The Ethics Of Practicing Law On The Internet: Advertising, Client Confidentiality And Avoiding The Unauthorized Practice Of Law
As law firms and lawyers become increasingly reliant on the internet, they must educate themselves about the ethical issues arising through use of the internet. The following outline provides some guidance for law firms and lawyers that utilize the internet to advertise, solicit, practice and communicate.
a. General Rules Regarding Advertising
i. Lawyer advertising permissible through written, recorded or electronic communication provided it is not false, deceptive or misleading. DR 2-101, Model Rule 7.1, 7.2.
The public’s right to receive truthful and non-deceptive information about a lawyer is the primary justification for permitting lawyer advertisements.
Bates v. State Bar, 433 US 350 (1979). However, this protection cannot extend to speech that is deceptive. One also cannot guarantee the outcome of a case, and it could also constitute exaggerated or outlandish puffery if a lawyer claimed to be the “leading” or “most successful” lawyer in New York City. However, it might be appropriate to say things such as “prompt and efficient service” or “insightful advice.”
Truthful statements that could mislead are also prohibited under Model Rule 7.1. An advertisement that truthfully reports a lawyer’s successful cases can be misleading if it gives an impression that it could lead to the same result for others without reference to the specific factual and legal circumstances of each client’s case. Comment to Model Rule 7.1.
The following are some general rules governing lawyer advertising:
· Lawyer may identify area of practice, but cannot state that s/he is a specialist, unless recognized or certified as a specialist. DR 2-105, Model Rule 7.4.
· All broadcast advertisements in New York must be retained for a period of one year, including web sites. DR 2-101(F).
· All advertisements that are mailed or distributed shall be filed with the Departmental Disciplinary Committee in New York. DR 2-101(F)(1) to (5).
b. Advertising on the internet
i. Domain names for firm web sites must comply with the rules for advertising under DR 2-101.
Often times, lawyers and law firms create web sites as a means to advertise their legal services. When a lawyer or law firm creates a web site, the domain name for the web site is governed by DR 2-101, pertaining to advertising, as opposed to DR 2-102(B), pertaining to firm names, signs and letterheads. N.Y.City Bar Op. 2003-01 (2003). This, therefore, allows the lawyer or firm to “employ a domain name that does not include the names of lawyers.” N.Y.City Bar Op. 2003-01 (2003). So long as (1) the lawyer or firm does not attempt to practice law using the domain name, (2) the domain name is not false deceptive or misleading, and (3) the domain name does not indicate that the firm or lawyer has special expertise or competence, then the firm or lawyer can establish such a domain name without fear that it is violating the Code.
ii. The content of firm web sites is governed under rules governing lawyer advertisements as well as legal practice.
The prudent lawyer should ensure that the web site is maintained as an advertisement or as a means to provide general legal information. Under the rules for advertising, the web site must include “the name, office address and telephone number of the attorney or law firm whose services are being offered.” DR 2-101(K). The web site must also have the requisite disclaimers so clients do not have “unjustified expectations” regarding results. N.Y. State Op. 771 (2003). For example, if client testimonials are used on the site, there should be a disclaimer indicating that the same results are not guaranteed.
Law firms and lawyers must also maintain a copy of their web sites for at least one year, but need not file the copies with the Departmental Disciplinary Committee. N.Y. City Bar Op 1998-02 (1998), DR 2-101(F). This demand, while unlikely to be enforced, presents a significant logistical problem for even the most technologically advanced firms. Under this rule, firms that continually update their web sites will be expected to retain a copy of every page ever uploaded for one year. Firms that have news tickers that constantly upload new information to the site will have a more difficult time complying with this rule. Often times, the information found on “tickers” is automatically uploaded from information found on another web site. Therefore, it is possible that the firm is unaware of what headlines are scrolling across its web page. The New York State Bar has yet to address this issue, and thus, it is probably best to avoid the use of “tickers” on law firm web sites. The easiest way to comply with the rule is to maintain complete control over what substance is uploaded to the web site.
