Virtual Ethics for a New Age: The Internet and the Ethical Lawyer
The expansion of the Internet has brought with it a number of useful tools. Even if they do not understand the technology behind the Internet, most attorneys appreciate the speed at which they can communicate with clients and other attorneys, the increased volume of information literally at their fingertips, and the ease with which they can complete research. ‘ However, with the benefits of the Technological Age come hosts of legal ethics issues to concern lawyerswhether solo practitioners, members of firms, government employees or anyone in between. Lawyers must be concerned with whether their electronic mail (“e-mail”) or real-time communications with clients adequately protect confidentiality. Unsolicited e-mail received by an attorney containing information relating to a current client may have serious unanticipated ramifications. Attorneys using the Internet to advertise their practice must consider whether their actions violate ethical regulations in multiple jurisdictions.
Without a universal definition of the “practice of law,” and hence one of the “unauthorized practice of law,” attorneys are faced with difficult decisions about what technologies to utilize. Part I of this Note will describe Internet practices that are commonly considered the unauthorized practice of law. Part II will examine some of the advantages of providing legal services via the Internet. Part III will address the arguments against providing legal services via the Internetnot only to protect lawyers’ monopoly, but also to protect laypersons from harm. Finally, Part IV will conclude that the legal profession should embrace technology, leap into the twenty-first century, and take advantage of the Internet and all that it has to offer.
I. INTERNET PRACTICES CONSIDERED THE “PRACTICE OF LAW”
The Model Rules of Professional Conduct (“Model Rules”) Rule 5.7 defines “law-related services” as those “services that might reasonably be performed in conjunction with and in substance are related to the provision of legal services, and that are not prohibited as unauthorized practice of law when provided by a non-lawyer.”2 This circular definition of the practice of law provides little insight into the ethical boundaries necessary to comply with the Model Rules. To clarify what constitutes the practice of law, states have attempted to define the concept through statutes and case law.3 There is, however, no uniform definition of the practice of law because each state is free to create its own definition, resulting in a variety of interpretations throughout the United States.4 Some states have created “Unauthorized Practice of Law Committees” to prosecute the unauthorized practice of law.5
Because there is no uniform law, determining what constitutes the unauthorized practice of law on the Internet is complicated.6 Generally, the practice of law includes rendering legal advice, preparation of legal documents, and holding oneself out as engaged in the preparation of legal instruments.7 Some states also consider the preparation of pleadings and the rendering of any service that requires the use of legal skill or knowledge.8 Technological advances in recent years have created a new forum for the practice of law-the Internet. Potential areas of ethical dilemmas include online comments made by a lawyer admitted in one jurisdiction, and read by a person in another; online attorney advertising; e-mail and attorney-client privilege; online attorney referral sites; and online subject matter guides.
A. ATTORNEYS’ ONLINE COMMENTS AVAILABLE IN STATES IN WHICH THEY ARE NOT ADMITTED
The unauthorized practice of law includes the practice of law in a jurisdiction in which the lawyer has not been admitted to practice.9 In Birbrower v. Superior Court of Santa Clara,10 a California client that claimed it was not responsible for paying the law firm’s fees argued that its New York firm had engaged in the unauthorized practice of law when lawyers from the firm went to California to attend meetings and advise the client.” Because the firm had engaged in the unauthorized practice of law, the client thought that it should not be responsible for paying the law firm’s fees.12 The court stated that the “primary inquiry is whether the unlicensed lawyer engaged in sufficient activities in the state, or created a continuing relationship with the California client that included legal duties and obligations.”13 The court further stated that “one may practice law in the state in violation of section 6125 [the relevant unauthorized practice of law statute in California] although not physically present here by advising a California client on California law in connection with a California legal dispute by telephone, fax, computer, or other modern technological means.”14 Although Birbrower represents a case in which the unauthorized practice of law occurred through traditional physical contact, cases and ethics opinions defining unauthorized practice of law in a traditional forum can be useful in determining its implications in the online world. 15
In August 2002, the American Bar Association (“ABA”) convened a task force to attempt to promulgate a model definition of the “practice of law.”16 The task force determined that one definition of the practice of law would not fit all states and ended up recommending only that all states come up with an individual definition of the practice of law.17 The task force provided direction, but emphasized that the report was to act as a starting point for states to develop definitions of the practice of law.18 In response to these recommendations, a few states have developed or revised their own definitions of the practice of law.iy The practice of law is often deemed to occur when a lawyer provides specific legal advice to a person, thereby creating an attorney-client relationship.20 This practice of law becomes unauthorized when the attorney is not licensed to practice law in the jurisdiction from which the client’s legal needs arise.
