Attorneys on the 'Net
An Analogy
For the purposes of this presentation, it will be assumed that any attorney who has a Web Site on the Internet is engaged in the practice of advertising. Although it may be possible to set up a Web Site such that it is not construed as an advertisement, such a construction would defeat one of the major advantages of having a Web Site in the first place, which is to solicit new clients. Some states have taken the position that web sites are advertisements per se. See, e.g., Pa. Comm. on Legal Ethics and Professional Responsibility, Informal Op. 96-17 (1996), 1996 WL 928126. Therefore, it is safest and more practical to assume that an attorney's web site will be considered an advertisement.
The ABA's Model Rules of Professional Conduct, Rule 7.2, permits lawyers to advertise in ways not involving direct participation. See J.T. Westermeier and Leonard T. Nuara, Ethical Issues for Lawyers on the Internet and the World Wide Web, 1003 PLI/Corp 145, 152-53. This would imply that Internet advertising is permissible, although no direct rule addresses that particular medium. Id.
In order to determine what government regulation of Internet Advertising is foreseeable (and will stand up in court), we need to determine where this new medium fits with respect to the traditional forms of commercial advertising. This is difficult to accomplish, because of the complex nature of the Internet, and because the Internet is really a collection of distinct, but related, set of tools, each with its own capabilities and risks. We will examine e-mail and the World Wide Web, becuase these are the Internet tools most likely to be useful to attorneys.
The use of e-mail by attorneys is most analogous to a amalgam of written communication and telephone conversation. The medium is similar to sending traditional mail because it is based on the written word, is sent to the recipients "e-mail mail box," and it can be printed on a printer for a permanent hard copy. It can also contain an electronic signature, verifying its source.
However, because e-mail communication can be nearly instantaneous, it is also similar to a telephone conversation. True, it is dissimilar in the sense that only one party can "speak" at a time, thus it is even more similar in that respect to traditional radio communications where each party must speak in turn. However, unlike radio, there is some modicum of privacy expectation when e-mail is used, as in a telephone conversation. Radio transmission can be received by anybody with a receiver in the geographic range of the transmitter. Yet, with both e-mail and the telephone, it is technically possible, though difficult, for a third party to intercept a conversation. However, e-mail travels through, and is copied by, many computers, most owned by private individuals. The transmission path is unpredictable and random, in contrast to the telephone system which is predictable and owned by private, but publicly regulated, entities. Thus, e-mail opens itself up to a possible greater potential of private interception than does telephone conversations. Yet, the shear volume of e-mail transmitted via the Internet makes it difficult to intercept particular messages, thus creating privacy amongst the crowd, increasing the confidence that e-mail will not be intercepted. (Note that analog cellular phones are as easily intercepted as radio transmissions, which is exactly what they are. The attorney should consider non-encrypted, analog cellular transmissions as patently non-confidential for all purposes!)
Because intercepting telephone conversations is generally prohibited by law without a warrant, attorney's can generally rely on an assumption of confidentiality when they communicate with a client via the telephone. Likewise, e-mail interception is protected by law, and an attorney should be able to rely on the confidentiality of that medium as well. See e.g., Brian Cummings, Lawyer-Client E-Mail Same as Phone Call: Ethics Opinion, 1003 PLI/Corp 141, 143 (1997).
For example, the Illinois State Bar Association Committee on Professional Conduct has issued an advisory opinion concluding that lawyers who communicate with their clients via standard e-mail do not compromise their duty to protect confidential client information any more than they would by utilizing the telephone. This opinion can be found on the Internet.
However, this opinion is at odds with the opinions of at least two other states, according to Cummings, id. There, he identifies Iowa and South Carolina as states that advise lawyers not to consider e-mail as confidential, unless it has been encrypted. Id. It is likely that some other states will also require encryption for sensitive communications as they develop Internet regulations.
Because the danger of e-mail communication interception is not well understood, because state ethics laws are in a state of flux, and because the public in general may not believe that communication via e-mail is secure, it makes sense for an attorney to encrypt sensitive information just to be safe (only that material deemed confidential should need encryption). Encrypting e-mail communications is not a difficult process, and there are many tools available to provide this capability. Most commercial e-mail packages provide for some form of encryption, and there are many third party packages available. For example, visit the Pretty Good Privacy web site for more information about just such a tool. Professional responsibility and confidentiality considerations can be found at Mary Frances Lapidus, Professional Responsibility and Confidentiality Considerations When Using the Internet.
There are additional concerns about the use of e-mail that are covered later in this presentation. For example, does putting an e-mail link within an attorney's web site mean that that attorney is actively soliciting any user of that link as a client? This exposes the attorney to jurisdictional concerns as well. Another concern is whether answering questions via e-mail is considered the practice of law. The use of disclaimers and careful practice can protect attorneys from the negative consequences of such.
For additional information about the use of e-mail for privileged information, see Bert L. Slonim, E-Mail and Privileged Communications What Are the Security Concerns? The New York Law Journal November 24, 1997.
Web Sites
Because of the flexibility of a web page and its potential use of multi-media, attorney use of web sites is a much more difficult situation to analyze. A web site can be passive or interactive, textual or graphical, animated or static, silent or auditory, or any combination of these things. Thus, a web site can be analogous to any of the traditional forms of commercial advertising, including television or even personal solicitation. This raises the specter of intensive state regulation or even outright prohibition because of the Internet's potential for abuse by unscrupulous attorneys.
Web sites should be classified, at a minimum, between passive and interactive web sites. A passive web site is one that provides only information to the viewer. However, if the viewer has the ability to ask questions, post information, or if the web site has links to e-mail so that the viewer can send an e-mail to the attorney, then the web site is considered interactive. This distinction is important in the jurisdictional discussion that follows.
Also, because the typical Web Site can be viewed in every state, and even across the globe, the possibility of any state or nation asserting jurisdiction over such a site, and thus applying their own ethical and regulatory rules to that site, is a danger that must be examined. This presentation will look at these dangers individually, and make suggestions on how an attorney can overcome these obstacles and thus put the Internet to work for him. But first, we will examine the unsettled issue of when a state or nation can assert jurisdiction over an attorney who has a web site.
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