United States: Lawyers’ Interaction on the Internet: The Dos and Don’ts

The Internet has become an important marketing tool for many businesses in the past few years. "Internet usage is at an all time high. Almost 100 million U.S. adults are now going online every month, according to New York-based Mediamark Research. That's half of American adults and a 27 percent increase over 1999 in the number who surf the Web."¹ This affects how a large amount of businesses reach potential consumers. Lawyers are no exception. Those practicing law use the Internet to market their services and offer state-specific opinions, prepare documents and even offer dispute resolution.²

This paper looks at some of the current practices of lawyers on the Internet and the pitfalls they encounter, and proposes sound practices that can help lawyers avoid liability and breach of ethics.

The paper will begin by explaining the recognition of web sites as advertising and in turn protected commercial free speech. Then it will look at some current practices. Finally, it reviews some of the pitfalls that attorneys face when choosing to use the Internet in their legal practice and suggests which should be embraced and avoided.

The Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility concluded, in a 1996 informal opinion, that web pages by lawyers constituted lawyer advertising subject to the Pennsylvania Rules of Professional Conduct if they contained communications about the lawyer or the lawyer’s services.³ Even though Rule 7.2 (a) of the Pennsylvania Rules of Professional Conduct, which defines advertising, does not use the term "Web page" or "Internet" there has been an informal opinion, by the Pennsylvania Bar, recognizing the term "public media" as encompassing web sites.⁴

Since attorneys’ Web pages are considered advertising they are protected commercial free speech. This protection will prevent a complete ban by any state’s ethics rules on lawyer Web sites but will not prevent the ethics commission from regulating the manner in which they are operated.⁵

The Supreme Court of the United States has decided that lawyer advertising is protected as commercial free speech under the First Amendment to the Constitution. In, Bates v State Bar of Arizona, a group of lawyers had set up a small practice designed to help the community by providing legal services for low fees. The firm would only take simple matters and relied on a steady volume of cases in order to have enough operating income. They advertised in order to keep the organization going. This was a direct violation of Arizona’s ban on lawyer advertising.⁶ In its ruling, the court used the Hudson test for protection of commercial free speech. The court used an intermediate scrutiny test stating, "…[A] restriction on commercial speech that, like the advertising at issue, does not concern unlawful activity and is not misleading is permissible if the government: (1) asserts a substantial interest in support of its regulation; (2) establishes that the restriction directly and materially advances that interest; and (3) demonstrates that the regulation is narrowly drawn."⁷

Provided that the Bar has met these three requirements they are able to regulate the manner in which a lawyer operates a web site. The Court upheld restrictions in which a firm that practiced personal injury law would mail advertising to people who suffered from accidents and the state Bar had only required that attorneys wait thirty days before contact by mail. There was a substantial interest in "protecting the privacy and tranquility of personal injury victims and their loved ones against intrusive unsolicited contact by lawyers."⁸

In contrast, where a lawyer retrieved the addresses of those who had been filed against for foreclosure and the model rules prevented mailings to those who are not known to have legal services but were in a position where they may need the service, the Court did not distinguish how the audience for the advertisement had come to be recognized. The Court recognized the attorneys’ right to contact by mail those who may need their services.⁹ So a state Bar has the right to restrict mailings within 30 days of an event that may trigger a need for legal services but can not ban a lawyer from mailing because of the manner in which the information was gathered.

Despite the lack of clear language specifically referring to the Internet in the Pennsylvania Rules of Professional Conduct, there seems to be a parallel between existing rules and the new form of communication.¹⁰ The mailings referred to above could have been sent via e-mail and there is little doubt that the outcome of the cases would have been the same. "…[T]his Court's lawyer advertising cases have never distinguished among various modes of written advertising to the general public…"¹¹

Pennsylvania’s rule is based on the attorney’s knowledge of the state of mind of the prospective client and whether or not the lawyer had reason to know that the person was not able to exercise reasonable judgment in employing an attorney. It does not restrict mailing and at the same time sets no time limit.¹² What about other forms of communication like message boards and chat rooms? If e-mail is analogous to mail then web pages could be viewed as similar to print advertisements, but what about Web site postings and chat rooms? What are the ways that attorneys are communicating, and what rules and liabilities may be triggered?

Many law firms have web pages that provide links to biographies of the attorneys and areas of practice.¹³ Other web sites, affiliated with a large network of attorneys, provide Web site visitors with a form to fill out that asks for information regarding the legal problem and the person’s location, then a local attorney will respond.¹⁴ Some pre-paid legal services follow the same process, only after potential clients have subscribed to the service a non-lawyer refers them to a local attorney that participates in the service.¹⁵

Of the various types of web sites to be found, this paper will more closely examine two: the web page utilized by a single law firm, and the larger web pages that can have multiple firms and lawyers participating in one site.

