By Ernest T. Lindberg
The Internet has revolutionized the way we communicate, conduct business, even practice law. Indeed it has created new and intriguing ethical issues for lawyers, engendering a whole host of questions.
What representations and interactions may be made in cyberspace? Is it permissible for attorneys to participate in online chat room discussions? Does such participation establish an attorney–client relationship? If so, how? What are an attorney’s obligations to online clients? What rules of professional conduct apply?
D.C. Ethics Op. 316 (2002) addresses legal issues lawyers face when
they participate in legal chat room conversations. Although it finds
it is permissible for lawyers to take part in these communications,
it requires adherence to the applicable rules of professional conduct.
further discusses the attorney–client relationship, distinguishes between legal information and legal advice, and provides helpful guidance to the tech-savvy lawyer on the potential ethical dilemmas online communications present.
Rule 7.1(b) of the District of Columbia Rules of Professional Conduct allows “in-person solicitation” when the following requirements are met: (1) there are no misleading or false communications; (2) the solicitation does not unduly influence the client; (3) the client is apparently physically and mentally capable of exercising reasonable judgment when selecting a lawyer; (4) the intermediary has no contractual or legal obligations that prohibit him or her from providing solicitation services; and (5) the lawyer employing the intermediary ensures that potential clients are advised of the consideration paid for the service and the effect such payment has on the total legal fee to be charged.
Applying Rule 7.1(b) to chat room discussions and online solicitations, Opinion 316, citing Opinion 302, restricts lawyers from implying “they are disinterested in particular matters when they are not” and requires them to disclose any fees they pay to participate. Linking participation fees to the legal fees the lawyer may obtain from clients through online services is also prohibited.
The immediacy of real-time communications in chat rooms also gives rise to issues raised in D.C. Rule 7.1(b)(2) and (3), which prohibits solicitations involving the “use of undue influence” and seeking employment of individuals whose mental or physical condition impairs their ability to make rational judgments about the selection of an attorney. Lawyers should be particularly careful of these interactions, as it may be more difficult to ascertain such impairments in an online environment.
Other concerns raised by cyberspace communications include jurisdictional and unauthorized-practice-of-law issues. Lawyers must be aware not only of the District of Columbia Rules of Professional Conduct and rules governing the unauthorized practice of law, but also of the ethical and practice limitations imposed by the jurisdictions they encounter while online. See D.C. Ethics Op. 302 (2000).
While providing legal information online, lawyers must be careful to avoid the inadvertent formation of an attorney–client relationship. Inadequate precautions can easily result in serious ethical violations. Although the issue of whether or not an attorney–client relationship has been formed is a question of law, the following general principles provide useful guidance.
Many courts have found that neither a retainer nor a formal agreement is required to establish an attorney–client relationship. Other factors courts consider include the reasonable expectations and reliance of putative clients, whether the attorney impliedly or directly agreed to give advice, and whether the client sought the attorney’s advice. The use of “click through” disclaimers is a useful precaution; however, the effect may be nullified where subsequent interactions are inconsistent with the disclaimer. See id.
Educating the public on legal matters provides an important public service. However, lawyers are admonished to present legal information carefully in general terms. Lawyers seeking to avoid the formation of attorney–client relationships are well advised to emphasize that the information provided is general in nature and may not be appropriate for a specific circumstance, and they should steer clear of eliciting or providing answers and/or legal information on specific hypothetical issues and questions raised.
It is also prudent for lawyers to remind inquirers that chat room
conversations do not substitute a consultation with a lawyer about
the specifics of their legal concerns.
The last issue addressed in Opinion 316 is the impact of an attorney–client relationship formed in cyberspace. Lawyers should recognize they are duty-bound to clients retained in cyberspace. Though attorneys may limit the scope of their representation, they may not shirk competence requirements or their obligations to check for conflicts of interest so as to avoid prohibitions of Rules 1.7, 1.8, 1.9, and 1.10. Further, lawyers must protect the client confidences and secrets, maintain adequate client communication, and represent clients competently with diligence and zeal as required by D.C. Rules 1.1, 1.3, 1.4, and 1.6.
In summation, Rule 7.1 (Communications Concerning a Lawyer’s Services) must be clearly and adequately addressed while online. Attorney–client relationships may be created in cyberspace. As such, lawyers are bound by all of the rules of professional conduct. Additionally, issues involving jurisdiction, conflicts of interest, client confidences, and the unauthorized practice of law should be considered and evaluated at the onset.
The prudent lawyer will give careful consideration to all legal interactions while online to avoid any and all unintended consequences.
Legal ethics counsel Ernest T. Lindberg and Lisa Weatherspoon are available for telephone inquiries at 202-737-4700, ext. 231 or 232, or by e-mail at firstname.lastname@example.org.