Inquiry
The Legal Ethics Committee has received numerous
inquiries concerning lawyers’ use of Internet-based web pages
as a means of obtaining
clients. One such inquiry asks whether the D.C. Rules of Professional
Conduct prohibit an attorney from using the Internet in seeking plaintiffs
for
a class action lawsuit. Another asks whether it is permissible
to obtain legal work through Internet services that offer web pages
on which
potential clients post requests for bids on legal projects. We address
these
inquiries
together because each raises the general issue of Internet communications
regarding lawyers’ services.
With respect to the issue of
using web pages to obtain plaintiffs in class action lawsuits,
we have not
been asked to evaluate any particular web site for its conformity
to the D.C.
Rules
of Professional Conduct. As background to preparing this opinion,
however, we visited a variety of web sites found through use of Internet
search
engines in order to see how lawyers are making use of new cyberspace
technologies to communicate with potential clients. We came across
hundreds of such
web sites, ranging from extremely professional presentations
to ones of marginal quality. Some described class action lawsuits that
had already
been filed; others contained information on class action lawsuits
lawyers or sponsoring organizations were hoping to file, and urged visitors
to
contact the plaintiffs’ attorneys to sign up for the suit. With
respect to this latter group of web sites, it was often impossible
to tell
whether a lawyer was involved in the contemplated litigation. We discuss
additional
features of the web sites we examined in more detail below.
With
respect
to lawyers’ use of web sites providing bulletin boards
on which prospective clients post requests for bids to provide
legal services,
we found
a handful
of such web sites. Information at most of these sites was not
available without registering to use the service, but one web site,
which describes
itself as the “premier business-to-business exchange for legal
services,” provided what appeared to be clear and comprehensive information
to visitors from the general public. We therefore use this site as a
template
for
our general discussion of web-based bulletin board services, without
intending
to pass judgment on the specifics of this particular service.
The
site invites attorneys to register to bid on legal projects by
submitting information
about themselves, including their practice areas, firm size,
location,
years in business, technological capacities, and (at the option
of the firm) its “diversity profile.” Corporations are invited to post
requests
for proposals (“RFPs”) on the web site. They may identify themselves
or may, in “special circumstances” not further explained, post
RFPs
anonymously. Corporations may block other corporations from seeing
their
RFPs and may also select which registered law firms may view
them. Law firms respond to RFPs by filling out a summary of their bid
and fee
structure, which they must submit to the corporation through the web
site. The prospective parties may then correspond with each other, either
through
encrypted communications
over the web site or off-line, at their own option. At the end
of this process, corporations make their decisions about which law firm
to
hire for a particular posted project.
The web site sponsor states
that it does
not participate in any discussion corporations or law firms have
during the selection process. It does offer, however, to assist corporations
in preparing RFPs and to assist law firms in preparing their
responding
bids
in appropriate formats as required by the corporations. It also
states that it will assist corporations by seeking to register new law
firms,
by researching and recommending law firms not yet registered
at the site, and by verifying bar admissions and good standing of counsel
responding
to RFPs. The web site sponsor charges a percentage fee (2%) of
the
amount paid by the corporation to the law firm selected for work,
which the corporation
pays directly to the web site sponsor at the same time that it
pays its legal bills. The web site further discloses the principals in
this
venture,
including its directors, managers, outside counsel, and advisory
board, all of whom are described in depth; the user agreement; and mock
sample
RFPs and firm registrations.
Discussion
We start our analysis
by noting that, consistent with the approach of ethics committees in
many other
jurisdictions, we see nothing untoward in lawyers communicating
about their services through
web sites, provided that such communications comply with our
general rules governing lawyer communications with clients.1 Indeed,
questions
regarding
how a lawyer may use a web site in seeking to obtain clients
are at bottom no different than any other question about lawyer
communications
about
legal services. Such questions are governed by D.C. Rule 7.1.2 Unlike
many other jurisdictions, D.C. does not have special rules
or restrictions
that apply to client solicitation; D.C. Rule 7.1 applies to
all forms of lawyer communications about legal services. The
touchstone of
Rule
7.1
is whether lawyers’ communications about themselves or their
services are “false or misleading.” 7.1(a). Thus, regardless of whether
using
web sites
to obtain clients is viewed as advertising or solicitation,
the same fundamental restriction prohibiting “false or misleading”
communications
will govern
the analysis.
