Ethics Opinion 316
Lawyers’ Participation in Chat Room Communications With Internet Users Seeking Legal Information
It is permissible for lawyers to take part in on-line chat rooms and similar arrangements through which attorneys engage in back-and-forth communications, in “real time” or nearly real time, with Internet users seeking legal information, provided they comply with all applicable rules of professional conduct. To avoid formation of attorney-client relationships through such chat room conversations, lawyers should avoid giving specific legal advice. If a lawyer subject to the D.C. Rules of Professional Conduct engages in chat room communications of sufficient particularity and specificity to give rise to an attorney-client relationship under the substantive law of a state with jurisdiction to regulate the communication, that lawyer must comply with the full array of D.C. Rules governing attorney-client relationships.
- Rule 1.1 (Competence)
- Rule 1.2 (Scope of Representation)
- Rule 1.3 (Diligence and Zeal)
- Rule 1.4 (Communication)
- Rule 1.6 (Confidentiality)
- Rules 1.7, 1.9 (Rules on Conflict of Interest)
- Rule 7.1 (Communications Concerning a Lawyer’s Services)
We have recently addressed a number of issues related to attorneys’ participation in the cyberspace communications revolution.1 We write here to consider an issue left unaddressed by these earlier opinions—namely, the permissibility of lawyers’ participation in on-line “chat rooms," “list servs,” and similar arrangements through which lawyers engage in interactive communications, in “real time” or nearly real time, with Internet users seeking legal information.2
Prior to drafting this opinion, one committee member undertook an informal survey of web sites offering chat rooms on law-related topics. A sampling of such sites revealed a wide array of services offering “one-on-one” communications with “licensed attorneys,” many with catchy names such as “Free Advice” and “Dads’ Divorce.” These communications were sometimes free, but some services charged users a fee.3 Many provided a multitude of law-related services, including not only live attorney chat rooms, but also attorney directories, treatises and legal reports, and links to other law-related information sources. Our analysis here solely concerns lawyers’ participation in the features of these sites that offer visitors interactive communications with licensed attorneys on legal topics.4
Every chat room we visited displayed prominent disclaimers, often as a “click through” page to which visitors must indicate consent before proceeding, along the following lines:
Please note . . . this chat room is for informational purposes only and is not intended to be used as specific legal advice in any way, shape or form. Participating in this chat room does not establish an attorney client relationship—for personal legal advice consult your attorney.
Such notices also typically disclaimed all warranties as to the quality and accuracy of the legal information provided and purported to disavow the service provider’s liability for all harm arising from use of the service. Most chat room services we visited further disclaimed any duty to keep information provided by participants confidential, though one, devoted to immigration law, promised to make its best efforts to protect from third parties information transmitted by participants. All the sites we visited emphasized that their purpose was to provide “legal information,” but not “legal advice.”
Whether and how participating attorneys are permitted to follow up with Internet users with whom they engage in such communications appeared to vary. One site stated that the lawyer “does NOT receive any portion of your fee, and will NOT serve as your legal counsel, during LiveChat or thereafter, so you can get a completely candid evaluation.” At other sites, however, the attorneys answering questions in chat rooms prominently provided their full contact information at the opening of the chat session and invited chat room participants to contact them directly after the chat session ended.5
We did not systematically monitor the communications that were taking place in chat rooms we located, nor did we “test” any site by submitting an inquiry from an individual. Nevertheless, we did read various conversations taking place in chat rooms that were open to the public without charge. Here is one randomly selected exchange that took place in one public chat room:
Q: I am in the US on a visa waiver from UK [that] expires on 8th Sept. I have been told by an abusive husband not to return. I am therefore homeless—he has told immigration officials about me—they told him that I won’t be allowed to re enter the States. This is the only place I have a home!!!!!! Please help? . . .