If the web site also serves as a vehicle for the practice of law and is New York based, it must have a Statement of Clients Rights and Responsibilities pursuant to 22 N.Y.C.R.R. 1210.1, as well as a conflicts check system pursuant to DR 5-105(E). Thus, a lawyer may advertise and operate a trademark practice over the Internet if the lawyer has taken the following precautions: 1) developed a system to screen for conflicts; 2) preserved client confidences and secrets; and 3) complied with the advertising rules of New York and other jurisdictions where the lawyer intended to conduct business. New York State Bar Ethics Op. 709 (1998).
Further, in accordance with DR 3-102, lawyers and firms may not pay a fee to an “[i]nternet service provider based on the fees earned by the Law Firm from the provision of on-line legal service.” N.Y. City Bar Op 1998-02 (1998). DR 3-102 provides that a lawyer or law firm cannot share legal fees with non-lawyers. If an internet service provider administers the programs that enable legal practice over the internet (e.g. trademark search engines), the lawyer or law firm should pay administrative fees only. Lawyers and law firms should make sure that the fee is not based on the business generated.
The rules regarding advertising and fee sharing also come into play when a law firm or lawyer provides a link to its web site on an internet directory (i.e. Martindale-Hubbell Lawyer Locater or Findlaw.com). Paying to have a listing on an internet directory is permissible in New York and does not violate § 479 of N.Y Judiciary Law, forbidding the payment of a non-lawyer to solicit clients. Nassau County Bar Assoc. Op. 99-3 (1999). If anything, it is considered an advertisement. Lawyers, however, need to be cautious when using internet listings or directories. First, they should make sure that fee for the listing is based on administrative costs and not on the business procured from the listing. Second, lawyers should be careful when they pay more money so that their firm can be placed at the top of the list. According to Nassau County Bar Association Opinion 99-3 (1999), firms paying more to be placed at the top of the list should be cautious about how the directory describes them. The description of the firm should be neutral and should not give visitors to the directory an impression that the firm is somehow more exceptional. Third, lawyers should only accept clients from states in which the lawyer is admitted to practice.
On the other hand, a lawyer may respond to an invitation to submit bids for legal projects over the internet sponsored by a profit-making business that facilitates the posting of legal projects on behalf of potential clients on a website. According to N.Y. City Bar Opinion 2000-1 (2001), such bidding by lawyers is neither “advertising” nor “solicitation” since the prospective client has requested bids from lawyers and no fee is paid to the business. In the instant matter, the business directly charged the prospective client for the posting.
c. Solicitation on the Internet
i. In-person or telephone solicitation is prohibited, except from close friend, relative, former client or current client. DR 2-103(A)(1), Model Rule 7.3. Written solicitation is permissible, unless prospective client has made known a desire not to be solicited, or solicitation involves coercion, duress, etc. DR 2-103(A)(2).
A prudent lawyer should take extra precautions when soliciting professional employment over the internet. In New York, the Code makes no reference to solicitation via targeted e-mails, instant messages and chat room discussions. Rule 7.3(a) of the ABA Model Rules, however, provides some guidance on this matter. It draws a distinction between “electronic communications” and “real-time electronic contact.” Electronic communications, or e-mails, are governed under the rules for written solicitation. Like written, first class mail solicitations, e-mail solicitations do not place the potential client on the spot. They allow the recipient to make his/her own decision on his/her own time, and thus protect the potential client from coercion. On the other hand, real-time electronic communication, or instant messages and chat room discussions, have the capability of putting clients on the spot and making them feel coerced. For this reason, the Model Rules couples real-time communications with oral and in person solicitation.
