Failure To Consult Internet May Result in Legal Malpractice

Surfing the web is now part of the “reasonable knowledge and skill” that ordinary lawyers are expected to possess and exercise

By Jonathan Bick Bick is Of Counsel at Brach Eichler LLC in Roseland. He is also an adjunct professor at Pace and Rutgers law schools, and the author of 101 Things You Need to Know About Internet Law (Random House 2000)

As the Internet continues to interpenetrate every aspect of the law, lawyers who would overlook the Internet do so at their peril. Attorneys on various Internet sites have already suggested that not making use of the Internet when confronted with particular legal matters amounts to malpractice. Certain New Jersey court rules make the failure to file via the Internet tantamount to failure to timely file, which is a common basis for legal malpractice.

Legal malpractice most commonly results from negligence or a breach of fiduciary duty by an attorney that causes harm to his or her client. Actionable legal malpractice requires the injured party to show that the attorney’s acts were the result of errors that no reasonable attorney would make.

To prevail on a claim of legal malpractice, a duty of care must arise, said duty is breached and is a proximate cause of an injury. DeAngelis v. Rose, 727 A.2d 61 (1999). Generally speaking, a lawyer is required to exercise that “degree of reasonable knowledge and skill that lawyers of ordinary ability and skill possess and exercise.” St. Pius X House of Retreats v. Camden Dioc., 443 A.2d 1052 (1982). After nearly 15 years of widespread use of the Internet by lawyers of ordinary ability and skill, for providing various aspects of legal services to their clients, certain failures to use the Internet will likely constitute legal malpractice.
When an attorney’s actions clearly indicate a departure from the standard of care of lawyers, legal malpractice is likely to arise. For example, a lawyer who fails to file a claim within the applicable statute of limitations, resulting in dismissal of the client’s case, would be guilty of malpractice.

An obvious failure to use the Internet resulting in legal malpractice is the failure to use Judiciary Electronic Filing System (JEFIS) for certain filings. Filing DC-docket type cases through JEFIS is now mandatory for all law firms who file over 400 DC complaints in the Special Civil Part per year (www.judiciary.state.nj.us/notices /2011/n110722c.pdf). Thus, if certain attorneys fail to use JEFIS after May 1, 2011, for DC complaints, those complaints will be returned stamped “Received But Not Filed — Must Be E-Filed Via JEFIS.” The original receipt date will not be preserved as the filed date even if the pleading or document is retransmitted to the court via JEFIS within 10 days. Exceptions to these requirements may be granted on a case-by-case basis by the Special Civil Part only when extraordinary circumstances would prevent the attorney from using JEFIS to file a particular document.

More than a decade ago, judges and bar associations recognized the necessity of Internet research. As evidenced, in 2000, the Sixth Circuit adopted an Electronic Citation System which allows attorneys to cite from opinions mounted on the court’s Internet site. See United States Court of Appeals for the Sixth Circuit Published Opinions (last modified Nov. 17, 2000) http://pacer.ca6.uscourts.gov/opinions/main.php. As early as 1998, the New York State Bar Association ethics opinions started to advise attorneys as to the proper use of Internet legal research. See N.Y. St. B.A. Comm. on Professional Ethics, Op. 709 (Sept. 16, 1998).

A lawyer’s failure to use the Internet in his or her research was identified as an issue in 1996 for the purpose of determining the adequacy of an attorney’s research. This finding has been repeated by the courts numerous times since then, especially when dealing with information that is deemed to be in the public domain.

Perhaps the first case to identify the Internet’s role in overcoming a malpractice claim due to failure to stay informed of changes in the law was McNamara v. United States, 74 F.3d 514 (1996). The court found that lawyers must keep on top of the latest developments in legal research or be subject to an ineffective assistance of counsel claim. The court identified the proper use of online services as a defense to a claim of ineffective assistance of counsel due being insufficiently abreast of developments in the law.

This line of reasoning was further extended in the now widely cited case of Whirlpool Financial Corp. v. GN Holdings, 67 F. 3d 605 (1995). The court suggested that people need to know how to find current information on the Internet. After highlighting the ease of accessibility of federal and state legislation and regulations, as well as information regarding industry trends, the court reprimanded the plaintiff’s attorney for failing to uncover information that was easily accessible.

The Internet has become a source of information that courts consider to be in the public domain. Consequently, attorneys, and others conducting business, will be deemed to know of information found on the Internet as it affects their representations. An attorney who represents a client is well advised to check the Internet when advising the client or preparing for a case. This is especially true in the intellectual property arena. As more products become available exclusively on the Internet, attorneys will need to know how to use the Internet to investigate “unlicensed uses of consumer product brand names,” and other types of intellectual property violations that are occurring online.

This last point is likewise applicable to nonintellectual property legal information. General legal information is finding its way exclusively onto the Internet, whereas in the past this same information could be found only in print. It is much faster, easier and cheaper for the government to place information on the Internet than it is to distribute it widely in a print format.

These factors have also lead courts to disseminate their work product electronically. Failure to use such Internet content may result in malpractice. For example, Public Access to Court Electronic Records (PACER) is an electronic public access service that allows users to obtain case and docket information from federal appellate, district and bankruptcy courts via the Internet. PACER is provided by the federal Judiciary.

A common basis for a legal malpractice claim arises when an attorney misses the deadline for a filing with the court, such as a statute of limitations, and the attorney’s error is related to the loss of the client’s cause of action. A failure to use PACER under certain circumstances may result in a malpractice complaint.

An attorney’s legal duties have become much more complicated by virtue of the Internet. In addition to a potential claim of malpractice for failure to use the Internet in the performance of certain legal services, the Internet poses a grave risk to attorneys who fail to properly use it as they attempt to remain ethical and avoid malpractice actions.

Failure to properly use the Internet may run afoul of their ethical duty to remain competent in their research. Most state rules of professional conduct directly or indirectly include the use of the Internet in its evaluation of a lawyer’s competency. The American Bar Association’s Model Rules of Professional Conduct acknowledge the importance of the Internet in advertising for lawyers (Rule 1.18 Duties to Prospective Client, Rule 7.2 Advertising and Rule 7.3 Solicitation of Clients).

The boundaries between legal malpractice and ethical violations are indistinguishable at times. Ethical violations can lead directly and indirectly to legal-malpractice-related difficulties.