Under the Restatement (Third) of the Law Governing Lawyers, an attorneyclient relationship is recognized where a person manifests to a lawyer the person’s intent that the lawyer provide legal services for the person, and the lawyer either manifests to the person their consent to provide the legal services or the lawyer fails to decline although the lawyer knows that the person reasonably relies on the lawyer to provide the services.21 Applying the Restatement’s analysis, an online exchange between a layperson and a lawyer that contains a request for the provision of legal advice, the lawyer’s consent to provide such legal advice, and the actual provision of that advice can constitute legal services, thus creating an attorney-client relationship.22 In some cases, it is considered reasonable for a layperson to rely on legal advice that has been specifically tailored to the facts of his case.23 Courts have said that it is this reasonable belief that there is an attorney-client relationship that governs the determination of that relationship.24 One of the dangers of online legal communications is that the attorney-client relationship may be formed between a client and attorney in different jurisdictions, with or without the knowledge of the attorney, resulting in the breach of the ethical rule prohibiting the unauthorized practice of law.
One common way that legal advice is provided over the Internet is through Internet chat rooms offering online forums for real time conversation that are interactive and open to the public.25 Attorneys have used these chat rooms to provide legal advice to people from various locations.26 Model Rule 7.3 addresses the use of Internet chat rooms to solicit business, providing, in relevant part, that “a lawyer shall not by in-person, live telephone or real-time electronic contact solicit professional employment from a prospective client when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain.”27 This real-time electronic contact is forbidden as a method of solicitation because of its propensity to overwhelm a potential client’s judgment by a lawyer’s persuasive insistence on being retained immediately.28
An attorney’s use of this medium is grouped with telephone and in-person contact-forms of solicitation forbidden because such contact between a lawyer and a prospective client subjects the individual to the “private importuning of the trained advocate in a direct interpersonal encounter.”29 In an ethics opinion, the Illinois State Bar stated that participation in a chat group constitutes the practice of law where the lawyer offers personalized legal advice.30 Other states consider the practice of law to include advice given to a layperson under circumstances in which it would be reasonable to rely on it, even if that advice is given in a brief chat room encounter where the lawyer and layperson do not meet.31
Legal advice given in Internet chat rooms is not always considered unauthorized practice of law.32 However, providing specific advice, targeted to the individual fact patterns presented by the audience, is often considered unauthorized practice of the law.33 Lawyers providing legal advice on Internet chat rooms are warned that lawyers’ comments must be truthful, lawyers should consider whether an online party is represented by another lawyer, lawyers should not “deal on behalf of a client with a person who is not represented while the [lawyer] is stating of implying that he or she is disinterested,”34 and lawyers should consider including a notice of the jurisdiction in which the lawyer is licensed to practice.35 Although some lawyers using the Internet as a vehicle to provide legal advice phrase their statements in general terms, one study suggests that inquiries made over the Internet are rarely general questions; rather, they are specific questions asked by people seeking specific legal advice from lawyers.36
Thus, a disconnect exists between the type of advice laypeople are seeking and the type of advice lawyers are permitted to give.37 The Association of the City Bar of New York has suggested that “almost any question and answer may in fact constitute legal advice, even if the questioner does not appear to be seeking ‘specific’ legal advice.”38 The lines between general and specific advice, and authorized and unauthorized practice of law are blurred, creating ethical confusion for attorneys engaged in online legal communications.39 In any question of whether or not advice given by a lawyer constitutes the unauthorized practice of law, the nature of the advice must be considered.40
Lawyers who give specific legal advice via Internet forums may avoid the charge of unauthorized practice of law where a moderator acts as an intermediary.41 The advice-giving lawyer can argue that he did not directly provide advice to the advice-seekers because the moderator in fact related the information to the advice-seeker.42 However, Model Rule 5.5(a) not only restricts a lawyer from practicing law “in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction,” it also prohibits a lawyer from “assisting] another in doing so.”43 In addition, Model Rule 5.4(b) states that “a lawyer shall not form a partnership with a non-lawyer if any of the activities of the partnership consist of the practice of law.”44 Furthermore, the third party moderator, if he is not a lawyer, may also be charged with unauthorized practice of law.45 Similarly, where a law firm actively moderates or reviews postings on a bulletin board, a listserv, or newsgroup, the firm is more likely to be deemed a “publisher” or a moderator and therefore could be held liable for third party postings offering specific legal advice.46
