Memphis Bar Association -
November 21, 1997
Ethics, E-mail, and the Internet
Can E-mail and the Internet Get You Into Ethical Hot Water?
http://www.visalaw.com/memphis/
GSiskind@visalaw.com
I. Introduction
Who Am I?
Siskind, Susser,
Haas & Chang
Author of THE LAWYER'S GUIDE TO MARKETING ON THE INTERNET
Member ofABA LPM Working Group on Internet
Ethics
Good Jumping Off Points
Legalethics.com - the definitive Internet ethics site
Proposed Tennessee Ethics Rules - Hot off the press
NetLawTools - Jerry Lawson's lawyers' Internet resource center
The Internet Legal Practice Newsletter - has a monthly ethics feature
Internet Lawyer - monthly newsletter
legal.online - another monthly newsletter
The Lawyer's Guide to Marketing on the Internet, Chapter 16 - online companion page to my book's ethics chapter
Tennessee Commission on Continuing Legal Education and Specialization
I. Attorney Client Relationships: Where to Draw the Line (1:30 - 2:15)
THE RULES
A. DR 4-101(A) - "Confidence" refers to information protected by the attorney-client privilege under applicable law.
B. DR 4-101(B) - A lawyer may not knowingly reveal a confidence or secret.
C. DR 4-101(C) - A lawyer may reveal confidences or secrets with the consent of the client, but only after full disclosure
D. DR 4-101(D) - A lawyer shall exercise reasonable care to prevent employees, associates and others whose services are utilized by the lawyer from disclosing or using confidences or secrets of a client, except that a lawyer may reveal information allowed by DR 4-101(C) through an employee.
SCENARIOS WHERE CLIENT CONFIDENTIALITY ISSUES ARISE
A. E-Mail questions from potential clients
1. Tennessee Advisory Ethics Opinion 95-A-576 - When a person contacts a lawyer via e-mail and "the inquiry and/or advice is specific and personal a relationship between the attorney and the inquirer may be created. In such cases the attroney must be mindful of DR 4-101 (Preservation of Confidences and Secrets), DR 5-105 (Conflicts of Interests), etc...In summary a responding attorney should treat this computer response as if the inquirer were meeting the attorney personally for a consultation, before the attorney is formally retained."
2. Disclaimers - Do they work?
Signature Block
Disclaimer: Absent a signed retainer agreement, this message is not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk. Tennessee has not certified immigration law for specialization.
3. Conflicts of Interest - incorporate e-mail correspondence into conflict checking system.
4. Useful articles
Client Confidentiality: A Lawyer's Duties with Regard to Internet E-Mail Client Confidentiality: A Lawyer's Duties with Regard to Internet E-Mail, by Robert L. Jones
E-Mail and the Attorney-Client Privilege by Arthur Smith
E-mail: How Attorneys Are Changing the Way They Communicate, by Susan B. Ross
C. Web sites
1. Same issues arise as e-mail if there are e-mail links or feedback/consultation forms
2. Public discussion forums on web sites
D. Chat rooms - likely to be compared to radio call-in shows (beware of solicitation issues)
II. Do Existing Unauthorized Practice of Law Rules Make Sense in Cyberspace? (2:15 - 2:30)
A. There are no geographic boundaries
B. Advertising discipline v. UPL - if lawyer licensed in state, advertising rules kick in; if no attorney in firm licensed in state and firm is marketing its services in state, UPL rules may be issued.
C. Are web sites comparable to out of town newspapers available on local newsstands?
D. Which states' rules govern?
1. States in which members of the firm are admitted to practice
2. States in which the firm is seeking clients
3. States in which the firm in facts practices
E. Disclaimers
III. Does Your Obligation to Research Now Include Internet Sources? (2:30 - 2:45)
IV. Internet Lawyer Directories and Lawyer Referrals (2:45 - 3:00)
A. Directories
TN Ethics opinion
Advertising rules v. Martindale Hubbell analogy
The Rules
Referrals - DR 3-102(A) A lawyer or law firm shall not share legal fees with a non-lawyer.
V. Security Issues Posed by E-Mail and the ‘Net (3:15 - 3:50)
The risk: Is attorney client privilege waived when when information between the attorney and client is obtained by a third person over the Internet either inadvertently, or through illegal means?
1. What are the risks?
How does e-mail compare to phones, faxes, cellulars and cordless phones?
