New Jersey Law Journal - VOL. 215 - NO 3 MONDAY, JANUARY 20, 2014 Professional Malpractice

Improper Internet Use Exacerbates Malpractice Exposure

The Web presents another arena where attorneys can breach the required standard of conduct

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).

The Internet amplifies the likelihood of legal malpractice liability. Much legal malpractice liability results from either a failure to discern what a lawyer is expected to know, from a failure to convey what a lawyer is expected to communicate, and from attorney-client relationships. Since the Internet has broadened what an attorney knows or should know, has enabled new communication options for attorneys, and offers new channels for initiating an attorney-client relationship, the Internet has expanded the possibility of a breach of an attorney’s standard of conduct.

Legal malpractice often results from negligence or misconduct by an attorney sufficient to damage another because of said negligence or misconduct. Consequently, an attorney’s failure to properly consult the Internet or properly use the Internet for communications may result in an allegation of the tort of negligence.

Legal malpractice resulting from negligence is behavior that falls below the legally established standard for the protection of clients from an unreasonable risk of harm. Classically, said standard is the usual practice engaged in by an attorney. As Internet use becomes more commonplace and more sophisticated among practicing attorneys, an attorney’s standard of conduct related to Internet use becomes more demanding.

Negligent advice, fee disputes, negligence in the professional relationship and third-party claims are among the most common areas of legal malpractice. The standards of conduct for each are set by the legal profession and usually involve some form of communication. Since the Internet is regularly used by attorneys as a research, publishing, broadcasting and telecommunication system, improper use increases the likelihood of legal malpractice difficulties.

Failure to properly use the Internet may run afoul of an attorney’s ethical duty to remain competent in his research. Most state rules of professional conduct directly or indirectly include the use of the Internet in its evaluation of a lawyer’s competency. Since competency is an issue that features prominently in malpractice difficulties, improper Internet use may increase an attorney’s exposure to malpractice liability.

Along the same lines, 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). Violation of said conduct may be used to show evidence of malpractice conduct. Generally, legal malpractice and ethical violations are distinguishable. Nevertheless, ethical violations can lead directly and indirectly to legal-malpractice-related difficulties.

Some of said difficulties result from the mere failure to use the Internet in a timely fashion. The Judiciary Electronic Filing System (JEFIS) is the New Jersey courts’ system for publishing documents and images. JEFIS allows attorneys to use the Internet to file documents with the New Jersey courts. Since JEFIS is being used for Special Civil Part cases with “DC” docket numbers and foreclosure actions (see www.judiciary.state.nj.us/ jefis/updates.html), an attorney’s failure to properly use the Internet for these cases may result in legal malpractice difficulties.

For example, filing DC-docket cases through JEFIS is mandatory for all law firms that file over 400 DC complaints in the Special Civil Part per year. Accordingly, if certain attorneys fail to use JEFIS 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. Barring extraordinary circumstances, an allegation of mal-practice might arise if the failure to use JEFIS results in the failure to timely file a particular document.

The Internet is also used by the judiciary as a form of broadcast communication. In particular, the Internet was used in 2013 for case-specific and general information content distribution. Failure to use such Internet content may result in malpractice.

With respect to broadcasting specific case information, attorneys in New Jersey and elsewhere use a system known as Public Access to Court Electronic Records (PACER). It 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.

With respect to general broadcasting of content, during 2013, the New Jersey Judiciary announced its intention to expand its system for electronic filing, storage and signing of court documents, bringing the state a step closer to embracing a recent trend toward paperless court documentation. In particular, the administrative director of the New Jersey courts filed notice to the state’s bar, seeking public comments for a proposed rule to broaden the state’s electronic filing and record-keeping system. This request used the Internet as both a telecommunication and broadcasting system to give notice of the judiciary’s proposed rule. An attorney who fails to use the Internet to keep abreast of judicial announcements and/or use the Internet as instructed by said judicial announcements may face malpractice difficulties.

A lawyer has the duty, in all dealings and relations with a client, to act with honesty, good faith, fairness, integrity and fidelity. A lawyer must possess the legal skill and knowledge that is ordinarily pos­sessed by members of the profession. As Internet use interpenetrates the legal pro­fession, failure to use the Internet will be increasingly deemed evidence of a lack of legal skill and knowledge ordinarily pos­sessed by an attorney.

Any dealings that a lawyer has with a client will be carefully examined. Such dealings require fairness and honesty, and the lawyer must show that no conflict exists as a result of new and additional representations. The Internet is regularly used by attorneys to discover facts that would avoid unfair and conflicting dealing. Failure to properly consult the Internet may be sufficient to rebut a lawyer’s assertion of fairness, particularly with respect to knowl­edge of adverse legal relationships among clients and potential clients.

A lawyer also has the duty to pro­vide a client with a full, detailed and accurate account of all money and prop­erty handled for said client. The client is entitled to receive anything that the lawyer has acquired in violation of his duties to the client. The Internet habitually allows attorneys to locate and communicate with clients. Failure to properly consult the Internet for means of locating and contact­ing a client for the purposes of providing a client with a full, detailed and accurate account of all money and property handled for the client may be a basis for malprac­tice legal difficulties.

Negligent errors are most commonly associated with legal malpractice. This category is based on the premise that an attorney has committed an error that would have been avoided by a competent attorney who exercises a reasonable standard of care. Lawyers who give improper advice, improperly prepare documents, fail to file documents or make a faulty analysis may be charged with malpractice by their clients. The Internet has made information concerning legal advice, document preparation and legal analysis widely available. A legal malpractice action is more likely to succeed if the lawyer committed an error which could have been avoided by the proper use of the Internet. This is particularly true if most other attorneys would have consulted the Internet under similar circumstances. One Internet legal information service is Cornell’s LII, which serves over 18 million unique visitors each year (see www.law.cornell.edu/lii/about/about_lii last visited 12/27/2013).

Many legal malpractice claims are filed because of negligence in the professional relationship. The improper and unprofessional treatment of the attorney-client relationship leads to negligence claims. The erroneous dispatch of an email that communicates the difficulties and realities of the particular claim to a party other than the intended recipient may result in a malpractice suit initiated by discontented clients who believe that their lawyer was responsible for losing the case.

A final area of legal malpractice litigation concerns claims that do not involve a deficiency in the quality of the lawyer’s legal services provided to the client, but an injury caused to a third party because of the lawyer’s representation. This category includes tort claims filed against an attorney alleging malicious prosecution, defamation, infliction of emotional distress and other theories based on the manner in which the attorney represented the client. The proper use of the Internet may ameliorate or eliminate particular sources of this sort of liability. In particular, the Internet is a source of information that evidences the propriety of the attorney’s actions, such as the “truth” which defuses a defamation claim. The proper use of the Internet may also defuse third-party claims, which are similar to malpractice claims and which arise from various statutes, such as securities regulations, and motions for sanctions, such as under Federal Rule of Civil Procedure 11.