Another way to avoid a charge of unauthorized practice of law is to provide a disclaimer to users of the website or chat room that explains that the information provided is not intended to be legal advice.47 The disclaimer might state what jurisdictions the lawyer is authorized to practice in, and that the website is not intended to be a source of advertising, solicitation or legal advice. Additionally, the disclaimer might include the following text: “the owner of this Web page does not wish to represent anyone desiring representation based upon viewing this Web page in a state where this Web page fails to comply with all laws and ethical rules of the state.”48 However, these boilerplate disclaimers may not provide the informed consent necessary to render a layperson’s reliance unreasonable.49 Where the layperson’s reliance remains reasonable, the attorney-client relationship can be formed, accordingly, the lawyer providing legal advice may be liable for the unauthorized practice of law.
B. ATTORNEY ADVERTISING SUBJECT TO REGULATION
While the Model Rules permit advertising “through written, recorded or electronic communication, including public media,”50 the Model Rules still prohibit the solicitation of residents outside of the lawyer’s jurisdiction.51 Using traditional forums for solicitation, like newspapers, radio, or television, gives rise to restrictions on the jurisdiction in which the lawyer may solicit.52 In Florida Bar v. Kaiser,53 the court held that a New York attorney had engaged in the unauthorized practice of law when his interstate firm advertised in Miami phone books, television, and newspaper outlets, creating the impression that Kaiser was a Florida attorney.54 Unlike advertising placed in traditional forums, on the Internet there are no jurisdictional boundaries.55 Furthermore, a website differs from a television or newspaper advertisement because Internet users have to perform a search to find the lawyer’s website.56 Reaching out therefore happens at the behest of the consumer, not the attorney.
In November 1994, only five law firms had websites providing information about the law firm, its lawyers, and its practice groups.57 Today, virtually all large law firms, and many small law firms, have websites.58 Such websites are considered advertising, and are subject to the Model Rules concerned with advertising, because the websites generally exist to disseminate information regarding commercial transactions to prospective clients.59 Because these websites are accessible to everyone, everywhere, it is unclear whether a website advertisement constitutes solicitation of residents outside of the attorney’s jurisdictional boundary.60
Determining whether a lawyer has engaged in unauthorized practice of law over the Internet by soliciting in jurisdictions in which he or she is not authorized to practice is based on a spectrum of website distinctions. Because solicitation through “in-person, live telephone or real-time electronic contact,” where the lawyer’s motive is pecuniary gain, is prohibited, many jurisdictions have distinguished types of websites based on the level of contact initiated by the lawyer.61 First, there are passive websites. These sites contain information, but offer no interaction with the site visitor. second, there are interactive websites where information is communicated and exchanged between the site operator and site visitors. Third, are websites through which business is conducted including sales, solicitations, acceptance of orders, links to other sites, product lists, and the transmission of files.62
Courts examining the issue of unauthorized practice of law are least likely to hold the operator of a passive website liable for unauthorized practice, and most likely to hold that the operator of a website through which business is conducted is engaged in unauthorized practice.63 Websites that are interactive, but do not include business transactions, present a problem requiring a case-by-case analysis of the issue of unauthorized practice.64 Generally, law firms and lawyers operating websites are advised to include disclaimers on their websites and to update the content of their websites to ensure that the material is current and accurate.65 The regulations vary significantly between states.66 The Arizona State Bar, for example, requires that law firm websites identify office locations, state whether the law firm is affiliated with other law firms linked to the website, and maintain a copy of the website in a “retrievable format.”67 Such regulations provide some guidance to lawyers, however, because law firm websites are accessed in various jurisdictions, it becomes highly improbable that a “single website can comply with the many inconsistent and irreconcilable versions of state rules of ethics.”68