Attorneys Liability Assurance Society (ALAS) does not consider failure to encrypt to waive privilege nor create ethical or liability exposure. ALAS notes that after 9,000 claims, not one has even been involved in any situation where a 3rd party intentionally intercepted a law firm's communications, whether by e-mail, stealing regular mail, intercepting faxes, tapping phones, or "hacking a computer message"
2. No case where an attorney was held liable for sending unencrypted e-mail.
a. A military court recognized an expectation of privacy in the use of e-mail
b. South Carolina - must use encryption unless the client waives (after full disclosure of potential risk)
c. North Carolina - use same precautions as cellular phones
d. But note that courts have found that there is no reasonable expectation of confidentiality when using cellular or cordless phones (though many ethics committees now hold that because such interceptions are a crime, even these forms of communications are protected)
3. ALAS, "[t]o identify one of the relevant computers over which an e-mail message will pass and then locate, isolate, and capture a particular message would take a substantial investment in time and money -- not to mention personnel who are both technically proficient and willing to violate the law." USC Title 18 criminalizes the interception of Internet communications including e-mail..
4. PGP - Will it catch on?
5. Developing a common sense approach
a. Use encryption or don't use e-mail at all for very sensitive communications
The South Carolina/Vermont/Illinois approach - lawyers may use e-mail without encryption to communicate with clients, except for highly sensitive information that should not even be discussed over the telephone
b. Add e-mail security into a firm's overall security program (including dial-up network access, changing passwords regularly, logout procedures)
6. Useful links
Professional Responsibility and Confidentiality Considerations When Using the Internet by Mary Frances Lapidus
ALAS Loss Prevention Journal: Internet Communications, Part II, A Larger Perspective Internet Communications, Part II, A Larger Prespective by William Freivogel
VI. Internet Use Policies for Law Firms (3:50 - 4:00)
A. What issues relating to ethics need to be covered?
1. Compliance monitoring - set policies and procedures to ensure that one or more firm partners monitor compliance with ethics rules; make sure the person is Internet savvy
2. Prompt communication - be sure attorneys check e-mail frequently or don't give them e-mail; if attorney is on holiday or does not check regularly, put procedures in place to be sure mail is checked
3. Attorney client relationships - if e-mail communications could trigger attorney client relationships, have policy to check conflicts of interest and make sure appropriate disclaimers on in an e-mail message; set standard disclaimers for lawyers
4. Multi-jurisdiction issues - know where your lawyers are licensed and be sure to deal with advertising and UPL restrictions
5. UPL - set forth policy dealing with direct contacts with out of state individuals
6. Retention - policy should outline e-mail and web site storage and destruction procedures
7. Encryption - train attorneys in the use of encryption software and educate regarding types of communications to avoid sending via e-mail.
Useful articles
Ethical Considerations for Internet Use Policies, by Peter Krakaur
VII. Marketing and Solicitation in the Wake of the Canter Disbarment (4:00 - 4:45)
Issue #1 - Solicitation
A. Is posting an advertisement on a newsgroup inappropriate solicitation?
1. TN 95-A-5-70
B. Is sending an e-mail advertisement to a non-client an advertisement?
C. Is responding to an e-mail inquiry or a newsgroup inquiry inappropriate solicitation?
D. Is a web site in appropriate solicitation?
1. TN 95-A-5 70
E. When is participating in a chat room session inappropriate solicitation?
Issue #2 - Is a web site an advertisement?
Issue #3 - If a web site is an advertisement, what disclaimers and restrictions must be met?
Web Site Ethics Checklist
1. Assume that the site is an ad
2. Include disclaimers (this is an advertisement; specialization, etc.)
3. Don't put anything on that can be construed as misleading
4. Identify geographic office locations and bar admissions
5. Submit web site printouts or use auto notification system
6. Be careful of establishing links with non-law firm sites where the linked entity may be engaging in the practice of law (use disclaimers)
7. State the name of the attorney responsible for the web site
8. Establish a lawyer to review site for ethics
Issue #4 - Unauthorized Practice of Law
Issue #5 - What type of publicity for my web site is permitted?
A. Banner ads?
B. Directory listings?
C. Offline promotion?
Useful Articles
The Ethical Boundaries of Selling Legal Services in Cyberspace, by William E. Hornsby, Jr.
How Do Advertising Rules Apply to Lawyers on the 'Net? by Joan C. Rogers
Spamming Lawyer Disbarred, by Ashley Craddock, is an article that appeared in Wired N