-63.
54. See, eg., Iowa Sup. Ct. Bd. of Prof. Ethics & Conduct, Op. 93-8 (1993) (disapproving a law firm-sponsored radio call-in show where listeners’ legal questions are answered).
55. Lanctot supra note 6. at 193.
56. Sheryl Gay Stolberg, Need a Doctor in a Hurry? How About MD.com?, N.Y. TIMES ON THE WEB, JULY 4, 1999, available at http://www.cyberdocs.com/mediapress/nytimes_070499.htm.
57. Hunt, supra note 5, at 554.
58. Hunt, supra note 5, at 562-63.
59. Steimer, supra note 34, at 333.
60. Id. at 335.
61. Patrick M. Connor, Survey: Professional Responsibility, 49 SYRACUSE L. REV. 679, 701-02 (1999).
62. Caryl, supra note 11, at 184 (citing Gibbons v. Ogden, 22U.S. 1, 3(1885)).
64. Daniel B. Kennedy, PC Practitioners Proliferate: Experts Warn it may be Criminal to Dispense Legal Advice via Bulletin Boards, 79 A.B.A.J. 36, 36 (June 1993).
65. Darr & Koerner, supra note 2, at 16-18.
66. Dee, e.g., MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.6 (1983) [hereafter MODEL RULES].
67. See, e.g., New York State Bar Assn Comm. on Prof. Ethics, Op. 709, AZ., Op. 97-04 (finding that e-mail may pose a risk to confidentiality). But see S.C. Comm’n on Lawyer Conduct, Op. 97-08 (examining privacy of Internet communications in view of current technology and laws prohibiting interception of monitoring of e-mail communications and concluding that Internet users may have a reasonable expectation of confidentiality).
68. AM. MED. ASS’N FUNDAMENTAL ELEMENTS OF THE PATIENT-PHYSICIAN RELATIONSHIP, available at http://www.ama-assn.org/ethic/ceja/fundelms,htm (last visit on March 31, 2000).
69. See Hippocratic Oath, available at http://userwww.service.emory.edu/~achung/hippocrates.btml, MODEL RULWS RULE 1.1.
70. See supra note 31.
71. MODEL RULES RULE 1.1.
72. Hippocratic Oath, supra note 69.
73. See MODEL RuLES Rules 1.7-1.9.
74. Ohio Bd of Comm’r on Grievances and Discipline, Ethics Op. 99-9, 1999 WL 124454 (Dec. 2, 1999).
75. See generally Ethics Update, Loss PREVENTION (ALAS, INc.), May 2000.
77. Marissa Melton, Online Diagnoses: Finding more than a doc-in-the-box, US News ONLINE, available at http://www.cyberdocs.com/mediapess/usnews_062199.htm(visited Mar.31.2000).
KATY ELLEN DEADY*
* J.D., Georgetown University Law Center, (expected) 2001; B.A., University of Vermont, 1998. The Author would like to thank her grandfather, Joseph A. Moran, Jr., for inspiring her in her legal pursuits.
Copyright Georgetown University Law Center Spring 2001
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