We note at the outset that many
sources
of law in addition to the D.C. Rules of Professional Conduct
may apply to
lawyer communications with potential class action plaintiffs.
These sources
of law include Federal Rule of Civil Procedure 23 and its state
law counterparts, the orders of the court supervising the class action
lawsuit once it
has been filed, constitutional restrictions on regulating attorney
communications with potential class action members as discussed
in
Gulf Oil v. Bernard,
452 U.S. 89 (1981), and so forth. As always, we assert no opinion
on these
other sources of law potentially relevant to the question
of legal restrictions on a lawyer’s ability to communicate with potential
class
action clients, but confine our discussion to the requirements
of the
D.C. Rules of Professional Conduct.
Another area of law we
do not address concerns
the applicability of other jurisdictions’ rules of professional
conduct and related choice of law issues under Rule 8.5. We note, however,
that the distinctive nature of the communications medium under
discussion
deeply implicates these issues. The very name, “World Wide
Web,” highlights the
reach of such communications far beyond the bounds of any particular
legal jurisdiction. Not surprisingly, our search for web sites
concerning class
action lawsuits turned up English language sites from all over
the world. We thus wish to emphasize at the outset that this
opinion, limited
to
the application of the D.C. Rules of Professional Conduct to
web sites seeking
class action clients, in no way resolves questions of utmost
importance to practitioners—namely, the potential applicability
of other jurisdictions’
rules of professional conduct.
With these caveats in mind,
we turn back to the requirement of D.C. Rules of Professional
Conduct
7.1 that
lawyers’
communications about their services not be false or misleading.
There are a number of ways communication about a class action
lawsuit could
run afoul
of this requirement. Most obviously, the communication must
accurately state the nature of the lawsuit. In addition, a
communication
may be false or misleading if it uses words such as “Notice”
or otherwise
suggests that
it is required or authorized by a court when that is not in
fact the case. Cf. In re McKesson HBOC, Inc. Securities Litigation,
2000 U.S.
Dist. LEXIS
5828 (N.D. Cal. May 1, 2000) (deciding issue under Fed. R.
Civ.
P. 23). As we noted in Opinion 249, Rule 7.1 allows truthful
claims about
lawyer
specialization, provided that the basis for making the claim
is capable of substantiation. Comparative claims about the
superiority of the
lawyer’s services that cannot be substantiated are prohibited,
as discussed
under Rule 7.1(a)(2) comment [1]. Similarly, as we further
noted in Opinion 249, lawyers may not make claims that they
“can help
you” since
“there
is no way such a claim can be accurate in the abstract and
the practitioner cannot know whether or not he can help any
client
until some facts
are known about the client’s case.”
Unlike other jurisdictions,
D.C. does
not prohibit the use of for-profit agencies to provide advertising
or referral
services to lawyers. Thus, lawyers may pay outside services
or agents for posting information about pending or contemplated
class action
litigation from which the law firm stands to gain clients.
This
situation may in
some
circumstances be analogous to purchasing space in the yellow
pages or newspaper to run a paid advertisement, which is permissible
under
Rule
7.1 as long
as it is clear that the communication is a paid advertisement.
In
other situations, however, the relationship between the lawyer and the web
site host may be less obvious. Here, as Rule 7.1(b) (5) and
accompanying Comment
[6] explain, a lawyer who employs a paid intermediary in seeking
legal business must take all reasonable steps to ensure that
the potential
client is informed of the consideration paid by the lawyer
to the intermediary and the effect of such payment on the fee
charged.3 Thus,
attorneys must disclose their financial relationship to third-party
intermediaries
hosting
web sites through which the lawyer may gain legal business.
In our search of web sites advertising for plaintiffs for class
action lawsuits,
we
came
across many sites in which the affiliation between a lawyer
and
the group or individual sponsoring the web site was unclear.
This may well
have been because no lawyer was affiliated with
the contemplated litigation. In cases in which a lawyer is
financially affiliated with an
organization or individual who is advertising for potential
plaintiffs for contemplated class action litigation, however,
this relationship
must be made clear to potential clients.
