Washington Lawyer

Speaking of Ethics: Adventures in Cyberspace

From Washington Lawyer, May 2001

By Susan D. Gilbert

ethics

For some time now, the Internet has reached beyond the domain of kids, hackers, and those searching for every product ever made. With e-mail, e-trade, and dot-coms easily accessible to businesses and mere mortals alike, the Internet is within everyone’s domain. But for a profession bound by tradition and decades-old, if not centuries-old, laws and precedence, the Internet is still in its relative infancy. Even though law firm Web sites have become commonplace, lawyers still hesitate when it comes to actively using the Internet to solicit clients or find legal work.

Legal Ethics Committee Opinion 302 (November 2000) provides guidance and a measure of comfort to lawyers and firms seeking to use the Internet in two specific instances: soliciting plaintiffs for class action lawsuits and securing legal work through Internet-based Web pages. Both uses are permitted by the D.C. Rules of Professional Conduct. What the opinion provides is helpful guidelines to practitioners who wish to take advantage of the Internet in these circumstances.

Starting with the premise that D.C. Rule 7.1 applies to all forms of lawyer communications concerning legal services, the opinion clarifies that questions about proper use of a Web site do not differ from any other question about lawyer advertising or solicitation. Regardless of whether the Web posting is viewed as an advertisement or solicitation, the same prohibition against “false or misleading” communications is applicable when using the Web.

Noting the possible applicability of other laws, such as Rule 23 of the Federal Rules of Civil Procedure and Rule 8.5 (choice of law) of the D.C. Rules of Professional Conduct, the opinion suggests ways to prevent running afoul of the false-or-misleading requirement. The most obvious suggestion is that “the communication must accurately state the nature of the lawsuit,” avoiding language that suggests that the posting is required or authorized by a court when it is not. In addition, a lawyer is cautioned against making claims about his or her specialization or superiority unless such claims are capable of substantiation.

Unlike other jurisdictions, the District of Columbia permits use of for-profit advertising or referral services. Thus, a lawyer, in hopes of gaining clients, may pay others to post information about class action litigation on a Web site—conduct that is analogous to running an advertisement in a newspaper. Where, however, the relationship between the lawyer and the Web site host is less obvious, and especially where the lawyer is “financially affiliated” with the third party that posts the advertisement for potential class plaintiffs, Opinion 302 requires that potential clients must be informed of this relationship. See Rule 7.1(b)(5) and Comment [6].

Apart from advertising concerns, the opinion also notes a concern that arises under Rule 3.6. This rule, addressing trial publicity, applies to statements made by a lawyer that “a reasonable person would expect to be disseminated by means of mass public communications.” Given that Web sites with unrestricted public access could provide mass public communication with a stroke of the Send key, lawyers should be careful that Web site communications do not violate this rule.

This portion of the opinion concludes with an acknowledgment that “cyberspace communications raise new issues by virtue of the distinctive nature of the technology,” and offers numerous suggestions to practitioners on addressing these issues, including (1) information needed to prevent a Web site communication from being false and misleading should be readily available to people who use it and not numerous clicks away from the main pages; (2) key disclaimers should be provided on click-through boxes or pages that require visitors to verify reading the information before they can proceed; (3) to ensure receipt of messages sent to them, lawyers may want to send confirmatory messages; (4) standardize the responses visitors can make to Web pages; (5) include disclaimers on Web sites stating that they are not intended to solicit clients outside particular jurisdictions; and (6) follow other rules that are applicable to any representation, including compliance with other Rule 1.7 prohibitions and with conflict-of-interest and confidentiality rules.*

Opinion 302 also addresses ethics issues that are raised for lawyers when responding to requests for bids on legal services that prospective clients post on the Internet. Noting that Opinion 2001-1 (2000) of the Association of the Bar of the City of New York (ABCNY) approves of this practice—with restrictions—Opinion 302 views bidding on the Internet as a “potentially positive development in more efficiently matching attorneys and clients seeking legal services.”

Since the lawyer’s response, however, is a form of communication about his or her services, the Rule 7.1 false-or-misleading standard applies to lawyers participating in Internet-based bidding for legal services. According to Opinion 302, “Claims lawyers make about their services must be evaluated in light of their likelihood to mislead or deceive their intended recipient.” Although agreeing with ABCNY’s basic premise, Opinion 302 diverges from the New York opinion as is consistent with the differences between the two jurisdictions’ ethics rules. First, the D.C. opinion permits a lawyer to pay a fee for access to Web sites that contain postings for legal work. Comment [6] to Rule 7.1 “permits a lawyer to pay another person for channeling professional work to the lawyer,” including payment of fees charged by these programs. However, lawyers paying to participate in a Web-based bidding service must inform potential clients in their bids of the consideration paid to access the Web site and the effect, if any, of this payment on the proposed fee.

Second, Opinion 302 rejects ABCNY’s requirement that clients, not lawyers, must initiate all communications. The requirement does not apply in the District of Columbia because local rules do not make the same distinction drawn by the New York rules between advertising and soliciting. Rather, soliciting employment through an intermediary is prohibited only if the solicitation uses false or misleading statements. And in further contrast to the ABCNY opinion, Opinion 302 permits the Internet service to assist lawyers in responding to bids, but only to ensure compliance with the “potential clients’ informational needs.”

On some issues, however, the D.C. opinion agrees with the ABCNY opinion. Any fee a law firm pays to a service provider cannot be linked to or be contingent on the amount of legal fees the firm receives from the posted project, because this arrangement would violate Rule 5.4’s prohibition against sharing legal fees with nonlawyers. Similarly, Opinion 302 comments favorably on the ABCNY discussion of potential confidentiality and conflict-of-interest problems, including that lawyers must ensure that Web sites they are bidding on have taken adequate steps to protect against these problems.

* Many of these suggestions are derived from Walter A. Effross, A Web Site Checklist, Legal Times, Mar. 1, 1999.

Ethics counsel Susan D. Gilbert and Ernest T. Lindberg are available for telephone inquiries at 202-737-4700, ext. 231 and 232.