As noted, the New York Professional Code has yet to speak directly to e-mail, instant message and chat room solicitation. The Model Rules speak directly to this, but they merely provide guidance to the New York lawyer. For this reason, the prudent lawyer practicing in New York should be cautious when engaging in internet solicitation. Until the New York Code becomes clear on this matter, it is probably wise to refrain from any on-line solicitation, be it real-time or e-mail. Those willing to take risks should just refrain from real-time communications.
II. RISK OF ENGAGING IN THE UNAUTHORIZED PRACTICE OF LAW
a. Reach of a lawyer’s advertisement
Firm web sites and advertisements are easily accessible across state lines. In New York, according to N.Y. State Bar Opinion 709 (1998), there is no ethical prohibition against advertising to clients who reside outside the state of New York with respect to matters which a lawyer may competently and lawfully practice. However, it is very important to inform potential clients about the jurisdiction in which the attorney is licensed. Thus, when advertising on the Internet crosses state lines, the New York lawyer should attempt to comply with the advertising rules or regulations applicable to lawyers in other states.
i. Make sure that the practice of law in another state does not violate that state’s laws regarding unauthorized practice. Under DR 3-101(B), a lawyer shall not practice law in a jurisdiction….in violation of regulations of the profession in that jurisdiction.
When a law firm advertises on the web or simply uploads its firm web site, that firm becomes susceptible to the unauthorized practice of law. People across state lines are likely to access those advertisements or web sites and then e-mail or contact the firm requesting legal advice. To what extent then can a lawyer advise clients in states in which the lawyer is not licensed? This is a murky area as each state may have its own rules concerning the regulation of out of state lawyers. The general rule is that a New York admitted lawyer can only practice law in another jurisdiction if it is permissible in that jurisdiction. N.Y. State Op. 709 (1998).
The following two cases exemplify what California and New York consider the unauthorized practice of law. In
Birbower, Montalbano, Condon & Frank P.C. v. Superior Court, 17 Cal. 4th 119, as modified at 17 Cal 4th 643a, cert. denied, 119 S. Ct. 291 (1998), a New York law firm was not entitled to recover part of its fees for services rendered to a California client because the firm had engaged in the unauthorized practice of law in California. The New York law firm advised a California client regarding California laws in connection with arbitration proceedings to be held in California without involving local California counsel. This was in violation of §6125 of California Business and Professional Code.
In contrast, the New York Court of Appeals held in El Gemayal v. Seaman, 72 N.Y.2d 701 (1988) that the lawyer in question did not engage in the unauthorized practice of law. In that case, a Lebanese lawyer rendered advice to a New York client only by telephone and never traveled to New York except to return some personal items and discuss fees. The court held that he was not engaged in the unauthorized practice of law because his physical presence in NY was “incidental and innocuous”. Conversely, a New York attorney may represent a client residing in Florida to draft estate planning documents in association with a Florida counsel to ensure that the documents comply with Florida law. Nassau County Bar Op. 98-8 (1998).
This issue, which obviously has been grappled with by different states, may be less problematic for lawyers involved in federal practice. For example, according to 8 CFR §§ 292.1(a)(1) and 1.1(f), an immigration lawyer who “is a member in good standing of the bar of the highest court of any State, possessing territory, Commonwealth, or the District of Columbia, and is not under any order of any court suspending enjoining, restraining, disbarring or otherwise restricting him in the practice of law” to represent a person before the relevant federal agencies responsible for administering or enforcing federal immigration law.
With trademark lawyers – also lawyers engaged in federal practice – the answer as to what constitutes the unauthorized practice of law is not as clear. In N.Y. City Bar Opinion 1998-02 (1998), it was determined that even though non-lawyers can permissibly provide cross-border trademark searches without fear of engaging in the practice of law, lawyers who provide the same service may be subject to discipline for engaging in such activities.