Lawyers’ financial
interests in class action litigation raise still another concern
under
D.C. Rule of Professional
Conduct 4.3. As Rule 4.3 provides, a lawyer who represents
a client in a matter may not state or imply to unrepresented
persons
that the
lawyer
is disinterested when the unrepresented person might assume
the lawyer is providing disinterested advice with regard to
the matter.
Lawyers
sponsoring web sites describing contemplated or pending class
action lawsuits in which
they are involved obviously are not disinterested, both because
they are representing clients with interests in the litigation
and because
the size
of their fees may depend in part on the number of class action
members they are able to obtain. Thus, lawyers engaged in Internet
communications
about class action lawsuits must disclose their interests in
the legal issues or cases under discussion. Lawyers may not
pretend that information
provided on a web page or in another cyberspace format is from
a disinterested perspective, motivated merely by a desire to
inform the public about
legal matters.
Finally, we note in passing that lawyers’ web
site communications about a class action lawsuit could potentially
raise issues under Rule
3.6, which concerns lawyer statements about a case being tried
to a judge or jury. Rule 3.6 applies to lawyer statements that
“a reasonable
person
would expect to be disseminated by means of mass public communication.”
Since web sites with unrestricted public access provide such
a means of
mass public communications, lawyers should ensure that web
site communications to the general public do not create “a
serious
and imminent threat
to the impartiality of the judge or jury.”
In sum, use
of web sites
as a
means of obtaining plaintiffs for class action lawsuits in
many ways resembles the use of other forms of mass media, such
as
newspaper advertisements,
and can be analyzed in much the same way. In other respects,
however, cyberspace
communications raise new issues by virtue of the distinctive
nature of the technology. For example, because web pages allow
multi-layered
communications,
questions may arise about whether a visitor to a web page may
be misled because relevant disclosures are hidden many clicks
away from the main
pages. Indeed, on some of the web sites we examined, relevant
disclosures, such as the relationship between a group of lawyers
and the class action
litigation being discussed, were buried in links several clicks
removed from the main pages. The information needed to prevent
a web site communication
from being false and misleading should be readily available
to visitors. Here a helpful analogy might be fine print in
a newspaper
ad; the relevant
question would be whether the public to which the communication
is being directed would be likely to be misled or deceived
by the web
site’s design
and layout.
Practitioners may be guided in designing web
sites by the advice of e-commerce experts. One such e-commerce expert
suggests that
key disclaimers
be provided on “click through” boxes or pages, which require
visitors to verify they have read important information by
clicking on a specified
area of the screen before proceeding. See Walter A. Effross,
“A Web Site Checklist,” Legal Times, Mar. 1, 1999. Prof. Effross
further emphasizes
the need to take care in designing web sites that allow visitors
to send
e-mail to a site owner. Indeed, in our survey, we found quite
a few sites that invited potential class action members to
submit detailed
profiles
about themselves to the web site sponsor. Lawyers may want
to use “click through” pages with disclaimers to ensure that
visitors
are not misled
about the nature of the relationship established through such
communications. Lawyers should also take steps to ensure that they are receiving the e-mail sent to them via their web
pages. Lawyers may want to state
that they will send a reply message confirming that e-mail
communications have been received, and caution visitors not
to assume that their
message has been received until they have received such confirmation.
This
confirmatory message might also present an opportunity to clarify
the nature of the
relationship formed by such communications.
Following yet other
suggestions of Prof. Effross, lawyers may want to take steps
to standardize the
responses visitors can make to web pages so that visitors cannot
communicate online
about matters other than those about which the lawyers are
seeking information. Effross further notes that web sites can
include
disclaimers stating
that they are not intending to solicit clients outside particular
jurisdictions, or may take even stronger measures such as accepting
communications
only from persons with zip codes within appropriate jurisdictions.
These suggestions
do not, of course, serve as a definitive guide concerning the
safeguards lawyers should institute in using web sites to obtain
legal business;
given
the rapid pace of technological development in this area, additional
protections may be warranted in the future.