The web site for Kirkpatrick & Lockhart has links to attorneys’ biographical information, the areas of practice and articles about their community service, litigation and awards they have received.¹⁶ "We recently received the CIO award for technology," said Wendy Niess, the manager for the Harrisburg office. "I am sure that our web site was a factor in receiving the award."

One of the interesting aspects of their web site is "extranet" that appears as a link on the home page. Extranet allows clients to grant access to all work product that attorneys generate on behalf of a client by using a secure username and password. "Extranet is something that more and more clients are interested in," said Neiss. "If you’re a large corporation that we represent, you can have your in-house attorneys log on and review our work product."¹⁷

Clearly advantages like extranet can increase the ability of a law firm to better serve its clients, and is a classic example as how lawyers’ web sites can be beneficial to clients and the practice of law as a whole. However, there remain potential problems in other areas common to most lawyers’ web sites. For example, Kirkpatrick & Lockhart’s web site provides lawyers’ e-mail addresses so that they can be contacted directly. This firm refrains from granting any advice over the Internet. Neiss said that the attorneys generally refer the potential client to a phone number and then communicate via telephone. She said that they then proceed with the normal procedures in place to establish clients. For example, once the potential client has spoken with an attorney, a background check is conducted to ensure there is not a conflict of interest. The site also has a terms of use section that attempts to outline the purpose of the site and disclaims certain types of liability.

To contrast this, Lawguru’s web site, located at www.lawguru.com, has a number of attorneys from firms and private practice who participate. They also have a question and answer bulletin board where lawyers provide advice for free. Web site visitors may also enter chat rooms and have discussions regarding the law. Similar to Kirkpatrick & Lockhart’s web site, there are terms of use and disclaimers that attempt to limit liability.

There are two problems that may be encountered by lawyers with web sites. First, there is the potential for civil liability and second, the potential for discipline under the Pennsylvania Rules for Professional Conduct. Each creates different problems and raise different issues so it’s important to look at them separately.

Liability

Civil liability begins at the moment there is an attorney-client relationship because that is the point when the attorney will owe a fiduciary duty. This relationship can start without formality. Some suggest that attorneys should be careful not to give advice at cocktail parties or even over a backyard fence to the neighbor due to the possibility of creating an attorney-client relationship.¹⁸ This may seem like it goes too far, but attorneys should realize that others may follow hip-pocket advice and suffer from doing so. "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."¹⁹

The Restatement Third §14 Formation of Client Lawyer Relationship states:

"The lawyer may explicitly agree to represent the client or may indicate consent by action, for example by performing services requested by the client."²⁰ This could be done by answering a question, or perhaps the simple act of responding to an e-mail or posting on the internet. "Even when a lawyer has not communicated willingness to represent a person, a client-lawyer relationship arises when the person reasonably relies on the lawyer to provide services, and the lawyer, who reasonably should know of this reliance, does not inform the person that the lawyer will not do so."²¹ The issue of whether an attorney client relationship exists is a matter of fact to be decided by a jury,²² so it is difficult to clearly see what behavior will cross the line.

The question is what a lawyer may safely do in Internet communications. What questions can a lawyer safely answer? The courts have looked to how general the advice is. If an attorney is asked a question regarding a will and its validity due to no witnesses’ signatures, the lawyer could talk about what’s needed to have a valid will according to the Statute. If the lawyer were to get into facts and apply them to the law then he or she are treading or crossing the line.

In the past, with radio, television or newspaper interviews, the ABA has allowed general discussion of the law, but the more specific it became the more danger lawyers were in.²³ It follows that the same may be true of the internet. If a lawyer answers questions based on the facts presented to them, or even gives a simple yes or no answer, it could cause an individual to rely on the lawyer’s words as sound advice and open the lawyer to liability.

Most lawyers try to limit their liability with disclaimers, and that act in itself can be viewed as a breach of ethics. Following is the disclaimer for the R.F. Wittmeyer, LTD:

The disclaimer above tries to curb liability in a few areas but even though the Pennsylvania Rules of Professional Conduct suggest that a disclaimer can be made, they also make it very difficult, as shown in the following:

This rule mirrors the ABA Model Rules of Prof’l. Conduct Rule 1.8(h) (1983).

The "unless" clause in Rule 1.8(h) was based on the assumption that law in some jurisdictions expressly permitted agreements prospectively limiting malpractice liability. "Other than the senses noted in comment b, no such law exists. Accordingly, Subsection (3) states a general prohibition against such an agreement- essentially the rule that would result in every jurisdiction from application of ABA Model Rule 1.8(h)."²⁶

Therefore, no lawyer can disclaim liability. It can be seen that if the lawyer knows that the advice she is about to give is not sound, then she should not give it.

