State Bar of Arizona Ethics Opinions

97-04: Computer Technology; Internet; Advertising and Solicitation; Confidentiality
4/1997

This opinion discusses several ethical issues with respect to lawyers using the Internet to communicate including, for example, confidentiality concerns when sending email to a client, advertising considerations for websites and the applicability of Arizona's Rules of Professional Conduct to communications disseminated from or received in Arizona [ERs 1.6, 1.7, 5.5, 7.1, 7.2, 7.3, 7.4, 7.5]

FACTS[1]

 

The State Bar of Arizona's Committee on the Rules of Professional Conduct has received several inquiries from Bar members with respect to lawyers using the Internet.  Those inquiries have included questions about law firm web sites, communicating with clients via "e-mail", and engaging in legal discussions with unknown members of the public through on-line "chat groups".  In an effort to assist Arizona Bar members in determining their ethical obligations in cyberspace, this Opinion addresses a variety of ethics questions pertaining to computerized legal communications.  This opinion does not purport, however, to address all of the ethical issues associated with lawyers using the Internet.

 

RELEVANT ETHICAL RULES

 

ER 1.6    Confidentiality of Information

ER 1.7    Conflict of Interest: General Rule

ER 5.5    Unauthorized Practice of Law

ER 7.1    Communications and Advertising Concerning

               a Lawyer's Services

ER 7.2    Legal Service Information

ER 7.3    Direct Contact with Prospective Clients

ER 7.4    Communication of Fields of Practice

ER 7.5    Firm Names and Letterheads

 

RELEVANT PRIOR OPINIONS

 

Arizona Op. 95-11 (Dec. 6, 1995)

 

OPINION

  

Several other state ethics committees have issued ethics opinions on use of computerized communications by lawyers.  The most recent ethics opinions from other jurisdictions regarding ethics and the Internet are:

 

IL. Op. 92-23   (computer referral system)

IA. Op. 96-01   (firm web sites)

MI. Op. RI-276    (direct solicitation)

NC. Ops. 239, 241   (web sites & directories)

NE. Op. 95-3   (internet referral service)

OR. Op. 94-137   (on-line legal info.)

PA. Op. 96-17   (internet)

SC. Op. 94-27   (on-line office)

TN. Op. 95-A-576   (unpublished)(e-mail)

 

These opinions, for the most part, conclude that attorney ethical rules do apply to attorney communications via the Internet. Florida and Texas also have issued guidelines, through their Advertising Committees, which confirm that lawyer solicitation via the Internet is subject to each state's ethical rules on lawyer advertising.  Tennessee has forged the next step and adopted a specific ethical rule that defines "solicit" and "written communication" as including "computer on-line transmission".  Tenn. Code of Prof. Res., DR 2-104 (adopted 3/15/96). 

 

The American Bar Association has not yet issued a formal opinion on use of the Internet by lawyers. 

 

The following are the ethical issues most frequently presented to the State Bar of Arizona's Committee on the Rules of Professional Conduct on lawyers using computerized communications:

 

1.       Is a firm "web site" considered a "communication" about a lawyer that would be subject to the ethics rules?

 

Yes.  A lawyer's web site is a "communication" about the lawyer or the lawyer's

services that is subject to the ethics rules.  Thus, all of the ethical requirements set

forth in Rules 7.1 through 7.5 apply to such communications.  Specifically, lawyers

should review the requirements of the general advertising rule, ER 7.1, which includes

the general premise that lawyer communications should be predominantly informational

(ER 7.1(b)).  ER 7.1 also includes some obscure requirements, such as: 1) a

communication must include the cities where the lawyer has offices and/or will actually

perform the work; 2) a copy of the communication must be maintained for three years;

and 3) communications that include a factual statement must be able to be

substantiated.  Communications and advertising about a lawyer's services shall not be

false or misleading, as required by ER 7.1(a).  Other general considerations when

deciding what information may be on a law firm web site are: 1) the information should

not create an unjustified expectation; 2) fee information must comply with ER 7.1(e);

3) if a firm wants to list some of its existing clients and/or include an endorsement

from an existing client, the firm must obtain the clients' consents prior to including

their identities in the web site; and 4) if the site provides links to other firms' sites,

there should be clear explanations as to whether or not the firms are affiliated (as

required by ER 7.1(p)).