A. Based upon the statements you made, it appears that you are in-status and your visa expires on September 8, 2001. It is difficult to change status from the visa waiver. Additionally you might want to apply for a nonimmigrant visa, such as a student (“F”) visa. You will probably be required to leave the United States to obtain it. If you have no interest in education you might want to apply for a nonimmigrant work visa. Without knowing more about your background, I do not know if you are eligible for any work visas…. If you know of a specific visa for which you want to apply. Or if you would like to discuss this with me. I offer a 10 minute free telephone consultation. XXX-XXX-XXXX is my direct line.
Because our rules do not draw a sharp distinction between in-person and written solicitations,7 we need not decide a question that has been central to many legal ethics committees’ opinions—namely, whether chat room communications should be analogized to the types of “in person” solicitation prohibited in their states.8 Instead, under our Rules we think it best to regard chat room communications as having some qualities that are similar to in-person communications and some that are different. The potentially greater immediacy of “real time” communications in chat rooms, as opposed to other forms of written communications, may give rise to concerns similar to those about “in person solicitation in circumstances or through means that are not conducive to intelligent, rational decisions,” D.C. Rule 7.1, comment . Lawyers communicating about their services in chat rooms therefore must take care not to run afoul of D.C. Rule 7.1(b)(2), which prohibits solicitations that involve the “use of undue influence,” and D.C. Rule 7.1(b)(3), which prohibits lawyers from seeking employment by a potential client whose “physical or mental condition” makes rational judgment “about the selection of an attorney unlikely."9 On the other hand, attorney communications with potential clients in chat rooms are probably less potentially coercive than face-to-face communications. As one state bar ethics committee observed, a potential client solicited through a cyberspace communication, even in real time, has the option of simply “not responding."10
We reiterate, furthermore, as we emphasized in Opinion 302, that one of the most distinctive characteristics of cyberspace communications—their reach far beyond the bounds of any particular jurisdiction—raises significant issues for practitioners about the applicability of the laws of multiple jurisdictions. Consistent with our mandate, we here consider the applicability of the D.C. Rules of Professional Conduct only, but we caution readers that other jurisdictions’ rules may apply as well.
Lawyers’ participation in chat rooms may implicate competing ethical values. On the one hand, lawyers’ duties to inform the public about the law are well recognized. ABA Model Code EC 2-2 provided that the “legal profession should assist lay persons to recognize legal problems” and that lawyers should therefore “encourage and participate in educational and public relation programs concerning our legal system,” and states whose ethics rules are based on the Model Code continue to have such provisions in their ethics codes. See, e.g., N.Y. Code of Prof. Resp. EC 2-2. Although the D.C. Rules of Professional Conduct do not contain a provision equivalent to EC 2-2, there is every reason to believe, consistent with the traditions of the profession, that these ethical duties to contribute to making legal information available to the public continue to hold strong here. Cf. D.C. Rule 6.1 comments  &  (noting that D.C. Rule 6.1 was intended to carry forward long-standing ethical principles in the Code, especially Canon 2).
On the other hand, the ethical impetus that motivates lawyers to help the public become aware of legal problems cannot insulate lawyers from the consequences arising from formation of an attorney-client relationship as the result of providing legal advice. The question of precisely what conduct gives rise to an attorney-client relationship is one of substantive law in the relevant jurisdiction(s). Because the issue under discussion turns on that question, a review of the basic principles concerning the formation of attorney-client relationships is in order here. Most courts agree, for example, that neither a retainer nor a formal agreement is required to establish an attorney-client relationship. See, e.g., Kurtenbach v. TeKippe, 260 N.W.2d 53, 56 (Iowa 1977); see also In re Lieber, 442 A.2d 153 (D.C. 1982) (attorney-client relationship formed where attorney failed to indicate lack of consent to accept court-appointed client after receiving notification of appointment by mail). In Kurtenbach, the court looked to (1) whether the putative client had sought advice from the lawyer, (2) whether the advice sought was within the lawyer’s field of competence, and (3) whether the lawyer, either directly or implicitly, agreed to give the requested advice. Kurtenbach, 260 N.W.2d at 56. Many courts look to the reasonable expectations and reliance of the putative client. See, e.g., In re Lieber, 442 A.2d at 156. Under this