Lawyer contacts
with potential class action
members through Internet communications are potentially less
intrusive than in-person contacts, but lawyers must nevertheless
take care that,
in communicating with potential clients over the Internet as
in any other form of communication, they conform to the restriction
in Rule
7.1(b)(3)
against seeking employment by a person who has not sought the
lawyer’s advice where “the potential client is apparently in
a physical or mental
condition which would make it unlikely that the potential client
could exercise reasonable, considered judgment as to the selection
of a lawyer.”
Likewise, Rule 7.1(c) provides that lawyers may not assist
organizations in promoting the use of their services
or those of other
affiliated lawyers if the promotion activity involves the use
of “coercion, duress
. . . or vexatious or harassing conduct.” Thus lawyers may
not use Internet communications in a vexatious or harassing
manner.
Practitioners
must
also, of course, ensure that they have in place workable means
of conducting conflicts checks and otherwise assessing the
suitability of any potential
client before agreeing to the representation. The fact that
communications about the lawyer’s services are occurring
over the Internet does
not in
any way minimize the attorney’s obligations to avoid conflicts
of interest.
Finally, our topic raises the question of preserving
confidentiality
in communicating with clients over the Internet. As we have
already discussed in Opinion 281 (1998), the transmission of
information
from a lawyer
to
a client by unencrypted electronic mail will not violate Rule
1.6 unless special circumstances require greater means of security.
All of the
same considerations we discussed in Opinion 281 would apply
in analyzing the
need to encrypt e-mail communications in the context at issue
here.
We now turn to inquiries we have received on the
subject of attorneys’ use of web sites on which
clients post requests for bids of legal projects. Our response
to such inquiries is motivated
in part
by the Association
of the Bar of the City of New York’s (“ABCNY”) recent
release of an opinion
approving this practice with certain restrictions. New York
City Ethics Op. 2000-1 (2000).
Yet another of the many ways in which the cyberspace
communications revolution has affected law practice is in the birth of web sites
offering a
service, perhaps best analogized to a bulletin board, on which potential clients
may post legal projects and invite attorneys to bid on them. This practice, as
the ABCNY noted, is similar to the Requests for Proposals procedure already used
by the government and increasing numbers of other clients to select counsel for
particular legal projects. The ABCNY, applying the New York Lawyer’s Code
of
Professional Responsibility, approved the use of an Internet-based legal services
bidding system in its Opinion 2000-1, provided that four conditions obtain: (1)
the client’s invitation is not initiated by the lawyer; (2) the fee charged
is
paid only by the client; (3) no legal fees are shared with the service provider,
and (4) the responding lawyer is not pre-screened, approved, or otherwise regulated
by the web site sponsor. Although we concur with the ABCNY’s basic views
about the type of Internet-based bidding system described above, the differences
between
our legal ethics rules and those of New York lead us to different conclusions
about the restrictions to be imposed on this practice.
At the outset, we note
that we see no ethical evils lurking in the practice; on the contrary, we view
it as a potentially positive development in more efficiently matching attorneys
and clients seeking legal services. As we noted in Opinion 225 (1992), where
we discussed law firms’ participation in prepaid legal services programs, this
“committee encourages the development of
new approaches to the
provision of legal services, so long as those approaches conform to the general
and accepted norms of ethical conduct designed to protect the public and the
profession” (quoting D.C. Bar Op. 91 (1980)).
Again, the touchstone for analyzing
such communications is the Rule 7.1(a) standard barring lawyer communications
about their services that are “false or misleading.” Accordingly, lawyers participating
in Internet-based bidding systems must satisfy themselves that their responses
to requests for bids on legal projects are not false or misleading in the ways
discussed above or in other ways. Claims lawyers make about their services must
be evaluated in light of their likelihood to mislead or deceive their
intended recipient.
An inquirer has asked whether the restriction articulated
by the ABCNY against lawyers paying a fee to access web sites containing postings
of legal projects applies under the D.C. Rules of Professional Conduct. We conclude
that it does not. The ABCNY’s views are based on the New York State ethical
prohibition against participation in for-profit referral plans. D.C. Rule 7.1,
on the other
hand, as we have already noted, explicitly permits the payment of consideration
to a non-lawyer intermediary to assist a lawyer seeking employment. Comment [6]
to Rule 7.1 explains that this rule “permits a lawyer to pay another person for
channeling professional work to the lawyer. . . . Likewise, a lawyer may participate
in lawyer referral programs and pay the usual fees charged by such programs.”
