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Ethics in the Digital Age Conflict can lie just below the surface of online communication. By David Hricik |
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By its very nature, digital technology and the Internet allow rapid transmission of information and instant communication. While convenient, those strengths also present risks to law firms. The Internet allows lawyers to send and receive information quickly and in great quantity through e-mail, participation in chat rooms and by posting newsletters and other Web-based materials for clients, prospective clients and the public to read. A click of a button can deliver a file cabinet full of documents. Conflicts in the digital age are more likely to arise than you might think. Understanding and addressing these concerns can help keep your firm from inadvertently crossing ethical lines on the Internet.
Warnings Are Not Enough As a result, many firms require each prospective client to agree in writing that only those lawyers who actually receive information from the prospective client — not the entire firm — will be disqualified from serving as opposing counsel to the prospective client. Comment 5 to rule 1.18 of the American Bar Association Model Rules of Professional Conduct states: “A lawyer may condition conversations with a prospective client on the person’s informed consent that no information disclosed during the consultation will prohibit the lawyer from representing a different client in the matter.” Thus, lawyers can use an effective agreement in advance and still be able to represent a different client in the same matter later. The Internet creates greater opportunity for receipt of disqualifying information. Potential clients now easily can send e-mail disclosing important confidential information. A putative client browsing a firm’s Web site can choose to send the firm an e-mail explaining the case, discuss its potential strengths and weaknesses, and ask for a meeting. An e-mail is sent instantaneously and opened in full at once. Thus, a lawyer is more likely to be exposed to disqualifying information before having the chance to conduct a conflicts check. Is opening an e-mail the same as opening the front door of the firm and welcoming in a potential new client? The authorities addressing the issue suggest law firms maintaining Web sites must do the same thing done in the real world: effectively disclaim any duty of confidentiality. A 2002 Arizona Bar Association ethics opinion cautioned “If the attorney maintains a Web site without any express limitations on forming an attorney-client relation, or disclaimers explaining that information provided or received by would-be clients will not be held confidential,” then the lawyer has implicitly agreed to consider forming an attorney-client relationship with those who transmit e-mail, and can be disqualified from representing opposing parties just as in the real world. Reaching similar conclusions, regarding People v. O’Connor (1982), the Association of the Bar of the City of New York reasoned that “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 [him or] her.” However, simply posting passive terms accessible only through a “disclaimer” or “legal notice” link on the bottom of a Web page isn’t enough. In the general context of Web contracting, terms that are merely somewhere on a Web site are not part of a contract formed by a Web site user, according to the courts.
Warnings That Work Proving a user has read and agreed to the terms is only the beginning. The language of the agreement must be precisely drawn, saying no more and no less than what is necessary. For example, some law firm Web sites have disclaimers that say any information transmitted prior to the written agreement of the firm to represent the transmitting party will not be held in confidence. While a client who agrees to such terms would be precluded from disqualifying the recipient, such language might go too far. Suppose after receiving an unsolicited disclosure of key information, the firm decides to go ahead and represent that client. Can the client claim privilege over that initial communication in the dispute? In most jurisdictions, the answer would ostensibly be “no” since the client knew the information would not be held in confidence when he or she transmitted it. Here is a model of a well-written disclaimer: E-mail addresses of our attorneys are not provided as a means for prospective clients to contact our firm or to submit information to us. By clicking “accept,” you acknowledge that [law firm name here] has no obligation to maintain the confidentiality of any information you submit to us unless we already have agreed to represent you or we later agree to do so. Thus, we can represent a party in a matter adverse to you even if the information you submit to us could be used against you in that matter.
Intentional Disclosure For example, a client could use a firm’s article against it with the argument that the firm failed to follow its own advice in representing the client. This already has happened in the real world. A plaintiff brought a legal malpractice case against her former lawyer, arguing he was negligent by not hiring an expert witness for her case. The trial court admitted an article written by that lawyer, which stated that a lawyer should “always” hire an expert in cases similar to the one he had handled for her. But that is the only reported case I know of involving adverse use of an article against an attorney-author. An article posted on the Web also could be quoted back against the lawyer’s clients. Since the article would be written by the lawyer, not the client, it seems unlikely it would be admissible against a lawyer’s client under most circumstances. However, I have seen the writings of a lawyer used against a client in briefs and motions to great effect. Articles create other risks. Lawyers serving as experts could be impeached by having their articles used against them in depositions and at hearings outside the presence of the jury. Another possibility is third-party malpractice claims, where a third party claims to have relied on “legal advice” contained in an online article. However, I am unaware of any reported case in which an attorney was sued for allegedly giving incorrect legal advice in an article. Obviously, concerns arising from the presence of articles on Web sites come about the same way when a lawyer writes and publishes an article on paper. There is no attorney-client relationship created when someone reads a book. Statements about the law in a book are not tailored to specific factual circumstances and likely doesn’t constitute “legal advice.” Even so, the ease of accessibility on the Internet increases the likelihood these issues will arise. To avoid this possibility, many lawyer-authors now put disclaimers in their works, warning the reader not to rely on them for legal advice. One proposed model form, written by Ellen Claire Newcomer and Gregory W. Black in “Liability for Errors and Omissions in CLE Speeches and Publications” 37 CLE J. & Reg. 5, 5 (January 1991) reads: This book is presented with the understanding that the publisher does not render any legal, accounting, or other professional service. Due to the rapidly changing nature of the law, information contained in this publication may become outdated. As a result, an attorney using this material must always research original sources of authority and update this information to ensure accuracy when dealing with a specific client’s legal matters. In no event will the authors, the reviewers, or the publisher be liable for any direct, indirect, or consequential damages resulting from the use of this material. Including a disclaimer such as this in Web-based articles seems prudent. It also would be wise to include a statement that the article doesn’t reflect the views of the author’s firm or client. Finally, to be effective, it might be necessary for the site to require users to affirmatively agree to the terms of the disclaimer. As previously noted, without an affirmative “click” indicating acceptance, the disclaimer might not be a part of the “contract” with the site’s user.