approach, even casually rendered advice may be found to give rise to an attorney-client relationship where the putative client relies on it. See, e.g., Togstad v. Vesely, Otto, Miller & Keffe, 291 N.W.2d 686 (Minn. 1980) (attorney-client relationship created where attorney stated that he did not think a prospective client had a cause of action but would discuss it with his partner, did not call client back, and client relied on attorney’s assessment and did not continue to seek legal representation).In light of these general principles, lawyers seeking to avoid formation of attorney-client relationships through chat room conversations would be well advised to avoid providing legal advice in such communications.14 The relevant distinction is that between legal advice and legal information. Providing legal information involves discussion of legal principles, trends, and considerations—the kind of information one might give in a speech or newspaper article, for example. Providing legal advice, on the other hand, involves offering recommendations tailored to the unique facts of a particular person’s circumstances. Thus, in discussing legal information, lawyers should be careful to emphasize that it is intended as general information only, which may or may not be applicable to an individual’s specific situation. Legal ethics committees in jurisdictions where EC 2-2 is still in effect have advised precisely this approach. In New York City Ethics Op. 1998-2 (1998), for example, the committee suggested that:
A lawyer who writes or speaks for the purpose of educating members of the public to recognize their legal problems should carefully refrain from giving or appearing to give a general solution applicable to all apparently similar individual problems since slight changes in fact situations may require a material variance in the applicable advice; otherwise, the public may be misled and misadvised. Talks and writing by lawyers for non-lawyers should caution them not to attempt to solve individual problems upon the basis of the information contained therein.Likewise, in Ohio Sup. Ct. Bd. of Comm’rs on Grievances and Discipl., Op. 94-13 (1994), the committee concluded that in giving legal seminars, “it would be prudent for the lawyer to advise the attendees that the lawyer’s discussion in regard to questions will be general and not intended as individual advice for specific problems,” and that “it may be helpful for the attorney to remind the attendees not to divulge confidential information.” The committee further warned that, in taking part in radio talk shows, “particular caution is warranted,” because the format often invites listeners to ask questions. The lawyer “must be extremely careful not to impart individual advice.” (Citations omitted). The fact that lawyers may now be providing the public with legal information through Internet communications rather than more traditional fora such as public lectures or talk shows does not alter this fundamental analysis.
Consistent with that analysis, lawyers wishing to avoid formation of attorney-client relationships through chat room or similar Internet communications should limit themselves to providing legal information, and should not seek to elicit or respond to the specifics of particular individuals’ situations. Lawyers could, for example, explain general principles or trends in the law, or lay out the majority and minority viewpoints and/or the range of variation on particular legal issues across jurisdictions, or even describe a particular jurisdiction’s law. But lawyers should advise information seekers to obtain legal counsel to determine what law would be applicable to their unique circumstances. Likewise, lawyers participating in chat room exchanges could explain the approaches to certain legal problems lawyers typically consider, but should not purport to advise inquirers as to what to do in their specific situations. Where a communication is lengthy or otherwise might leave room for misunderstanding, lawyers should remind inquirers that the chat room communication is not a substitute for specific legal advice, and that the lawyer is providing general legal information only.
To illustrate, we will use the example we gave above of one chat room conversation we encountered. The lawyer in that case might have been better advised to respond to the inquirer’s query along the following lines:
Generally, persons who are in the U.S. on non-expired visa waivers are in status. Such persons, however, may often find it difficult to change status from a visa waiver. They might try to apply for a non-immigrant visa, such as a student visa, but they would probably be required to leave the United States to obtain such a visa. Another possibility some persons in this situation explore is to apply for a non-immigrant work visa. I cannot give you legal advice on your particular situation, but if you would like to discuss your specific case with me, you may call me for a consultation. . . .Such wording makes it more clear that the lawyer is not purporting to give legal advice than did the repeated “you should…” statements contained in the attorney’s response quoted earlier in this opinion.