All states strictly regulate attorney advertising, and many also regulate law firm websites.69 For example, New York requires attorney advertising for legal services to include a physical address, not just a website or e-mail address.70 A difficulty that arises with respect to Internet advertising is that the Internet does not have jurisdictional boundaries.71 Although the lifting of the prohibition against advertising did not predate the popularization of the Internet by much, in traditional forms of media attorneys could limit the reach of their advertising to the jurisdiction(s) in which they were licensed to practice and were, therefore, familiar with the rules of advertising.72 In Cyberspace, however, an attorney’s webpage can be viewed at any terminal in any state.73 Most states have established that attorney websites will generally not be considered solicitation, but can be considered advertising.74
Before the advent of the Internet, an attorney could comply with various jurisdictional requirements by tailoring the advertising to the specific location. However, because many attorneys or law firms are licensed to practice in multiple jurisdictions, many attorneys have been faced with the difficult task of attempting to comply with the regulations of many states at once.75 Although many of the rules seem to be observable with only minor difficulties, some will present more of a problem by making it difficult to comply with all rules simultaneously.76 For example, while most states allow a law firm to use the same name in every jurisdiction, Nevada requires all named partners to be licensed to practice in Nevada.77 If an attorney or law firm practices in multiple states with similar requirements, this kind of regulation would place a large burden on attorneys and firms wishing to practice in multiple jurisdictions.78
In North Carolina, attorneys may respond to a question posted on an Internet message board or in a chat room, but are encouraged to respond only to questions of federal law so as to avoid potential unauthorized practice of law charges.79 North Carolina attorneys are also encouraged to list the jurisdictions in which they are licensed to practice when providing a response.80 Florida, on the other hand, took its cue from Michigan, Utah, Virginia, and West Virginia in prohibiting attorney participation in Internet chat rooms to solicit professional ” employment.81
C. USE OF E-MAIL TO CORRESPOND WITH CLIENTS AND ITS EFFECT ON ATTORNEY-CLIENT PRIVILEGE
E-mail is often considered tantamount to written correspondence.82 Accordingly, where letters are considered solicitation, sending e-mails to people in jurisdictions where the sender is not authorized to practice can be deemed solicitation and the unauthorized practice of law.83 When an e-mail is sent, often the only information available about the recipient is the e-mail address. Because the sender is not on notice that the recipient is a resident of a state other than the one in which the sender is authorized to practice, the sender may not intentionally be engaging in the unauthorized practice of law.84
Many states initially questioned the permissible use of e-mail as a method of correspondence with clients out of concerns about interception.85 Initially, a few states prohibited the use of e-mail for client communication without either a client waiver or encryption of the message.86 Many, however, were satisfied that e-mail was as safe as some other forms of permissible communication.87 In Michigan, the use of e-mail was deemed to be permissible because it was found to be similar to a facsimile transmission or post card.88 The ABA Standing Committee on Ethics and Professional Responsibility has determined that unencrypted e-mail is a legitimate form of communication.89 Eventually, all states approved the use of e-mail for client communications.90
Some law firms use e-mail to provide newsletters and alerts to their clients and prospective clients.91 The Ethics Advisory Committee of the Utah State Bar stated that such e-mails, where they encouraged the recipient to hire the lawyer’s services, constituted solicitation and must be marked as “Advertising Material” to comply with Utah’s requirements and the ABA’s applicable ethics rule, Rule 7.3(c).92 In Wisconsin, an unsolicited e-mail providing an attorney with information helpful to a current client may be protected under attorney-client privilege.93 If the attorney’s webpage indicates the attorney is interested in representing clients on particular matters, in the absence of a disclaimer warning potential clients that an e-mail to the attorney does not create an attorney-client privilege, the attorney may find that he or she has entered into an attorney-client relationship with the potential client.94