Id. Whether cross-border trademark searches qualify as the unauthorized practice of law will be determined by the rules of the searching party’s jurisdiction. New York State Bar Opinion 709 (1998),
supra, provides a similar analysis. There, it was determined that New York trademark lawyers should not concern themselves with New York professional responsibility rules when providing trademark search services on the internet. The opinion notes that “lawyers licensed in one state may appropriately render legal services to clients resident elsewhere in many circumstances.” Rather, the determination as to what constitutes the unauthorized practice of law is determined by the “laws and rules of the other jurisdiction.”
The ABA is attempting to provide some clarity to this issue of the unauthorized practice of law. In July 2000, the ABA created the Commission on Multijurisdictional Practice. The Commission was established because, increasingly, clients from one state are seeking advice and services from lawyers in other states. Similarly, clients and lawyers from the same state may seek to engage in a transaction in another state. So, for example, an out of state client may contact a New York lawyer seeking advice regarding the establishment of a New York corporation. Also for example, a New York client might contact his/her New York lawyer seeking advice about establishing a Delaware corporation.
In 2002, the Commission made a proposal to resolve this problem. It recommended Model Rule 5.5 which was subsequently adopted by the ABA. Model Rule 5.5, which focuses on the unauthorized practice of law and multijurisdictional practice, makes it easier for lawyers to practice in other states if their practice there is temporary. So long as the lawyer does not hold him/herself out as a licensed attorney in the jurisdiction, the lawyer can provide temporary services if: (1)he/she provides them in association with a lawyer admitted in that jurisdiction; (2) the services are related to a pending proceeding in which the lawyer or an associated lawyer are authorized to appear; (3) the services are related to arbitration or mediation, are related to his/her practice and do not require pro hac vice admission; or (4) the services arise out of or are related to the lawyer’s current practice. ABA Model Rule 5.5(c). Model Rule 5.5 also provides leeway to lawyers working in-house for corporations or working on federal matters. ABA Model Rule 5.5 (d).
The Model Rule broadens the case law and ethics opinions cited above. New York lawyers should familiarize themselves with it as the New York State Bar Association is making efforts to amend DR 3-101(B) so that it reflects the language and sentiment of the Model Rule. If adopted, it will be easier for non-New York lawyers to provide temporary legal services in New York. Still, adoption of the rule will not necessarily protect the New York lawyer from discipline based on the unauthorized practice of law. New York lawyers will only benefit from this liberal rule if they practice law in a jurisdiction that has adopted the Model Rule. Thus far, Colorado, Delaware, Nevada, New Jersey, North Carolina, Pennsylvania, South Dakota, Virginia and the District of Columbia have adopted it. See
Introduction to Canon 3, Simon’s New York Code of Professional Responsibility Ann. (2004).
Until there is a broad agreement on multijuridictional practice, the lawyer may be susceptible to disciplinary action if his/her website does not comply with the advertising rules of a particular state. It is therefore advisable for the lawyer to include the following on his/her website: 1) an explanation of where the attorney is admitted to practice law; 2) a description of where the attorney maintains offices and actually practices law; 3) an explanation of any limitation on the courts in which the attorney is willing to appear; 4) a statement that the attorney does not seek to practice in jurisdictions here he/she is not admitted to practice; and 5) an attorney-client relationship will not be established solely on the basis of a visit to the attorney’s website. See James M. McCauley,
Professional Responsibility Issues for Marketing and Providing Legal Services over the
Internet, Virginia Lawyer Register, May 2002.
III. ATTORNEY/CLIENT RELATIONSHIP
a. Establishing the Relationship via E-mail Communications
An attorney/client relationship can start before you know it! An express contract is not required, nor is a payment of fees. Lawyers often get unsolicited e-mails. Some lawyers do not respond. Others respond with a short answer, inviting the inquirer to schedule a consultation. The following are precautions a lawyer should take during e-mail contacts:
• In an E-mail contact, make sure that advice given does not constitute representation.