Not only is an agreement unenforceable, but in some cases the lawyer is subject to discipline for even making the agreement. The posting on lawguru is generic and just inserts the user’s name in a boilerplate form. One lawyer had the user name "I am liable for everything." This user name plugged into the automatic disclaimer created an amusing contradiction and illustrates how ineffective disclaimers are.

Attorneys who are on lawguru have different ideas on how to avoid liability. The following are some of their viewpoints and practices that they shared in e-mail interviews.

Most of these attorneys seem to want to grant only general answers on the law and stay away from specific facts: that appears to be the proper practice in avoiding liability. The last two attorneys are actually raising their liability by basing their answers on facts and making it a practice to state, "based on the facts you have given me." Attorneys still feel that disclaimers can shield them from liability. This is a broad misconception and all attorneys should avoid reliance on a disclaimer. A disclaimer may affect whether the person reasonably believes there is an attorney-client relationship. If the disclaimer gives notice to the person and they could not reasonably believe there is a relationship, then liability will be not attached. However, if a lawyer says there is no attorney-client relationship meant to be established, and then gives advice, there can still be a relationship provided the person reasonably relied on the advice.

Breach of Ethics

Professional conduct can be breached on the web by violating the requirements on advertising or even the rule against direct solicitation in some cases. Direct solicitation is forbidden by rule 7.3 and may be triggered if the communications turn from e-mail to a chat room. "A different situation arises if a lawyer is participating in interactive communication on the Internet, carrying on an immediate electronic conversation. If the communication was initiated by the lawyer without invitation, such real time communications about the lawyer’s services would be analogous to direct solicitations, outside the activity permitted by MRPC 7.3."³² Therefore, the chat room on lawguru.com could constitute direct solicitation.

Pennsylvania does not have any opinions on this matter but did issue two opinions on solicitation that, when applied to the Internet, leave a gray area. For example, an attorney wrote the ethics commission for Pennsylvania about a "marketing strategy" that would give free "general advice" on wills to an organization. Potential clients would also be given information on how they could contact the attorney later if they wished, and the services would be discounted. The opinion said, "An announcement that you are providing a course on wills, which is open to members of the organization, and a statement that anyone who attends the course will be entitled to a discount on estate planning, should not by itself cause any ethical problems."³³

The Pennsylvania Ethics Committee issued an opinion in 1991 on whether or not it would be acceptable for a law firm to set up a booth at a trade show so that people with legal problems could voluntarily come to the booth and ask questions. The committee said that it would be likely to violate Rule 7.3 (a) (direct solicitation).³⁴ Could a web site be like a booth? Its not likely to be decided that web sites would be analogous, however, a chat room is more likely to breach the ethics rule for direct solicitation because it involves a real time communication similar to a phone call.

Lawguru uses a message board for visitors to posts questions. It could be found that it violates Rule 7.3. because even though they are not answered in real time, message boards could be seen as analogues to a booth. Lawyers would set up the booth where there is a consolidation of people, and people would come to the booth seeking advice. The lawyers would then interact in real time with prospective clients.

With the postings on lawguru, people questions and the lawyers respond, but not in real rime. At first glance, it seems that the rule will not apply because it specifically states that written communications are not included under subsection (a). Subsection (b) deals more with written communications that would more clearly implicate the message board communications. However, the opinion by the committee that a booth would be direct solicitation seems to be based on the lawyers coming to a public function in order to generate client base.

If this is the weighted act and not the form of communication, then the message boards violate Rule 7.3. The comments under this rule seem to allow for written communication (mail) because it is less likely to take advantage of the potential client at a time when they are vulnerable. The comment states the reason for the rule "It [direct solicitation] subjects the lay person to the private importuning of a trained advocate, in a direct interpersonal encounter."³⁴ If this is the basis of the rule, then message boards should be considered direct solicitation.

It can be fairly stated that a message board is like a phone call because the potential client is sending a message to an attorney, even if it’s placed out for more than one attorney. The difference is that, on a site like lawguru, the lawyer acts positively and seeks out the client as well.

Message boards for one law firm’s web site would be more appropriate than a message board like the one on lawguru. Lawguru takes the decision to seek counsel away from people and develops more of a forum for those with legal problems. Lawyers then can sign up for the site and search for people with legal problems. This is, therefore, closer to direct solicitation and should be a discouraged practice.

If a firm were to have its own message board, it would show that the prospective client made an affirmative decision to seek an attorney. Although that may avoid direct solicitation, it would then create the danger that an attorney-client relationship. In turn, you run the risk of liability, but that could be avoided by using the same techniques used in other communications, such as phone or e-mail.

The message board for lawguru does not provide a benefit to those who seek solutions to legal problems. All the lawyers attempt to give a vague answer that prevents liability. Therefore, the advice is rarely helpful and is not likely to be complete.

