Internet Legal Ethics and Client Privacy

Jonathan Bick, New Jersey Law Journal   June 12, 2017    

Internet professional responsibility and client privacy difficulties are intimately associated with the services offered by lawyers. Electronic attorney services result in data gathering, information exchange, document transfers, enhanced communications, and novel opportunities for marketing and promotion. These services in turn, provide an array of complicated ethical issues that can present pitfalls for the uninitiated and unwary.

Since the internet interpenetrates every aspect of the law, internet activity can result in a grievance filed against attorneys for professional and ethical misconduct when such internet use results in: communication failure, conflicts of interest, misrepresentation, fraud, dishonesty, missed deadlines or court appearances, advertising violations, improper billing and funds misuse. While specific internet privacy violation rules and regulations are rarely applied to attorney transactions, attorneys are regularly implicated in unfair and deceptive trade practices and industry specific violations which are often interspersed with privacy violation facts.

Attorneys have a professional-responsibility duty to use the internet, and it is that professional responsibility which results in difficulties for doing so. More specifically, the Model Rules of Professional Conduct Rule 1.1 (competence) paragraph 8 (maintenance) has been interpreted to require the use of the internet, then the Model Rules of Professional Conduct Rules 7.1 - 7.5 (communications, advertising and soliciting) specifically charge attorneys with malfeasance for using the internet improperly.

The New Jersey Rules of Professional Conduct address internet marketing. The rules related to website design and internet marketing can be found at Rule 7.1 through Rule 7.5. The rules in New Jersey track closely with the Model Rules from the American Bar Association.

Internet professional conduct standards and model rules/commentary cross the full range of internet related concerns, including: expert self identification and specialty description; the correct way to structure internet personal profiles; social media privacy settings; the importance and use of disclaimers; what constitutes "communication"; and the establishment of an attorney-client relationship. Additionally, ethics rules address "liking," "friend-ing" and "tagging" practices.

The application of codes of professional conduct is faced with a two-fold difficulty. First, what is the nature of the attorney internet activity? Is the activity publishing, broadcasting or telecommunications? Determining the nature of the attorney internet activity is important because different privacy and ethic cannons apply. Additionally, the determination of the nature of the attorney activity allows practitioners to apply analogies. For example, guidance with respect to attorney internet-advertising professional conduct is likely to be judged by the same standards as traditional attorney advertising.

The second difficulty is the location where activity occurs. Jurisdictions have enacted contrary laws and professional-responsibility duties.

Options for protecting client privacy and promoting professional responsibility include technical, business and legal options. Consider the following specific legal transactions.

A lawyer seeking to use the internet attract new clients across multiple jurisdictions frequently is confronted with inconsistent rules and regulations. A number of jurisdictions have taken the position that internet communications are a form of advertising and thus subject to a particular state bar's ethical restrictions. Such restrictions related to internet content include: banning testimonials, prohibitions on self-laudatory statements, disclaimers, and labeling the materials presented as advertising.

Other restrictions relate to content processing, such as requiring that advance copies of any advertising materials be submitted for review by designated bar entities prior to dissemination, and requiring that attorneys keep a copy of their website and any changes made to it for three years, along with a record of when and where the website was used. Still other restrictions relate to distribution techniques such as unsolicited commercial emailing (spam). Spam is considered by some states as overreaching, on the same grounds as ethical bans on in-person or telephone solicitation.

To overcome these difficulties and thus permit responsible use of the internet for attorney marketing, both technical and business solutions are available. The technical solution employs selectively serving advertisements to appropriate locations. For this solution, software can be deployed to detect the origin of an internet transaction. This software will serve up advertising based on the location of the recipient. Thus, attorneys can ameliorate or eliminate the difficulties associated with advertising and marketing restrictions without applying the most restrictive rule to every state.

Alternatively, a business solution may be used. Such a business solution would apply the most restrictive rules of each state to every internet advertising and marketing communication.

Another legal difficulty associated with attorney internet advertising and marketing is the unauthorized practice of law. All states have statutes or ethical rules that make it unlawful for persons to hold themselves out as attorneys or to provide legal services unless admitted and licensed to practice in that jurisdiction.

There are no reported decisions on this issue, but a handful of ethics opinions and court decisions take a restrictive view of unauthorized practice issues. For example, the court in Birbower, Montalbano, Condon & Frank v. Superior, 949 P.2d 1(1998), relied on unauthorized practice concerns in refusing to honor a fee agreement between a New York law firm and a California client for legal services provided in California, because the New York firm did not retain local counsel and its attorneys were not admitted in California.

Software can detect the origin of an internet transaction. Thus, attorneys can ameliorate or eliminate the unauthorized practice of law by identifying the location of a potential client and only interacting with potential clients located in state where an attorney is authorized to practice. Alternatively, an attorney could use a net nanny to prevent communications with potential clients located in state where the attorney is not authorized to practice.

Preserving clients' confidences is of critical importance in all aspects of an attorney's practice. An attorney using the internet to communicate with a client must consider the confidentiality of such communications. Using the internet to communicate with clients on confidential matters, raises a number of issues, including whether such communications: might violate the obligation to maintain client confidentiality; result in a waiver of the attorney-client privilege if intercepted by an unauthorized party; and create possible malpractice liability.

Both legal and technological solutions are available. First, memorializing informed consent is a legal solution.

Some recent ethics opinions suggest a need for caution. Iowa Opinion 96-1 states that before sending client-sensitive information over the internet, a lawyer should either encrypt the information or obtain the client's written acknowledgment of the risks of using this method of communication.

Substantial compliance may be a technological solution, because the changing nature of internet difficulties makes complete compliance unfeasible. Some attorneys have adopted internal measures to protect electronic client communications, including: asking clients to consider alternative technologies, encrypting messages to increase security, obtaining written client authorization to use the internet and acknowledgment of the possible risks in so doing, and exercising independent judgment about communications too sensitive to share using the internet. While the use of such technology is not foolproof, if said use is demonstrably more significant than what is customary, judges and juries have found such efforts to be sufficient.

Finally, both legal and business options are available to surmount internet related client conflicts. Because of the business development potential of "chat rooms," bulletin boards, and other electronic opportunities for client contact, many attorneys see the internet as a powerful client development tool. What some fail to recognize, however, is that the very opportunity to attract new clients may be a source of unintended conflicts of interest.

Take, for example, one of the most common uses of internet chat rooms: a request seeking advice from attorneys experienced in dealing with a particular legal problem. Attorneys have been known to prepare elaborate and highly detailed responses to such inquiries. Depending on the level and nature of the information received and the advice provided, however, attorneys may be dismayed to discover that they have inadvertently created an attorney-client relationship with the requesting party. At a minimum, given the anonymous nature of many such inquiries, they may face the embarrassment and potential client relations problem of taking a public position or providing advice contrary to the interests of an existing firm client.

An acceptable legal solution is the application of disclaimers and consents. Some operators of electronic bulletin boards and online discussion groups have tried to minimize the client conflict potential by providing disclaimers or including as part of the subscription agreement the acknowledgment that any participation in online discussions does not create an attorney-client relationship.