• Consider adding this Disclaimer: “This information is generalized and should not be relied upon as legal advice; and this communication does not create an attorney-client relationship.” [See Hake, Some Professional Responsibility Issues in Law Frim Management, Ethics And Your Immigration Practice: Have You Considered...(Capra, Engineer, Marcouiller, eds.), AILA ] [Ed. added 5/6/05]
• Ensure e-mail communications are secure, use disclaimer to protect confidentiality of information, and avoid impulsive responses.
If an attorney responds in a way that would constitute an attorney/client relationship, all the rules governing such a relationship would trigger a duty of confidentiality under DR 4-101. The lawyer will have to competently represent the client as well assure that there is no conflict, and incorporate e-mail contacts under the system that an attorney has to maintain to check conflicts. DR 5-105(E).
The prudent lawyer, obviously, would prefer to avoid an attorney/client relationship in casual e-mail contacts, and this is ever so important when the lawyer takes part in a question-answer session in an internet chat session. In such a context, especially in a chat session, the lawyer must be careful to avoid impermissible advertising or solicitation.
Conflicts issues set forth in DR 5-105 become very real during internet communications. The Committee on Professional and Judicial Ethics of the New York City Bar Association addressed this and held that a lawyer who receives a “unilateral, unsolicited” e-mail from a prospective client is not “disqualified from representing an existing client” in matters adverse to the prospective client. N.Y. City Bar Op. 2000-1 (2001). The Committee made a distinction in its opinion between e-mail communication and “discussions.” Examples of “discussions” include in-office or telephone consultations. This distinction between e-mail and discussions should put lawyers on alert regarding questions posed inside internet chat rooms. As chat rooms involve real-time communication, they may be considered discussions. For this reason, lawyers talking in open chat rooms should avoid people who disclose confidences or secrets.
b. Confidentiality and Privilege
Once an attorney-client relationship is established, information arising from that relationship is confidential. There are two types of rules protecting confidentiality. The first is the attorney/client privilege under applicable law, which is more limited, and protects any communication between the lawyer and the client when requested in a judicial or administrative proceeding. The ethical rule protecting confidentiality is broader, and protects all information gained during the lawyer-client relationship, even though it may not be protected under the lawyer-client privilege. In New York, the rule protects both confidences and secrets. DR 4-101. So, the client may reveal certain embarrassing secrets about him/herself, which may be tangential to the lawyer’s representation of the client, but those secrets are nevertheless protected under ethical rule governing confidentiality.
c. Use of Unsolicited E-mail Communication
May an attorney who receives an unsolicited electronic communication from a prospective client disclose the unsolicited information to the existing client or use it against the prospective client? Is that unsolicited communication protected by attorney/client privilege? These questions are also addressed in N.Y. City Bar Op. 2000-1 (2001). According to the opinion, the attorney/client privilege protects not only communications between a lawyer and a client, but also communications between a lawyer and one who “sought to become a client.”
People v. Belge, 59 A.D.2d 307, 308, 309 N.Y.S.2d 539 (4th Dept. 1977). The situation changes where the client could not reasonably have been seeking to employ the attorney because, for example, the attorney has already declined the representation in question or the prospective client knows the lawyer is representing an adverse party. In such instances, no privilege attaches. However, “prospective clients who approach lawyers in good faith for the purpose of seeking legal advice should not suffer even if they labor under the misapprehension that information unilaterally sent will be kept confidential. Although such a belief may be ill conceived or even careless, unless the prospective client is specifically and conspicuously warned not to send such information, the information should not be turned against her.” If the prospective client has communicated through the client’s web site, the attorney/client privilege would only be vitiated if there was a prominent disclaimer specifically warning prospective clients not to send any confidential information because nothing will be treated as confidential until the prospective client has spoken to an attorney who has completed a conflicts check. If the disclaimer is not clear or prominent, the e-mail must be treated as confidential and must not be disclosed to the existing client.
d. Maintaining Attorney/Client Confidentiality in E-mail Communications
i. A communication sent via e-mail does not lose privileged status. N.Y. C.P.L.R. § 4548. Further, it does not violate the attorney’s duty of confidentiality. ABA Form. Op. 99-413 (1999).