Depending on the circumstances, an e-mail from a prospective client who obtained the lawyer’s address via an Internet advertisement or website may be protected by attorney-client privilege “for the limited purpose of protecting client confidentiality and avoidance of conflicts.”95 However, the actual information contained on the advertisement or website is critical in determining the extent of the relationship formed by the delivery of the e-mail message.96 Generally, the attorney-client relationship cannot be created “simply because a law firm receives a detailed e-mail message from a prospective client.”97 Model Rule 1.18 states:
Not all persons who communicate information to a lawyer are entitled to protection under this Rule. A person who communicates information unilaterally to a lawyer, without any reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship, is not a “prospective client” within the meaning of paragraph (a).98
Because the Model Rules contemplate a discussion between client and lawyer before the attorney-client relationship can attach, unsolicited e-mails with detailed information about the client most likely do not create such a relationship.99 Moreover, an unsolicited e-mail inquiry does not provide the lawyer the opportunity to consent to the relationship; no fees are exchanged; no advice is given; and no legal services are provided.100 The Arizona State Bar Committee on the Rules of Professional Conduct published an opinion stating that unsolicited e-mails do not create an attorney-client relationship.101 Attorneys in receipt of unsolicited e-mails may use the information contained to help current clients.102
Determination of what is considered an “unsolicited” opinion will depend on how the prospective client obtained the attorney’s e-mail address.103 If an attorney simply maintains a webpage without disclaimers or express limitations, the attorney may owe the prospective client a duty of confidentiality.104 The New York City Bar also found that the receipt of unsolicited e-mails would not result in disqualification of an attorney from representing a client based on information received in the e-mail, but the attorney could only reveal information contained in the e-mail to the client if the webpage adequately disclaimed observation of confidentiality of information.105
One problem stemming from e-mail communication between lawyers and their clients is the possibility that the content of the e-mail will be misdirected.106 Model Rule 4.4 requires that a lawyer who inadvertently receives a document via e-mail must inform the sender of the lawyer’s accidental receipt.107 State applications of rules governing similar inadvertent communications include those related to the “inadvertent fax.” In one case, a New York attorney received a fax from his adversary intended for his adversary’s client.108 The New York State Code of Professional Responsibility did not specifically address this issue, but provided that “in the absence of explicit guidance, a lawyer should act ‘in a manner that promotes public confidence in the integrity and efficiency of the legal system and the legal profession.'”109 In this era of electronic communication, it is virtually inevitable that many attorneys will mis-send an e-mail or fax.
D. WEB PAGES PROVIDING REFERRALS TO ATTORNEYS
The Internet as a marketplace is also bringing many changes to the practice of law. As with many other services, potential clients like to shop around on the Internet to find out what services and prices are available.110 Services such as eLawForum.com allow attorneys to submit bids to prospective corporate clients.111 There are corresponding sites catering to individuals, although most are simply listings of attorneys.112 Individuals can, however, post the details of their case confidentially at www.legalmatch.com.113 This free service will contact qualified attorneys who then post offers on the individual’s case.114 Potential clients can view lawyer profiles, fees, and ratings assigned by other Internet clients to assist in making the decision concerning which attorney to hire.115
Lawyer referral sites raise ethical issues about the nature of the communication between the consumer and the lawyer, and the business arrangement between the lawyer and the service provider. Model Rule 1.18 gives prospective clients protection where the attorney-client privilege has not yet descended, but the information the prospective client has provided to the lawyer should nonetheless be considered confidential.116
Model Rule 7.2(b) states that “a lawyer shall not give anything of value to a person for recommending the lawyer’s services except that a lawyer may pay the usual charges of a legal service plan or a not-for-profit or qualified lawyer referral service.117 There is some question whether the fees paid to the Internet referral ‘ service provider are compensation for the cost of advertising, or for the referral.118 If the fee is compensation for the referral, the lawyer employing that referral service may be violating his ethical obligations.119 The State Bar of Arizona Committee on the Rules of Professional Conduct has held that it is unethical for Arizona lawyers to use such referral services where the service forwards individuals’ legal questions to attorneys who have paid for the referral service.120 The Florida Bar has similarly restricted the use of lawyer referral services by Florida lawyers.121 South Carolina came to a contrary conclusion: fees paid to an Internet referral service provider are similar to the varying fees advertisers pay to television stations or magazines based on effectiveness of advertising and can therefore be considered advertising.122