Thus, before undertaking the kind of communication that would give rise to an attorney-client relationship as determined by applicable substantive law, the attorney must, in our view, ensure that the formation of that relationship does not give rise to impermissible conflicts under D.C. Rules 1.7, 1.8, 1.9, and 1.11. The attorney must also safeguard the secrets and confidences of that client under Rule 1.6.17 This may be true even if an attorney-client relationship has not formed but the lawyer is in a situation in which he or she properly should regard an advice seeker as a prospective client, as might be especially likely to arise in settings in which lawyers are permitted to solicit or follow up with chat room visitors. See D.C. Rule 1.10(a) comments -; see generally Restatement (Third) of the Law Governing Lawyers § 15(1)(a) (2000) (lawyer owes duties to prospective clients to protect confidential information). Accordingly, even if a communication begins as a public communication in a chat room or similar exchange service, the attorney may be required at some point to reserve his or her communications for the eyes of a particular advice seeker only. And the attorney must always take care in cyberspace, as in face-to-face communications, that information he or she receives through on-line communications does not end up creating conflict of interest problems with respect to existing clients.18 Likewise, the attorney must ensure that such requirements as that of competence under D.C. Rule 1.1, diligence and zeal under Rule 1.3, and adequate communication under Rule 1.4 are met.
Advocates of the provision of low-cost legal advice through on-line chat rooms and similar innovative services make the important point that these services offer great potential for providing low-cost legal services to low and moderate income persons. See generally “Conference on the Delivery of Legal Services to Low-Income Persons: Professional and Ethical Issues,” 67 Fordham L. Rev. 1751 (1999); “Symposium: Lawyering for the Middle Class,” 70 Fordham L. Rev. 623 (2001) (discussing need for innovation in legal services delivery mechanisms for both low and middle income clients). We do not dispute this observation or the spirit of concern and experimentation with which it is made. Indeed, many believe that devising better, lower cost ways of providing quality legal services to low and moderate income populations is one of the legal profession’s most pressing problems. A number of proposals are being considered along these lines, including the possibility of allowing limited-purpose attorney-client relationships that might “unbundle” or disaggregate some of the responsibilities and duties traditionally required of lawyers. In its proposed Model Rule of Professional Conduct 1.2, for example, the ABA Ethics 2000 Commission stated that “a lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances,"19 a change the Commission’s reporter explains is intended in part “to provide a framework within which lawyers may expand access to legal services by providing limited but nonetheless valuable legal service to low or moderate-income persons who otherwise would be unable to obtain counsel."
Reforms that would alter the traditional duties and obligations lawyers owe clients, however, are not encompassed within the D.C. Rules of Professional Conduct currently in effect. Such reforms will have to await the attention of the D.C. Court of Appeals. As our rules currently stand, the full panoply of ethical considerations, including conflict avoidance, confidentiality, competence and the like, attach to all attorney-client relationships, including those that may be formed inadvertently through attorney communications with persons seeking legal information over the Internet.
1. In Opinion 281, we concluded that lawyers may send confidential client information through unencrypted electronic mail, except where special circumstances warrant a higher level of care about preserving a communication’s confidentiality. In Opinion 302, we decided that lawyers may use web sites to advertise for plaintiffs for class action lawsuits, provided that they comply with all of our ethical requirements as to truthfulness and other matters, and offered some tentative “best practices” guidance as to how lawyers might want to structure e-mail communications with potential clients. Id. We also concluded in Opinion 302 that lawyers may use web sites that offer opportunities to bid competitively on legal projects posted by prospective clients, again provided the lawyers comply with all applicable rules of professional conduct. Id.
2. In chat rooms, individuals’ typed communications appear in “real time”—i.e., as they are being typed—on the computer screens of other participants. On list servs, individuals’ communications are sent to a central e-mail address, which then re-distributes the communications to all subscribers’ e-mail addresses.
3. One multi-purpose site, for example, offered “real time, one-on-one chats with” a member of its “staff of licensed attorneys,” for either $15 for a “single chat of up to 30 minutes,” or an annual subscription rate of $30. Another charged $10 for a one-week subscription “that enables you to ask the lawyer a question, one-on-one, and to receive back an immediate response.”
