Volume 20, Number 4
June 2003
TEN WAYS TO RISK ETHICAL NIGHTMARES WITH YOUR COMPUTER
By Lise Pearlman
Lise Pearlman was the first presiding judge of the California State Bar Court (1989-95) and is now an expert witness and consultant on legal ethics and an arbitrator/mediator with Alternative Resolution Centers. She is a member of the California State Bar Standing Committee on Professional Responsibility and Conduct.
Not using computers in a modern law practice seems almost
unimaginable now, but certain uses can land a lawyer in some very
hot water, including malpractice claims, disqualification from a
pending case, and ethics violation charges. Certain common
maneuvers raise obvious ethical problems, but others may not look
like violations to those who are accustomed to using online
resources and electronic documents every day. You may want to
review the following hypotheticals and consider how you would
handle similar situations in your practice.
1. You charge your clients for computer-assisted legal research.
Do you clearly state this in your fee agreement? Guerrant v.
Roth1 ruled that absent clear agreement to the contrary,
computer-assisted legal research was a form of attorney fee for
which no separate recovery was available. Even if you have given
proper notice, are the computer research fees reasonable? A
disciplinary action might result if the fees, coupled with
attorney fees otherwise recoverable under the agreement, greatly
exceed established norms.
2. You share office space with a lawyer who has a separate law
practice, but you use a shared computer system and the same
support staff. You and your officemate could be in trouble if you
haven't instructed shared staff about how to maintain each
attorney's client confidences. In addition, protecting all files
from unrestricted access is necessary to properly preserve client
confidences and secrets. Sharing a fax line raises similar
issues.2 With adequate precautions, you can use application
service providers (ASPs) for remote computer services such as
outsourced billing, file storage, e-mail, backup, accounting,
etc., but this may raise serious confidentiality concerns.3
3. You routinely e-mail unencrypted, confidential communications
and memos to your clients. Encryption is generally not required
to satisfy Model Rule 1.6 absent extraordinary circumstances.4
Unauthorized interception of Internet transmissions is illegal
under the Electronic Communications Privacy Act; however, e-mail
is easily intercepted. You should get your client's approval
before exchanging any potentially sensitive information by
e-mail. Also be careful to preserve client confidences by using
password access to confidential data in your laptop computer in
case it is stolen or lost. Failing to back up data stored in a
lost computer may itself be deemed an act of negligence that
falls below the standard of care, and could subject you to
disciplinary action if repeated.
4. You participate in discovery or in a business transaction
where the sides exchange Word or WordPerfect documents on disks.
Previously deleted drafts, confidential comments, or other
now-invisible notations made when tracking revisions to the
documents, however, are recoverable in many cases-with
potentially disastrous consequences if accessed by the opposing
party. Being savvy about the transfer and protection of document
files is essential if you wish to avoid breach of confidentiality
in the twenty-first century.
5. You pay an Internet advertising service a monthly fee plus a
percentage of the client fees you obtain through the site. Fee
sharing with non-lawyers is not permitted. 5 On the other hand,
payment to an advertising service either of a fixed fee for
advertising the law firm or an advertising fee determined by the
number of hits may be permitted.6 Participation by lawyers in
website services that post requests for proposals (RFPs) for
corporate work may also be permitted, depending on the
particulars.7
6. YOU ENTER AN INTERNET CHAT ROOM SEEKING NEW CLIENTS. A NUMBER
OF STATES CONSIDER CHAT ROOMS AND OTHER REAL-TIME COMMUNICATIONS
AS IN-PERSON SOLICITATIONS, WHICH ARE PROHIBITED.8 In other
states, you nevertheless may be prohibited from entering a
victims' support group chat room. In California, for example, it
is presumptively improper to deliver any communication to a
potential client "whom the member knows or should reasonably have
known is in such a physical, emotional, or mental state that he
or she would not be expected to exercise reasonable judgment as
to the retention of counsel."9
7. You advertise your firm on a website. In general, websites are
covered by guidelines for any other form of
advertising-permissible if they are not misleading.10 However,
you must be sure to include in your website the geographic areas
in which you are licensed to practice, or you may violate other
state laws regulating the unauthorized practice of law.11 If you
say that you are of counsel with a law firm in a neighboring
state, you should comply with the applicable advertising rules of
that state even if you will not personally handle matters for
clients from that state.12
8. Your law firm website lists e-mail addresses for all lawyers
in the firm and invites users to address legal questions to them.