E. ONLINE SUBJECT MATTER GUIDES (E.G., DIVORCE, CUSTODY, TRAFFIC VIOLATIONS)
Nolo Press started the legal self-help movement in the 1970s by publishing do-it-yourself bankruptcy kits.123 Since then, NoIo has expanded into the Internet by providing downloadable basic legal documents including wills and complaint forms.124 Nolo Press’ logo pictures lawyers as sharks wearing ties and reading documents.125 The publisher of legal self-help books and software was founded by two legal aid attorneys who were “tired of turning away people who needed their help but weren’t poor enough to qualify for it.”126
On www.freeadvice.com, people can view frequently asked questions on criminal, accident, divorce, child custody, family, personal injury, insurance, bankruptcy, aviation, admiralty, intellectual property, and employment law.127 The site also provides links to a legal advice center that urges viewers to call a number for a flat fee of $20 per call to obtain legal advice.128 Similar services are offered by www.nolo.com, www.lawguru.com, legalhelpnow.org, and www. legalsurvival.com.129 At www.prepaidlegal.com, residents of the United States and Canada can purchase “pre-paid legal services” for a monthly fee that is less than $26 per month depending on location and coverage.130 For this price, members can call a hotline at any time and an attorney skilled in the practice area they request will return their call.131
At www.amoralethics.com, David Palmer, the executive director and only active member of the Committee to Expose Dishonest and Incompetent Attorneys and Judges, provided free legal advice to viewers.132 As he explained on his website:
We are all led to believe that whenever we are faced with some legal matter that we automatically are required to employ an attorney. There are many matters of a legal nature that we can and should resolve on our own without incurring unnecessary expenses of an attorney. Although I am not an attorney, I can assure you that it is not necessary to be a lawyer in order to provide some guidance and/or advice on how to deal with your legal problems.133
Palmer’s background was as a court reporter and legal clerk in the United States Army. Palmer was brought before the Ohio Board of Commissioners on the Unauthorized Practice of the Law.134 Although the Board found that the website was set up to provide legal advice, they did not find any evidence that Palmer had rendered specific legal advice to a specific person.135 In November 2001, a California judge ordered Palmer’s website be “disassociated and disconnected from all Internet search engines, indexes, and providers” after hearing a lawsuit from an attorney Palmer had criticized on his site.136
F. INTERACTIVE WEB PAGES AND DOWNLOADABLE SOFTWARE
For people who want to draft their own wills, residential leases, articles of incorporation, or contractual agreements, there is a legal software market to satisfy the demand.137 A minority of states have determined that the unauthorized practice of law can still be found in the absence of any sort of personal contact between an attorney and his or her client.138 However, most have determined that there must be some type of personalized contact between the attorney and client.139 This means that, while interactive web pages and legal software are not per se unauthorized, any sort of personalized legal advice given may be considered “practice of law” to be regulated.140
Because this is such a new topic, the case law is sparse. Cases that are potentially useful are those regarding the sale of self-help books and do-ityourself legal kits.141 In Oregon State Bar v. Gilchrist,142 the court stated that “do-it-yourself divorce kits” were permissible where the publisher of the kits did not have “personal contact with their customers,” because the kits did not render individualized advice.143 However, in Committee v. Parsons Technology,144 a Texas district court barred the sale of Quicken Family Lawyer, a software program that enabled laypeople to prepare their own simple wills and other legal documents, because the program “created an air of reliability about the documents, which increases the likelihood that an individual user will be misled into relying on them.”145
In response to the court’s decision, technology lobbyists pressured the Texas legislature into enacting an emergency amendment to the Texas Unauthorized Practice of Law statute.146 The statute now reads: “[T]He ‘practice of law’ does not include the design, creation, publication, distribution, display, or sale … of written materials, books, forms, computer software, or similar products if the products clearly and conspicuously state that the products are not a substitute for the advice of an attorney.”147 The Fifth Circuit reversed the district court’s ruling after the Texas legislature enacted the statute.148 Ultimately, a task force was formed to examine the effect that computerization has had upon the practice of law.149 The task force determined that the Texas legislature’s response was the appropriate one, and proposed a statute virtually identical to the one enacted by the legislature.150
