III. Potential Legal and Ethical Issues for Lawyers on the Net

The flexibility of the Internet, and the World Wide Web in particular, forces a reevaluation of ethical restrictions. Lawyers are not limited to the equivalent of a newspaper advertisement. Lawyers also indirectly "advertise" by displaying their expertise in discussion groups and chat rooms. The flexibility of the medium brings up new issues.

A. Electronic Initiation of Attorney Client Relationship

One evolving issue is whether or not an attorney who offers information on the Internet is "giving legal advice", thereby opening himself up to malpractice claims, the attorney-client privilege, confidentiality and other issues relating to general attorney-client relationships. For instance, see the "Seamless Web" site.. At this site, anyone can get free advice on wills, trusts and estate planning. There is a disclaimer that the advice only pertains to California law, but it is not located at the beginning of the information. It's possible that laypersons from other states may follow this advice in designing their wills, but may not have noticed the state law limitation disclaimer. See also http://starbase.ingress.com/tsw/alawyer/criminal.html for a page concerning criminal law. Would the attorneys who provided this information be liable if the layperson's will were found invalid in their state? This is a frightening and very real concern for many lawyers. It is unknown whether or not malpractice insurance carriers have addressed theses issues. The prudent attorney should carefully read the exclusions listed in their insurance policy to be sure such communications are not excluded.

1. Disclaimers

Are disclaimers the solution? Many attorneys use a version of the following disclaimer on their web sites:

"Please understand that the information referenced above is provided as only general information which may or may not reflect the most current legal developments, thus the information is not provided in the course of the attorney-client relationship and is not intended to constitute legal advice or substitute for obtaining legal advice from a licensed attorney."[35]

Would a layperson understand this to be telling them not to rely on the information? Would a court find that this notice was sufficient? The average attorney would certainly hope so, but without guidance from the courts, the answers are unknown.

Also note the part of the disclaimer recited above which states that the information contained in the web site may or may not reflect the most current legal developments. If a person did not know the law had changed after relying to their detriment, could the attorney be liable? Must attorneys who provide information carry the burden of continually searching the case law and legal developments to update their links in order to avoid liability?

B. E-mail

Another concern "net" lawyers have regarding their use of the Internet is e-mail. Many attorneys who have established web sites on the Internet provide their e-mail address for comments. See http://www.bsmwl.com/. If a person sends the attorney a question regarding a particular area of the law and the attorney responds, has the attorney-client relationship been created? If so, have the client and the attorney impliedly waived their right to confidentiality by communication over the Internet where access to such information by others is relatively easy? Does the attorney have the duty to warn the person at the outset that they may give up their right to confidentiality by sending any information to the attorney via e-mail? This is an especially hot topic for attorneys in discussion groups who receive inquiries from laypersons. Does sending a private reply rather than to the group save any privilege?

Another question attorneys have also relates to discussion group contact with other attorneys. Take this scenario for instance: Attorney A contacts attorney B requesting advice in regards to attorney A's client. The client's name is not disclosed. Attorney B gives advice. Is attorney B later foreclosed from representing or litigating against attorney A's client in a separate matter? This is a big concern for many attorneys. If attorney B is foreclosed, this tactic could be used by sly attorneys with large corporate clients. Do we want to dissuade attorneys from communicating with each other in discussion groups? This would seem counter to the spirit of cooperation and camaraderie of the legal profession.