A user sends a query that includes details about a potential
claim, to which you do not respond. So far, so good-unsolicited
e-mail inquiries do not pose a confidentiality problem.13 But by
posting individual lawyers' e-mail addresses and inviting
inquiries, the firm risks inadvertently creating an
attorney-client relationship. Post prominent disclaimers on the
website and discourage potentially confidential disclosures; a
conflicts check and a representation agreement should precede
such disclosures.
9. You send a mass e-mail to a list of potential clients, such as
homeowners in your state, advertising your availability for legal
assistance. Mass e-mails are like targeted snail mail, which is
protected commercial speech under the First Amendment.14
Nevertheless, e-mail must comply with regulations governing
attorney advertising.15 Deceptive claims within widely
disseminated e-mails could subject you to serious
discipline.16
You visit the website of the opposing party in a lawsuit and
engage in interactive communication using e-mail. Viewing public
information posted on an opposing party's website is not a
problem, but interactive contacts may constitute prohibited
communication with persons known to be represented by other
counsel.17
A lawyer's fundamental responsibilities are not altered by new
technology. You must comply with the applicable rules for the
areas in which you are licensed to practice and conduct business
or are otherwise subject to regulation. Applicable standards of
ethical conduct are coming to include reasonable safeguards of
client confidentiality in electronic forms. You can find lists of
excellent resources on the impact of technology on law practice
on the ABA Law Practice Management Section's site,
www.abanet.org/lpm/lpt/home.html, or at In-ternet Legal Services,
www.legalethics.com.
Notes
1. 777 N.E. 2d 499 (Ill. Ct. App. 2002).
2. D.C. Ethics Op. 303.
3. See, e.g., N.D. State Bar Ass'n. Ethics Comm. Op. 99-03. An
excellent discussion of risks posed by use of ASPs is Hricik and
Krakaur, ASPs: Very Dangerous? You Go First, at
www.legalethics.com/index.law, click article title.
4. See, e.g., Del. State Bar Ass'n Comm. on Prof'l Ethics Op.
2001-02; Utah Ethics Op. 00-01.
5. See Md. State Bar Ass'n Comm. on Ethics Op. 01-03 (plan poses
risk of conflicts, attorney-client privilege issues, and
prohibited fee splitting).
6. S.C. Bar Ethics Advisory Op. 01-03; see also Ohio Sup. Ct.,
Bd. of Commissioners on Grievances and Discipline Op.
2001-2.
7. Compare D.C. Op. 302 with New York City Op. 2000-1.
8. See, e.g., Utah Ethics Advisory Op. 97-10; Fla. Bar Ethics Op.
A-00-1.
9. Cal. Rule of Prof'l Conduct 1-400; cf. Ariz. Bar Ass'n Ethics
Comm. Op. 02-08 (2002) (law firm may sponsor booth at trade show
that visitors approach voluntarily but must avoid doing so where
particularly vulnerable people congregate, such as victim support
group meetings).
10. See, e.g., Cal. State Bar Formal Op. 2001-155.
11. See, e.g., S.C. Ethics Op. 94-27 (1995) (advertisement that
may reach potential clients in other jurisdictions must identify
geographic limitation of lawyer's practice).
12. See, e.g., Ariz. State Bar Comm. on Rules of Prof'l Conduct,
Op. 97-04; Iowa Formal Op. 96-14. For an in-depth discussion of
permissible versus prohibited Internet advertising, see WILLIAM
E. HORNSBY, JR., MARKETING AND LEGAL ETHICS (3d ed. 2000).
13. See Ariz. State Bar Comm. on Rules of Prof'l Conduct Op.
02-04.
14. Shapero v. Ky. State Bar Ass'n, 486 U.S. 466 (1988).
15. See, e.g., Cal. State Bar Formal Op. 2001-155.
16. See, e.g., In re Morse, 11 Cal. 4th 184 (1995) (attorney who
mailed several million misleading letters advertising legal
assistance to homeowners received lengthy practice suspension and
severe civil penalties).
17. See Ore. State Bar Legal Ethics Op. 2001-164.
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