G. INFORMATION SECURITY REQUIREMENTS
The Federal Trade Commission (“FTC”) mandated information security precautions under the privacy protection requirements of the Gramm-Leach-Bliley Act (the Act).151 The FTC broadly interpreted the term “financial institutions” in the Act to cover those “significantly engaged” in “financial activities.”152 This broad interpretation brought some unexpected attorneys into its sphere of influence, surprising those who were not in the banking and finance industries.153 Attorneys involved in tax, trusts and estates, financial advisory services, real estate leasing, real estate closings, and debt collection practice areas had to comply with the requirements of the Act upon very short notice.154
The ABA requested that the FTC exempt attorneys from the requirements of the Act for a variety of reasons, but particularly because attorneys are already bound by broader ethics requirements.155 Among these is Model Rule 1.6, which creates a duty to act “competently to preserve confidentiality.”156 Model Rule 1.6 also implicates Model Rules 1.1, 5.1, 5.3.157 The FTC denied the ABA’s request due to its lack of authority to waive the requirement, but the ABA filed a suit to have lawyers exempted from the Act, and legislation was introduced to have lawyers exempted.158
Even attorneys not involved in the financial industry must still exercise caution over information contained in databases and computer systems. When a lawyer or law firm gives a computer maintenance company access to its files for maintenance purposes, the lawyers must carefully guard client information.159 As with the Act requirements, protection of information contained on computer systems implicates rules regarding confidentiality and competency.160
II. POTENTIAL BENEFITS OF MAKING LEGAL SERVICES AVAILABLE OVER THE INTERNET
A. SERVICES CAN BE MADE AVAILABLE TO MORE PEOPLE
Unauthorized practice of law statutes were originally intended to protect the public from “unscrupulous lawyers.”161 The statutes were intended to provide the public with the “assurance of competence and integrity . . . [and] complete confidence in the undivided allegiance of one’s counsellor in the definition and assertion of the [legal] rights.”162 Although maintaining the public confidence in the legal profession is a laudable goal, the changing nature of legal practice has caused some tension between the goal and the statutes.163 Many websites offer personalized legal document preparation including wills, divorce papers, and other documents.164 This easy access may help maintain the public confidence, yet may also violate some statutes.
Because Internet bulletin boards and chat rooms provide a veil of anonymity, the availability of legal advice without recognition may encourage people who would be afraid to seek legal advice in person to do so.165 In addition to providing anonymity, software that is downloaded from the Internet can be used to create legal documents by people who live in isolated areas or have restricted mobility.
Florida allows attorneys to provide legal services over the Internet without ever meeting with the client in person, but all rules of professional conduct must still be observed.166 If the matter cannot be handled over the Internet due to its complexity and the client is not willing to come into the attorney’s office, the attorney must decline or withdraw from the representation.167
B. SERVICES ARE AVAILABLE TO PEOPLE WHO WOULD OTHERWISE NOT BE ABLE TO AFFORD LEGAL SERVICES
The policy issue inherent in the provision of legal advice by non-lawyers online is whether the legal profession should permit the use of technology to provide lower and middle class people a simple and inexpensive way to create personalized legal documents at the potential cost of the rendition of legal services by unqualified persons.168 Some critics of unauthorized practice of law regulations argue that lower income consumers have been “deprived of legal information” and that lawyers have “exercised a monopoly or proprietary stranglehold on legal information.”169 In many cases, however, the people benefiting from online legal services would not be obtaining legal services otherwise. Many people make enough money to be disqualified from public aid, but few feel they can afford an attorney.170
III. DISADVANTAGES OF MAKING LEGAL SERVICES AVAILABLE ON THE INTERNET
A. TAKES BUSINESS AWAY FROM ATTORNEYS
Some non-lawyer entrepreneurs who have been successful in using the Internet to provide legal document preparation insist that the market for their products is a direct result of the legal profession’s abdication of “its responsibility to meet the basic legal needs of ordinary people at an affordable rate.”171 Faced with this competition, lawyers as a group tend to view Internet lawyering as a threat.172 Accordingly, lawyers have used unauthorized practice of law statutes to protect against incursions on the legal profession by real estate agents, bankers, and insurance adjusters via the Internet.173 The legal community may be protecting its own monopoly on the provision of legal advice rather than protecting consumers.174