The site is more a tool for lawyers to contact potential clients. The majority of answers to questions consist of a vague answer and an address and phone number for the person to contact the lawyer. For all these reasons the Bar should discourage participation by attorneys on sites like these.

Those who may view this practice as distasteful must keep in mind that Rule 7.2, covering advertising, refuses to make rules in regard to taste. "Questions of effectiveness and taste in advertising are matters of speculation and subjective judgment." For this reason the Bar does not wish to create limitations that may prevent information that people may need or wish to have.³⁶ However, it is in the best interest of the profession and the public to allow lawyers to hunt web postings for clients. This practice would not be a total ban on advertising, thus causing it to fall outside Constitutional protections.

Rule 7.1 deals with communications concerning a lawyer’s service and should be reviewed to avoid any violations when constructing a web page. Rule 7.1(b) states in part that, "A communication is false and misleading if it: (b) is likely to create an unjustified expectation about results the lawyer can achieve such as…the lawyer’s record in obtaining favorable verdicts." This would mean that Kirkpatrick & Lockhart’s news articles posted on its web site should stay clear of posting articles on verdicts. Rule 7.1(d) states "A communication is false and misleading if it: (d) contains subjective claims as to the quality of legal services or a lawyer’s credentials that are not capable of measurement or of verification."³⁷ So lawyers must be careful when making claims about their services.

Rule 7.2 outlines requirements for advertising. Since web pages are considered advertising, a lawyer’s web site must conform to these requirements. Lawyers are required to keep a copy of their web pages for two years. They are not required to submit them for approval but must keep the records for evidence in the event that the sites are questioned later for violating ethics standards.

Lawyers cannot give any money to non-lawyers for referrals. Lawyers need to be aware of this before participating in web sites. Pre-paid legal services are available on the web but they receive their money by providing the pre-paid service. Other web sites will put a prospective client in touch with an attorney by having them complete an on-line form that goes to any lawyer participating in a group of lawyers all over the country. That lawyer then calls the prospective client to get more detailed information over the phone and then refers the individual to a local lawyer participating in the group. Generally, these practices present no ethical issues as long as when lawyers pay for a referrals, they are sure the money is not going to a non-lawyer.

Lawyers’ web pages should not use any celebrity or public figure because if they are viewed as giving an endorsement, the requirements for advertisement will be violated. If a site does feature a paid endorsement, the ad or site must disclose the fact that it is a paid endorsement. Likewise, reenactments or portraits of clients by non-clients must also be disclosed. Since judgments and prior success can create a misconception or an "unjustified expectation," it may be good to steer clear of any endorsement.³⁸

Fee information can be posted on a web site and is not likely to be constricted by the rule that all ad prices must be honored for at least 90 days after publication. In this situation, the web is less like a printed ad and more like a real time communication. This rule prevents lawyers from printing ads with low fees and then raising the fees. The comment under Rule 7.2 points out that the goal is to ensure that the public has "accurate dissemination of information." On the web, there will not be a printed advertisement in circulation. The web page can be updated so that there is no inaccurate information floating. If a lawyer’s ad states that no fee will be charged in the absence of recovery, it must still disclose that the client will be liable for other costs.

Finally, information about the office location and all lawyers who will perform the services that are offered on the web page must be included. The point of this requirement is to ensure that ads do not mislead clients about where the lawyer practices. This is very important with the Internet because some lawyers could be fishing for clients, with their sole intent to secure a referral fee.

These are the primary rules that lawyers should be concerned with when developing a web page. Other rules, such as Rule 5.5 Unauthorized Practice of Law, may be implicated but lawyers need not be any more concerned about them than usual just because they are on the web. Lawyers should always inquire as to whether they are able to give advice by asking questions that allow them to determine what state laws will apply.

The internet can aid in creating client base for lawyers and at the same time bring more information than a simple thirty-second ad or a six-column-inch ad in a magazine or newspaper.

The Internet presents some challenges with the interpretation of prior rules for advertising but should be embraced as a new tool that clients and lawyers can use to the advantage of both.

It is important that the Bar develop more guidance in this area so that attorneys know how to proceed when setting up their web sites or participating in a Web site. The Pennsylvania Bar Association does not currently have a Web design firm that will advise members on the development of a site.³⁹ It is also important to guide lawyers in the legal and ethical issues and how they may be avoided.

The current practices also bring up issues of jurisdiction, which this paper has not addressed. Perhaps the problem of jurisdiction causes problems with enforcement and in turn a desire to not enforce rules that cannot be equally enforced against everyone.

Regardless of all these issues the web should be regarded as a valuable tool that lawyers should utilize. Its use can benefit both lawyers and potential clients.