Attorneys on the 'Net
Jurisdiction
The Internet is a world-wide medium, and it knows no jurisdictional boundaries. It is difficult to limit access to one's web site to those viewers in a particular geographic area, because the technical implementation of the Internet does not take geographic location into account. Thus, the issue of which states or nations can assert personal jurisdiction over an attorney as a result of his web site is an important consideration in not only the in the design and layout of that web site, but also in the decision as to whether to even have a web site in the first place.
It goes without saying that the attorney is subject to personal jurisdiction in the jurisdiction where he or she is physically practicing law, since such an attorney would be subject to general jurisdiction. See Kulko v. Superior Court, 436 U.S. 84, 91, 100-01 (1978). But the difficulty comes in situations where the attorney may be considered practicing law in a jurisdiction where he is not physically present, because of activity over the Internet. Such an attorney would probably be subject to personal jurisdiction under the minimum contacts theory. See International Shoe v. Washington, 326 U.S. 310, 316 (1945). Thus, it is important to determine exactly what is the practice of law on the Internet would be.
Practice of Law
In general, an attorney is prohibited from practicing law outside of the jurisdiction in which he or she is licensed. Thus, if the attorney's use of a web site is perceived as the practice of law, then the attorney becomes liable for practicing law outside of his jurisdiction, since his site can be accessed and used by anybody with Internet access anywhere in the world. Therefore, it is important that an attorney set up his web site such that it is not viewed as an unauthorized practice of law, to avoid the "minimum contacts" that may subject that attorney to personal jurisdiction outside of the jurisdictions where he wishes to practice.
The "attorney-client relationship may be predicated on casually rendered advice." Joan C. Rogers, Malpractice Concerns Cloud E-Mail, On-Line Advice, ABA/BNA Lawyers Manual on Professional Conduct, March 6, 1996. The attorney should avoid putting any information on his web site that can be seen as giving legal advice. Providing general information about the attorney's law practice is probably safe, but the attorney should not make legal advice available to the general public. If the attorney wants to provide legal advice via the Internet, the attorney should limit such advice to his or her clients, using either e-mail or a secure, password protected portion of his web site to do so.
The attorney may also use disclaimers to assure visitors that he is not disseminating legal advice, and not practicing law by such casual contacts. A disclaimer should appear on each page of the web site, and clearly inform the visitor that no attorney/client relationship is implied by the web site. It is suggested that if an attorney wants to provide a general forum for questions and answers about legal issues, that the attorney restrict access to such a forum to his or her clients. The use of a disclaimer is also suggested as a general practice, even if restricted to one's own clients. See our discussion on the use of disclaimers.
For additional analysis on how Internet activity can be construed as the practice of law, see Lori Christman, Keith Porterfield, and Brandon Unterreiner, Ethical Considerations of Legal Netvertising Netethics. And for a discussion of legal malpractice on the Internet, see Natacha D. Steimer, Note, Cyberlaw: Legal Malpractice in the Age of Online Lawyers, 63 Geo. Wash. L.Rev. 332 (1995).
State Jurisdictional Actions
Most states adhere to the minimum contacts requirements of the line of specific jurisdictional cases decided by the Supreme Court. International Shoe, 326 U.S. 310, set the groundwork for the theory when it required that "maintenance of the suit [should] not offend 'traditional notions of fair play and substantial justice,'" id. at 316. World Wide Volkswagan Corp. v. Woodson, 444 U.S. 286 (1980) set out specific rules to determine when minimum contacts exist. The Supreme Court determined that there are five factors to consider whether the exercise of jurisdiction is reasonable and fair:
The burden on the Defendant
The forum State's interest
The plaintiff's interest
Efficient resolution of controversy
The furtherance of fundamental substantive social policies
Id. at 292. Most courts have concluded that, at least for passive sites, a web site alone is insufficient to establish personal jurisdiction. See e.g., Bensusan Restaurant Corp. v. King, 937 F.Supp. 295 (S.D.N.Y. 1997, aff'd, 126 F.3d 25 (2d Cir. 1997); Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414 (9th Cir. 1997); The Hearst Corp. v. Goldberger, 1997 WL 97097 (S.D.N.Y. Feb. 26, 1997); McDonough v. Fallon McEligott Inc., 1996 WL 753991 (S.D. Cal. Aug. 5, 1996); Weber v. Jolly Hotels, 977 F.Supp. 327 (D.N.J. 1997).