Thus, it is permissible under the D.C. Rules of Professional Conduct for lawyers
to pay a fee or other consideration in order to access a web site containing
postings of legal projects. Rule 7.1(b)(5) provides that lawyers must take “all
reasonable steps to ensure that the potential client is informed of (a) the consideration,
if any, paid or to be paid by the lawyer to the intermediary, and (b) the effect,
if any, of the payment to the intermediary on the total fee to be charged.” Thus,
lawyers
paying fees to
participate in a web-based bidding service must inform potential clients in their
bids on a legal project of the consideration paid in order to access the web
site and the effect, if any, of this payment on the proposed fee to be charged
the client.
Our rules lead us to a different approach than
that of the ABCNY with respect to another consideration in the use of Internet-based
bidding services
as well. In its Opinion 2000-1, the ABCNY analyzed whether the Internet-based
bidding procedure violated restrictions on solicitation contained in the New
York Lawyer’s Code of Professional Responsibility that do not exist in
the D.C. Rules. The ABCNY concluded that the described bidding procedure
did not
violate New York’s anti-solicitation rules because all communications between
potential clients and lawyers were initiated by the potential clients.
The ABCNY
reasoned that it was “the clients who, in effect, have ‘solicited’ those attorneys
who are interested to submit a bid on the project” and thus concluded that the
Internet-based bidding system was permissible, provided that clients initiated
all communications with lawyers. The same analysis does not apply under the D.C.
Rules of Professional Conduct, because application of the D.C. Rules does not
turn on the sometimes fine distinction between advertising and solicitation.
Instead, Rule 7.1, as most relevant here, prohibits a lawyer from soliciting
employment through an intermediary only if the solicitation involves use of a
statement that is false or misleading. Rule 7.1(b)(1).
The ABCNY opinion further
notes that the arrangement it reviewed did not permit the Internet service to
screen, approve, or otherwise direct or regulate attorneys’ professional presentations
in their RFP responses. The sample site we examined for purposes of preparing
this opinion similarly focuses its offers of support services on corporations
seeking law firms rather than on law firms responding to RFPs. Unlike the arrangement
reviewed by the ABCNY, however, the sample site we reviewed does offer to assist
law firms in responding to RFPs in order to ensure compliance “in appropriate
formats as required by the corporations.” We view such limited involvement in
law firms’ formulation of RFP responses as permissible under Rule 5.4, since
it appears intended merely to ensure that potential clients’ informational needs
are met. It does not, in other words, appear that the Internet service intends
to “direct or regulate the lawyer’s professional judgment in rendering such legal
services,” which would be prohibited under Rule 5.4(c).
The ABCNY opinion states
that any fee a law firm pays to a service provider cannot be linked to
or contingent on the amount of legal fees the lawyers obtain from a posted project.
We agree with this aspect of the ABCNY’s opinion, since such an arrangement would
violate D.C. Rule 5.4’s prohibition against lawyers sharing legal fees with non-lawyers.
See Opinion
286 (payment to non-lawyer of referral fee contingent on or tied to a lawyer’s
receipt of legal fees constitutes an impermissible sharing of fees). The web
site we examined in preparing this opinion appears to avoid such problems because
it is the client who pays all charges for using the Internet service. These charges
are calculated as a portion of the legal bills the client incurs in using a lawyer
obtained through the Internet service, but since it is the client who pays the
Internet service these bills, there is no impermissible fee sharing under Rule
5.4.