4. One site, for example, displayed a “chat calendar” listing the dates and times of scheduled chat sessions with particular attorneys, who were further identified through links to their law firm web pages which contained further biographical information.
5. We could find information about the financial terms governing attorneys’ participation in such chat rooms at only a few of the web sites we visited. One devoted to immigration law issues explained that attorneys may purchase, for $200 per year, a “Basic Membership,” consisting of a listing in an Internet attorney yellow pages, a direct web link from this directory to the attorney’s web site, and “eligibil[ity] to join our team of attorneys who conduct live chats”; or, alternatively, for $1,200 per year, a “Premium Membership,” providing all the benefits of basic membership plus access to certain case tracking software. Another stated that the lawyers responding to questions in its chat rooms were employees on its staff.
6. See, e.g., Florida Bar Standing Comm. on Advertising Op. A-00-1 (2000); Mich. State Bar Comm. on Prof. and Judicial Ethics, Op. RI-276 (1996); Utah State Bar Ass’n Ethics Op. 97-10 (1997); West Virginia Ethics Op. 98-03 (1998).
7.D.C. Rule 7.1 covers all communications concerning a lawyer’s services; the D.C. Rules do not include provisions patterned after ABA Model Rules 7.2 and 7.3, which regulate advertising and solicitation, respectively.
8. See, e.g., Florida Bar Standing Comm. on Advertising Op. A-00-1 (Florida lawyers may not solicit prospective clients through real-time conversations in Internet chat rooms under state’s restrictions on in-person solicitation); Mich. State Bar Comm. on Prof. and Judicial Ethics, Op. RI-276 (solicitation of clients through “‘real time communications’” in Internet chat rooms violates state’s restrictions on in-person and telephone solicitation).
9. See, e.g., Utah Ethics Op. 97-10 (analogizing chat room communication to in-person communication due to its “direct and confrontational nature”); Michigan State Bar Standing Comm. on Prof. and Judicial Ethics Op. RI-276 (noting “immediacy” of interactive electronic communication).
10. Arizona State Bar Ass’n Ethics Op. 97-04 (1997) (communications with potential clients in chat rooms should not be deemed a prohibited in-person contact because there is not the same degree of “confrontation and immediacy”).
11. See, e.g., New York City Ethics Op. 1998-2 (1998) (use of a “disclaimer may not necessarily serve to shield Law Firm from a claim that an attorney-client relationship was in fact established by reason of specific on-line communications”); Utah State Bar Ethics Op. 96-12 (1997) (“if legal advice is sought from an attorney, if the advice sought is pertinent to the attorney’s profession, and if the attorney gives the advice for which fees will be charged, an attorney-client relationship is created that cannot be disclaimed by the attorney giving the advice.”) (footnote and citations omitted). Indeed, a chat room visitor who is misled by a disclaimer purporting to disavow liability for legal advice might even have an argument that the disclaimer was “false and misleading” within the meaning of D.C. Rule 7.1(a).
12. See Catherine J. Lanctot, “Attorney-Client Relationships in Cyberspace: The Peril and the Promise,” 49 Duke L. J. 147, 149-97 (1999); see also Joan C. Rogers, “Cyberlawyers Must Chart Uncertain Course in World of Online Advice,” 16 ABA/BNA Lawyers’ Manual on Professional Conduct Special Report 96 (2000) (quoting other legal commentators’ similar conclusions that broad disclaimers may not prevent the formation of attorney-client relationships through cyberspace communications).
13. Lanctot, supra note 12, at 248. In support of this conclusion, Lanctot cites opinions considering lawyers’ use of disclaimers in a variety of contexts, including Kansas Bar Ass’n Comm. on Ethics/Advisory Servs., Op. 93-8 (1993) (“A lawyer operating a ‘900’ pay-for-information telephone number by which callers are given legal information . . . enters into a lawyer-client relationship with the caller and may not avoid it by disclaimer.”); N.J. Sup. Ct. Comm. on Unauthorized Prac., Op. 17 (1994) (attorney cannot avoid malpractice liability in rendering legal advice to client or prospective client through “900-number” service by disclaiming attorney-client relationship). See Lanctot, supra note 12, at 192-93 n. 146.