Even if practices such as interactive online forms are deemed to be exempt from unauthorized practice of law restrictions, non-lawyers can advertise and charge fees to fill out forms for people who are just as afraid of computers as they are of attorneys.175 The distribution of legal advice by the layperson armed with computerized forms could end up costing the individuals and the legal system far more in attorney and court fees to straighten out messy problems than the computerized form saved.176
B. POTENTIALLY HARMFUL INFORMATION GIVEN UNDER GUISE OF “LEGAL ADVICE”
Prohibiting the practice of law by people who are not members of the bar is intended to protect the public from legal services rendered by unqualified people.177 However, our society has long allowed so-called “unqualified people” to provide legal services by allowing people to represent themselves.178 Perhaps this decision should be left to the savvy consumer. Our legal system allows individuals to represent themselves in court, to fill out their own forms, and to pay their own taxes; maybe that same legal system should trust non-lawyers to make the decision whether to fill out a form on their own or to seek help from a non-lawyer friend.179
When lawyers provide advice in “real time” in chat rooms, the possibility exists that the lawyer will mistakenly apply the wrong jurisdiction’s law in providing advice.180 Without knowledge of the advisee’s domicile, the lawyer is in a position to make major mistakes in providing advice.181 People who receive bad advice from lawyers have a remedy by suing for malpractice or threatening to have the lawyer disbarred.182 These remedies are not available to those people who rely on self-help sources.183
In New York County Lawyers’ Ass’n v. Dacey, a non-lawyer prepared a self-help book, How to Avoid Probate.184 The court found that Dacey was engaged in the unauthorized practice of law in violation of a state statute after Dacey conceded that “a carelessly-drawn instrument can have Very harmful results.”185
A lawyer practicing in a state other than his own may lack the training or knowledge in the local law that could harm a client.186 However, the European Union, which permits multi-jurisdictional practice of the law, leaves the determination of the fitness to practice law in a given jurisdiction up to the client.187 A client may receive better representation from the client’s regular attorney-an attorney intimately familiar with the client’s situation, if not with the laws of that jurisdiction-than from a local practitioner ignorant of the client’s affairs, no matter how familiar the local practitioner is with the local laws.188
A. MUCH OF THE BUSINESS GENERATED WOULD NOT BE BUSINESS GOING TO THE ATTORNEYS CONCERNED
Courts and ethics bar opinions have drawn a distinction between the provision of general legal information and the provision of specifically tailored legal information.189 While general information is not considered a violation of ethical and statutory rules against the unauthorized practice of law, specific advice is a violation.190 It is this distinction that permits the dispensing of general advice through radio talk shows, television programs, newspaper columns, books, seminars, and, more recently, Internet websites and chat rooms.191
Many of the people seeking remedies in online chat rooms and through self-help software would probably not seek professional help in the absence of the Internet. Why would someone pay a professional attorney to fill out paperwork in an uncontested divorce when she could do it online or with software for relatively little money?192 In markets such as divorce or other form-heavy practices, lawyers who do not adapt will be left behind.193
B. THE THREAT OF DETERRENCE OF ETHICAL BEHAVIOR OUTWEIGHS BENEFITS OF AVOIDING UNETHICAL BEHAVIOR
One of the concerns of allowing attorneys access to electronic forms is that an attorney would charge a client the cost of developing the document from scratch even when only generating a simple document by filling in the blanks. Unfortunately, this potential for abuse exists regardless of the use of computerized forms.194 The Model Rules, as currently written, do not take into account the complex jurisdictional issues created by an Internet that reaches clients irrespective of location.195 Some legal commentators argue that uniformity of ethical rules is called for, particularly in the online community.196 The need for this uniformity has increased in recent years as law firms have expanded into multi-jurisdictional practices, states have responded by generating diverse ethical rules, and the resulting confusion has had a negative effect on the public’s confidence in lawyers.197
MELISSA BLADES* & SARAH VERMYLEN**
* J.D., Georgetown University Law Center (expected May 2005). I would like to thank my family and friends for their support and encouragement.
** J.D., Georgetown University Law Center (expected May 2005).
Copyright Georgetown University Law Center Summer 2004
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