 

2.       If a law firm has offices in many states, must the firm comply with Arizona ethics rules if the firm either has an office in Arizona or attorneys admitted to practice in Arizona?

 

Yes.  Pursuant to ER 8.5, if you are a member of the State Bar of Arizona, you must

follow the Arizona Model Rules of Professional Conduct, even if your advertisement will

appear, electronically, both inside and outside of the state.

 

3.       Can a "web site" use a tradename as the law firm name?

 

No.  ER 7.5 prohibits the use of tradenames for law firms.  Domain names, however,

are not firm names and thus are not subject to this limitation.

 

4.       Can a lawyer mention either in a web site or simply in responding to a question in a "chat room" that he or she specializes in water law?

 

No. Lawyers may only state that they "specialize" in an area of practice if they are so

certified by the State Bar of Arizona's Board of Legal Specialization or otherwise

authorized, pursuant to ER 7.4. Water law is not an area that is certified as a

specialty.

 

5.       Is it a violation of ER 7.3 to contact a prospective client directly via e-mail if you know that the person needs legal representation for a particular matter?

 

Maybe, unless the lawyer complies with the requirements set forth in ER 7.3.  ER 7.3

prohibits telephone and in-person solicitation.  Communication with a potential client

via cyberspace should not be considered either a prohibited telephone or in-person

contact because there is not the same element of confrontation/immediacy as with

the prohibited mediums.  A potential client reading his or her e-mail, or even

participating in a "chat room" has the option of not responding to unwanted

solicitations.

 

ER 7.3 might still apply, however, to certain computerized solicitations.  That Rule

requires certain disclosures in written communications, initiated by a lawyer, to

persons "known to need legal services of the kind provided by the lawyer in a

particular matter." ER 7.3(b)(emphasis added).  In order for this portion of ER 7.3 to

apply to a computerized solicitation, the following elements would be necessary:

 

          1) the lawyer must initiate the contact (thus, lawyer responses to questions posed by potential clients in "chat rooms" or inquiries sent directly to a particular lawyer would not need to comply with this rule); and

 

          2) the potential client would have to have a known legal need for a particular matter. Thus, for instance, solicitations sent to all members of an environmental listserve would not be affected because those members might be interested in environmental issues but not necessarily have a need for representation in a particular environmental case. 

 

If those elements exist, then the lawyer must comply with the disclosure obligations

set forth in ER 7.3(b).  Part of that disclosure obligation requires that such written

communications:

 

          "be clearly marked on the envelope and on the first page of the communication contained in the envelope as follows: ADVERTISING MATERIAL: THIS IS A COMMERCIAL SOLICITATION.  Said notification shall be printed in red ink, in all capital letters, in type size at least double the largest type size used in the body of the communication."

 

These requirements pose a slight application dilemma for electronically transmitted

solicitations; how will an attorney mark an e-mail envelope and contents with the

requisite disclaimer - in red ink?  If technologically feasible, lawyers should make

reasonable efforts to comply with this requirement and send a copy of their

communications, as required by ER 7.3(c), to the Clerk of the Supreme Court and the

State Bar.  Absent further clarification of these requirements by the Arizona Supreme

Court, this Committee suggests that practitioners, at a minimum, include the disclaimer

language in all capital letters on the e-mail "subject" line and in the body of the

communication.

 

6.       Should lawyers answer specific legal questions posed in "chat rooms" or "news groups"?

 

Probably not because of both the inability to screen for a potential conflict with an

existing client (in violation of ER 1.7) and the possibility of disclosing confidential

information (in violation of ER 1.6).  In Formal Opinions 87-23 and 92-10, which pertain

to lawyers giving legal seminars to lay people, one of the guidelines suggested by this

Committee was that lawyers should not answer specific legal questions from the

audience.  Ethically, it would follow that lawyers should not answer specific legal

questions from lay people through the Internet unless the question presented is of a

general nature and the advice given is not fact-specific.