Does a communication lose its privileged status if sent via e-mail? Does a lawyer violate his/her duty of confidentiality by sending communications via e-mail? Under New York Law, an e-mail communication sent between an attorney and a client does not lose its
privileged status merely because it is subject to interception. NY CPLR §4548. Further, such e-mails do not breach an attorney’s duty to maintain confidences and secrets. N.Y. State Op. 709 (1998). It should be noted that e-mail communication need not be encrypted in order to maintain either privilege or confidentiality. N.Y. State Op. 709 (1998), ABA Formal Opinion 99-413 (1999).
Still, while e-mail communication remains confidential, a prudent lawyer should take special care when sending e-mails because there is a heightened risk of interception. It would also be wise for a lawyer to advise clients and prospective clients that communicating via e-mail is not as secure as other forms of communication. N.Y. City Bar Op. 1998-2 (1998). Lawyers should “stay abreast of this evolving technology [e-mail] to assess any changes in the likelihood of interception as well as the availability of improved technologies that may reduce such risks at reasonable costs.” N.Y. State Op. 709 (1998)
ii. A lawyer who receives misdirected e-mail communication should notify, return and refrain from review of inadvertent disclosures. N.Y. City Bar. Op. 2003-04 (2003).
What are the ethical obligations of the lawyer who receives a misdirected e-mail containing confidences or secrets? A receiving lawyer’s has few obligations under the ABA Model Rules. ABA Rule 4.4 (b) provides: “A lawyer who receives a document relating to the representation of the lawyer’s client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.” It should be noted that this rule does not require the lawyer to take any steps beyond notifying the sender.
The prudent lawyer in New York is required to take steps beyond those outlined by the Model Rules. In New York, a lawyer who receives a misdirected e-mail communication is obliged to notify the sending attorney, refrain from further review of the e-mail, and return or destroy it, “particularly when considering the duties of a lawyer not to engage in conduct prejudicial to the administration of justice, to preserve client confidences and secrets and to represent clients with zeal but within the confines of the law.” N.Y. City Bar. Op. 2003-04 (2003). This broad obligation, however, does not go so far as to completely prohibit the use of misdirected e-mails. The receiving attorney can use the information contained in the misdirected e-mail if he/she “has a good faith basis to argue that inadvertent disclosure has resulted in waiver of a privilege or where the receiving attorney has been exposed to confidential information prior to knowing or having reason to know that the communication was misdirected.” Id. Regardless of whether a receiving attorney can use the information in the misdirected e-mail, he/she must still notify the sending attorney of inadvertent communication and comply with the directives of the sending attorney.
Simon’s New York Code of Professional Responsibility Annotated, 2004 Edition
Annotated Model Rules of Professional Conduct, Fifth Edition, American Bar Association
For ethics opinions interpreting the New York Code of Professional Responsibility, see
This article originally appeared on http://www.cyrusmehta.com/.
About The Author
Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City. He is the Chair of the Board of Trustees of the American Immigration Law Foundation (AILF) and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Secretary of the Association of the Bar of the City of New York (ABCNY) and former Chair of the Committee on Immigration and Nationality Law of the same Association. The views expressed in this article do not necessarily represent the views of ABCNY or AILF. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted in New York at 212-425-0555.
Elizabeth T. Reichard is an Associate at Cyrus D. Mehta and Associates, P.L.L.C. She passed the July 2004 New York Bar Exam and is currently awaiting admission to practice law in New York. She is a 2004 graduate of Case Western Reserve University Law School, where she was the Editor-in-Chief of the Journal of International Law. She is the Secretary of the Board of Trustees of International Partners in Mission, an international non-profit organization working to empower women, children, and youth.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
Share this page
Bookmark this page
The leading immigration law publisher - over 50000 pages of free information!
© Copyright 1995- American Immigration LLC, ILW.COM