We also agree with the ABCNY that potential confidentiality
and conflicts problems may arise under the contemplated arrangement. The inquirer
in the ABCNY
case proposed to assist responding attorneys in avoiding potential conflicts
troubles by giving attorneys the name of the potential client on whose project
they intended to bid, along with the name of the adverse party, if any. We agree
with the ABCNY’s observation that such a procedure, though well meaning, poses
potential problems where providing this information could result in disclosure
of secret client information, such as an intent to file a future lawsuit or concern
about a potential source of liability exposure. The web site we examined attempts
to mitigate these problems in several ways, including by blocking corporations
from seeing each other’s RFPs, allowing RFP access to only those law firms a
corporation authorizes, and permitting anonymous RFP postings in some (undefined)
circumstances. These procedures help protect against conflicts and confidentiality
problems, but do not fully solve them. In particular, we are troubled by the
possibility that an unsophisticated client could disclose in an RFP information
that could be potentially damaging to it if viewed by lawyers having
a
conflict of interest. Lawyers should thus assure themselves that any Internet
bidding service in which they participate has adequate procedures in place to
avoid such problems.
Law firms must also conduct their own internal
conflicts reviews in the course of the procedure contemplated for making matches
between
law firms and clients.
Because the procedures we reviewed allow for direct communications between a
lawyer and potential client after the first contact, to which the web site sponsor
would not have access, it would appear that law firms could rely on their usual
protections for confidential information and procedures for undertaking conflicts
checks.
To summarize, our approach differs from the ABCNY’s
in that the D.C. Rules of Professional Conduct allow lawyers to initiate communications
with potential
clients and to pay a fee to access web sites containing postings of legal projects.
On the other hand, we agree with the ABCNY that, when lawyers pay a fee to use
such services, the lawyers’ charge should not be linked to the size of the legal
bills they generate through the service. We also agree with the ABCNY that such
services are permissible to the extent that web site sponsors are not involved
in directing or regulating attorneys in such a way as to interfere with lawyers’
professional judgment in how they would render legal services. Finally, we agree
that lawyers must ensure that web sites they use to bid on legal projects have
taken adequate steps to protect against confidentiality and conflict of interest
problems.
In closing, we reiterate that this opinion discusses the rules that
apply to attorneys making use of web sites providing legal project bidding services
only to the extent that our rules provide the applicable rules of decision. Questions
that arise about substantive law, unauthorized practice of law, and the applicability
of other states’ rules of professional conduct by virtue of the accessibility
of Internet sites to lawyers outside this jurisdiction, are beyond the
scope of this committee’s mandate.
Inquiry No. 00-8-25
Adopted: November 21, 2000
- Other opinions that have concluded that lawyers
may advertise legal services on a web page or through other electronic means
include N.Y. State Legal
Ethics Op. 709 (1998) (“Advertising via the Internet . . . is permissible as
long as the advertising is not false, deceptive or misleading, and otherwise
adheres to the requirements set forth in the Code”); Conn. Legal Ethics Op.
97-29 (1997) (In our opinion the same rules apply to Internet advertising
that apply to advertising in other media); Ill. Legal Ethics Op. 96-10 (1997)
(“The Committee believes that the existing Rules of Professional Conduct
governing advertising, solicitation and communication concerning a lawyer’s
services provide adequate and appropriate guidance to a lawyer using the
Internet.”); Utah Legal Ethics Op. 97-10 (1997) (attorneys may advertise
their legal services through Internet provided they comply with states’ ethics
rules governing advertising); N.C. Legal Ethics Op. RPC 239 (1996) (“All
communications by a lawyer concerning the lawyer or the lawyer’s services
including communications via computer, are subject to the prohibition . .
. against false or misleading communications.”); Pa. Legal Ethics Op. 96-17
(1996) (“Any content that would be permissible under [our rules] should also
be permissible on a web page,” with the fundamental restriction being against
“false or misleading communication about the lawyer or the lawyer’s
services”).
- D.C. Rule of Professional Conduct Rule 7.1(a) provides:
A lawyer shall not
make a false or misleading communication about the lawyer or the lawyer’s
services. A communication is false or misleading if it:
(1) Contains a material
misrepresentation
of fact or law, or omits a fact necessary to make the statement considered
as a whole not materially misleading; or
(2) Contains an assertion about the
lawyer or the lawyer’s services that cannot be substantiated.
- Rule 7.1(b)(5) provides that a lawyer should not solicit employment if “the
solicitation involves the uses of an intermediary and the lawyer has not taken
all reasonable steps to ensure that the potential client is informed of (a)
the consideration paid by the lawyer to the intermediary, and (b) the effect,
if any, of the payment to the intermediary on the total fee to be charged.”