Chat Rooms, Bulletin Boards and Listservs Chat rooms allow for synchronous, real-time conversation, while bulletin boards and Listservs generally allow asynchronous communication — the former through the Web, the latter generally through e-mail. Each of these technologies can be compared to nonelectronic situations. They are somewhat similar to exchanges that might occur at a Continuing Legal Eduction meeting or in casual cocktail party discussions. However, they differ in two important ways: First, the number of participants and the frequency of interaction differs. For example, one Listserv I am on has several dozen participants, each of whom is deeply involved in legal ethics issues. On a daily basis, the Internet allows for the exchange of ideas and information among these people. In the analog world, such an exchange could take place only on rare, isolated occasions. In essence, there is a symposium every day because of the Listserv. Opposing counsel or opposing parties also might participate on it. Again, it could be that on a daily basis, lawyers are in communication with opposing parties discussing subject matters that interest them. Second, the dialog is not ephemeral. What might be said at a cocktail party will not be recorded. Even an answer given in response to a question at a CLE conference might not be recorded. In contrast, what occurs in chat rooms, on bulletin boards and on Listservs often is maintained in digital form on the Web itself — and that record often is searchable. For example, one law review article I came across quotes a post I made to a Listserv many years ago. These differences suggest the need for greater caution. While there have been very few difficulties prior to the advent of the Internet, those two differences might suggest the Internet creates greater risk. Only a few bar opinions have addressed the ethical issues arising from posting responses to third-party questions on message boards or Listservs. Their conclusions suggest lawyers should be extremely detailed in their disclosures and even take pre-emptive action when reading questions posed that might reveal confidences of the poster’s client. The North Carolina State Bar analyzed whether a law firm could answer questions posted by third parties on a company’s Web site. The company paid a fee to the firm for doing so. The opinion concluded that the lawyers could answer questions, but they must adhere to the following rules:
The North Carolina opinion recognizes that attorney-client relationships can be formed in cyberspace just as readily — and unthinkingly — as they can be in real life. In a later opinion, the New Mexico Bar Association addressed various aspects of Listservs and related technologies. In addition to focusing on some of the same issues as the North Carolina opinion, the New Mexico opinion emphasized the lawyer’s duty to avoid soliciting disclosure of confidences from those who post questions on the Listserv. The opinion explained: On the outset, the Committee recognizes that the party placing the question on the Listserve [SIC] has already divulged information in a less than private setting. As such, the confidentiality of any information in an initial query is unlikely to exist. However, the party’s expectation of privacy may be based upon a misunderstanding of the nature of the Listserve. The expectation of privacy may exist, rightly or wrongly, in the mind of the party. Any lawyer proceeding to respond to such a question should be mindful of this and cautious with regard to any response. Specifically, the lawyer should not respond in any fashion which solicits additional information of a confidential character. Specific questions (i.e., “I have failed to inform my partners of my borrowing of funds from the partnership. What do I do now?”) create more difficult situations. By making legal information available on its Listserv, lawyers might unintentionally encourage users to post confidential information there, thereby causing the information to lose its confidential character. The Internet remains a relatively new frontier. To date, there remains varying concepts of the level of privacy Internet users are afforded. According to the New Mexico opinion, attorneys involved in such a Listserv arrangement to insist that the Listserv administrator clearly and unambiguously inform users that any material placed on the service will or can lose its confidential character. These opinions suggest that lawyers who provide “advice” to a Listserv must be careful not to create an attorney-client relationship with the recipient, and merely posting a “disclaimer” might not always be sufficient. Likewise, they suggest an attorney should consider the question of confidentiality before posting information. Clearly, firms should consider establishing policies that cover lawyers’ use of chat rooms, e-mail, Web sites and the like, to reduce the likelihood of poor client relations, if nothing else. Although the risks of the tools of the Internet might not always be apparent, educating the firm’s employees about them is essential. |
| DAVID HRICIK is an assistant professor of law at Mercer University School of Law in Macon, Ga., where he teaches legal ethics and Internet law. He has written and lectured extensively on the ethical issues that arise when lawyers use technology in their practice. His Web site, www.hricik.com, offers various resources on legal ethics and Internet law. |
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