 

Lawyers may, however, provide articles or newsletters to individuals on the Internet or

in their web sites, just as lawyers currently may disseminate general information on

particular legal topics through firm white papers and brochures.

 

7.       May a lawyer join an on-line lawyer referral service?

 

Probably not unless the service is in compliance with ER 7.1(r)(3), which requires

that the referral service be "operated, sponsored, or approved by a bar association". 

At present that would require approval by the State Bar of Arizona.  There are no on-

line referral services currently approved by the State Bar.

 

8.       Should lawyers communicate with existing clients, via e-mail, about confidential matters?

 

Maybe.  Lawyers may want to have the e-mail encrypted with a password known only

to the lawyer and the client so that there is no inadvertent disclosure of confidential

information.  Alternatively, there is encryption software available to secure

transmissions.  E-mail should not be considered a "sealed" mode of transmission.  See

American Civil Liberties Union v. Reno, 929 F.Supp. 824, 834 (E.D.Pa 1996).  At a

minimum, e-mail transmissions to clients should include a cautionary statement either

in the "re" line or beginning of the communication, indicating that the transmission is

"confidential" "Attorney/Client Privileged", similar to the cautionary language currently

used on facsimile transmittals.  Lawyers also may want to caution clients about

transmitting highly sensitive information via e-mail if the e-mail is not encrypted or

otherwise secure from unwanted interception.  One state ethics opinion went so far as

to require that lawyers obtain a written consent from clients before transmitting

sensitive information via e-mail.  Iowa Supreme Court Board of Professional Ethics and

Conduct Op. 96-01 (8/29/96).  Such a written waiver, according to the Opinion, must

disclose the risks associated with e-mail.

 

These recommendations are consistent with this Committee's prior Formal Op. 95-11

regarding use of cellular phones by lawyers.  In that Opinion, the Committee cautioned

lawyers against discussing sensitive information via a cellular phone even though the

interception of such a conversation would be illegal.  The Opinion stated, however,

that it is not unethical for a lawyer to communicate with a client via cellular phone. 

Similarly with e-mail, it is not unethical to communicate with a client via e-mail even if

the e-mail is not encrypted; this Committee simply suggests that it is preferable to

protect the attorney/client communications to the extent it is practical.  Lawyers also

are reminded that e-mail records may be discoverable, including the records of time

and date of transmission and recipients.   This information thus should be included in

the lawyer's decision as to whether or not confidential information should be

communicated via e-mail.

 

9.       May lawyers place on-line intake forms for prospective clients on their web sites and, if so, may the client respond via the web site?

 

Probably.  Placing the forms on the web site, for clients to download and complete

off-line is ethically permissible because: 1) there is no unethical solicitation involved;

and 2) there is no communication of confidential information through cyberspace.  As

noted above, prospective clients should be cautioned to avoid possible inadvertent

disclosures of confidential information, and thus prospective clients should not be able

to send the completed form electronically.

 

10.     Do lawyers need to submit a copy of their web sites to the State Bar and the Supreme Court pursuant to ER 7.3?

 

Probably not.  Web sites probably will not fall within the requirements of ER 7.3,

which requires lawyers to submit a copy of all direct mail solicitation letters to the

State Bar and the Supreme Court.  Lawyers only need to send copies of direct mail

correspondence to the Bar and the Court when the solicitation is sent to a prospective

client who has a known need for legal services for a particular matter.  Presumably

web sites are designed to provide general information about a law firm and are not

sent directly to certain prospective clients and thus do not need to follow ER 7.3.

 

11.     Do lawyers need to keep a copy of their web sites and any changes that they make to their web sites pursuant to ER 7.1(o)?

 

Yes.  Lawyers need to keep a copy of their web sites in some retrievable format for three years after dissemination along with a record of when and where the web site was used.  Additionally, if there is a material substantive change to the web site, the lawyer should retain a copy of all material changes as well.



[1]Formal Opinions of the Committee on the Rules of Professional Conduct are advisory in nature only and are not binding in any disciplinary or other legal proceedings.  © State Bar of Arizona 1997