Some courts consider the elements under traditional minimum contacts jurisdictional analysis. See e.g., Zippo Mfg. Co., v. Zippo Dot Com, Inc., 952 F.Supp. 1119, 1124 (W.D. Pa. 1997) ("the likelihood that personal jurisdiction can be constitutionally exercised is directly proportionate to the nature and quality of commercial activity that an entity conducts over the Internet. This sliding scale is consistent with well developed personal jurisdiction principles.").
A state is even more likely to assert personal jurisdiction if the web site is interactive under the traditional minimum contacts test, since interactivity increases the contacts with residents of the forum state. See, e.g., Maritz, Inc. v. Cybergold, Inc., 947 F.Supp. 1328 (E.D. Mo. 1996).
Certainly, any activities that can be considered conducting business on the Internet increases the actual contacts achieved, and thus runs the risk of meeting the minimum contacts test. See, e.g., CompuServe, Inc. v. Patterson, 89 F.3d 1257 (6th Cir. 1996).
Finally, some states have presumed personal jurisdiction just on the basis that a web site can be viewed by citizens in their state. Minnesota, for example, asserts personal jurisdiction if any citizen can access the web site. State of Minnesota v. Granite Gate Resorts, Inc., 568 N.W.2d 715 (Minn. Ct. App. 1997). See also the Minnesota Attorney General Memo on this subject. Connecticut has ruled the same way. See Inset Systems, Inc. v. Instruction Set, Inc., 937 F.Supp. 161 (D. Conn. 1996). Florida also has one of the strictest standards, regulating all Web pages intended for broadcast or dissemination within the state. See Forida Rule of Professional Conduct 4-7.2(a). See also Florida's Law Practice Regulation Web site.
Peter Krakaur, Internet Advertising: States of Disarray?, N.Y. Law. Journal (Sept. 15, 1997), discusses the problems among the various states, and gives some examples and case history. For a more detailed examination of Internet jurisdiction, see Gwenn M. Kalow, Note, From the Internet to Court: Exercising Jurisdiction over Word Wide Web Communications, 65 Fordham L.Rev. 2241, 2249 (1997). For additional information on Jurisdiction and Commerce on the Internet, see Bradley A. Slutsky, Jurisdiction Over Commerce On The Internet (June 6, 1997)
Protection
It is difficult for an attorney who wants to have a web site to protect himself against those states that subscribe to the theory that the very existence of a web site subjects the attorney to personal jurisdiction. However, it seems unlikely that these rulings will withstand scrutiny from the Supreme Court. It is against the spirit of the specific jurisdiction cases (see above) that the mere existence of a web site, with nothing more, could subject a person to personal jurisdiction wherever that site can be viewed (which is everywhere the 'net reaches). Rather, it would seem that the Supreme Court would require something more to establish minimum contacts. Even if the Supreme Court would not so find, Congress could hardly let such a situation stand, as that would greatly reduce the utility of the Internet and greatly increase the risks of using that medium.
It is of little comfort, however, to say that eventually the situation will become safe for attorney web sites, if an attorney wishes to set one up now. Thus, to protect oneself, the attorney should be sure to include disclaimers on each and every page, declaring to the world that he is not setting up contacts with any state but the ones in which he chooses to do business. In addition, any business activities done on his site should be in password protected areas of the site, and the areas of the site open to public access should remain passive.
Therefore, we will consider ethics concerns and also specific steps that an attorney can take to protect himself to the maximum extend possible, given today's technology. However, the attorney must also look forward to the day when this jurisdictional dilemma is finally settled by the courts, or by Congress.
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This page developed by Robert F. Bodi
for a Cyberlaw class at The
University of Akron - School
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