14.This is especially true for Internet communications, where giving legal advice might create an attorney-client relationship and thus subject an attorney to malpractice liability in a far distant jurisdiction. See New York City Ethics Op. 1998-2 (1998) (emphasizing need for caution given Internet’s multi-jurisdictional reach).
15. This conclusion is consistent with that of another state bar ethics committee that has considered the issue. See Ill. State Bar Ass’n Comm. on Prof. Conduct 96-10 (1997) (“lawyers participating in chat groups or other on-line services that could involve offering personalized legal advice to anyone who happens to be connected to the service should be mindful that the recipients of such advi[c]e are the lawyer’s clients, with the benefits and burdens of that relationship.”); see also Ohio Sup. Ct. Bd. of Comm’r on Grievances and Discipl., Op. 99-9 (1999) (attorneys who answer legal questions for a fee posed by visitors to firm’s web site subject to same constraints that govern other methods of delivering legal services, including requirements of conflicts checks, competence, and confidentiality).
16. See Ill. State Bar Ass’n Comm. on Prof. Conduct 96-10 (following its prior opinion cautioning that attorneys who gave legal advice through a telephone service could easily run afoul of the conflict of interest provisions of Rules 1.7 and 1.9, to conclude that “lawyers participating in similar activity over the Internet would be subject to the same concerns”); see also Arizona State Bar Ethics Ass’n Op. 97-04 (concluding that lawyers should not answer specific questions or give fact-specific advice in chat rooms because they would be unable to screen for potential conflicts and would risk confidentiality problems).
17. A client may waive confidentiality under D.C. Rule 1.6, but only after “full disclosure” and “consent.” D.C. Rule 1.6(d)(1). “[C]onsent” requires uncoerced assent following “consultation with the lawyer regarding the matter in question,” and “consultation” requires “communication of information reasonably sufficient to permit the client to appreciate the significance of the matter in question” (D.C. Rules “Terminology”  & )—requirements that may not be met in the context of assent through a “click through” disclaimer. As we noted in Opinion 309, waivers of confidentiality may be especially problematic and thus “require particular scrutiny and may be invalid even when granted by sophisticated clients” with independent counsel. Op. 309 n. 10.
18. The best way of avoiding conflict problems, of course, would be to refrain from creation of an attorney-client relationship in the first place. Lawyers might also ask that chat room participants abstain from providing confidential information, as already discussed. These steps would not necessarily eliminate all conflicts problems, however, which again points to the need to eschew the formation of attorney-client relationships.
19. Proposed comment  explains that “reasonable under the circumstances” means that “[i]f, for example, a client’s objective is limited to securing general information about the law the client needs in order to handle a common and typically uncomplicated legal problem, the lawyer and client may agree that the lawyer’s services will be limited to a brief telephone consultation. Such a limitation, however, would not be reasonable if the time allotted was not sufficient to yield advice upon which the client could rely. Although an agreement for a limited representation does not exempt a lawyer from the duty to provide competent representation, the limitation is a factor to be considered when determining the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. See Rule 1.1.”
The Ethics 2000 Commission’s proposed approach resembles Restatement (Third) of the Law Governing Lawyers § 19 (2000), which likewise permits lawyers to limit the duties they would owe a client under terms “reasonable under the circumstances.” But, the Restatement, too, would set a “floor” for the competence required, using the following illustration that might be apropos to some chat room exchanges:
3. Lawyer offers to provide tax-law advice for an hourly fee lower than most tax lawyers charge. Lawyer has little knowledge of tax law and asks Lawyer’s occasional tax clients to agree to waive the requirement of reasonable competence. Such a waiver is invalid, even if clients benefit to some extent from the low price and consent freely and on the basis of adequate information.