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Commonwealth of Massachusetts


September 2000

BRAVE NEW WORLD WIDE WEB

by
Constance V. Vecchione

What goes around comes around. In the aftermath of Bates v. State Bar of Arizona-the 1977 U.S. Supreme Court decision holding that advertising by attorneys could not be subjected to blanket suppression-buses, subways and other media were flooded with advertisements, like the one in Bates, from lawyers and "legal clinics" promising divorces for "$250 and up" and other flat fee rates for legal services. But within a decade, of course, most of the lawyers who were still advertising were personal injury attorneys seeking cases on a contingent fee basis. As to advertising services at flat fees, and with the possible exception of bankruptcy, that largely disappeared from the landscape as not cost effective.

Given this history, it is difficult not to regard the new universe of dot-com legal service providers with some skepticism-or at least a feeling of "dejŕ vu all over again". Here again consumers with unmet legal needs unable or unwilling to pay traditional hourly rates are coming together with lawyers willing to provide the needed services in a nontraditional forum and with a nontraditional billing structure.

That said, however, and whether or not these new providers prove a boon for consumers, there are obvious ethics issues that may or may not lead to disciplinary or malpractice concerns down the road. Any lawyer contemplating participating in this type of undertaking assumes that risk and needs therefore to consider these problems before jumping in.

Although this is undoubtedly too rough a generalization, on-line legal service providers currently seem to offer two basic types of assistance. First, there are the "ask-a-lawyer" services where lawyers answer specific questions for consumers or businesses through live chats or email, sometimes for free, sometimes by charging the consumer a small fee. Second, there are the referral-type services that match lawyers to clients. Some of these services have lawyers "bid" on-line for clients who have previously posted a description of their problem Others assign a specific lawyer to a case based on the prospective client's on-line application.

There are numerous combinations and permutations as to the method of providing services and the type of service provided. However, whether designed as an "ask-a-lawyer" program or as a referral program, the ethical issues are the same:

1. Competence. Here the question is whether the attorney participating in the on-line service can provide the consumer with adequate information or services given the strictures of the format. Many of the "ask-a-lawyer" sites issue disclaimers to the effect there is no attorney-client relationship being established, that there is no attorney-client privilege being created, or that the chat or email response is informational and does not constitute legal advice. The extent to which these disclaimers would suffice to protect against a malpractice or disciplinary complaint is an open question that will likely depend on the particular circumstances.

Another issue that arises is the problem of "unbundling" legal services. Are there ethical problems in answering questions on-line, or agreeing through an Internet referral site to represent a client for a routine service, in each instance without reaching other related problems that lawyers retained in more traditional ways would usually address? Mass. R. Prof. C. 1.2(c) permits lawyers to limit the scope of the representation with the clients' consent, but clearly there is still a minimum level of competence required by Rule 1.1. Again, these are issues that may arise in the context of a malpractice or disciplinary complaint.

There are also concerns about rendering legal services on-line, or even by telephone, without meeting the client. This may be a particular problem for the referral-type services. Among other problems, how would one verify that the supposed client is in fact the person with whom the lawyer is communicating? Clearly there is a potential for fraud in areas such as wills and trusts, real estate, or divorce. And even apart from fraud, the lawyer's ability to adequately evaluate the client and the client's claim may be seriously hindered by the absence of face-to-face communication.

2. Unauthorized Practice. The Internet does not respect state lines. Presumably lawyers accepting clients through the Internet for divorces, wills and trusts, real estate, bankruptcy or other local-law matters will not take cases outside the jurisdictions in which they are admitted. Lawyers participating in "ask-a-lawyer" arrangements might be smart to determine upfront what jurisdiction's law applies to the consumer's question and to limit their participation to matters where the applicable law is that of a jurisdiction in which they are admitted.

3. Conflicts and Confidentiality. The fact that a lawyer is handling a matter on-line does not obviate the need for conflicts checks. No lawyer would want to be disqualified from representing an existing client because he or she had inadvertently obtained confidential information from an opposing party in a live chat or an email question or by referral. There are similar concerns as to the confidentiality of information being provided to the lawyers by putative clients. The live chat room presents obvious problems. Less obviously, prospective clients are providing information about their legal problems to service providers in order to be matched with an attorney. Despite disclaimers that information so provided is not privileged, clients may be confused as to when the protections of the attorney-client privilege are triggered.

4. Marketing. Lawyers participating in providing legal services by Internet also need to pay attention to the rules on advertising and solicitation. The general proscriptions in Mass. R. Prof. C. 7.1 and 7.2 on false or deceptive communications, and the prohibition in Rule 7.3 on solicitation in person or by personal communication including electronic devices, are of course applicable. Lawyers should also pay particular attention to the fact that the definition of holding oneself out as a specialist under Rule 7.4 includes any association of the lawyer's name with a field of practice. Thus, lawyers who list themselves on web sites or with service providers as available for consultation or hire in given fields of law may be holding themselves out as specialists or experts in that area, even if those words are not used. To the extent that the lawyer is not in fact a specialist, there could be both disciplinary and malpractice consequences.

5. Referral fees and Fee-splitting. Mass. R. Prof. C. 5.4(a) prohibits sharing legal fees with non-lawyers. Mass. R. Prof. C. 7.3(f) and Mass. R. Prof. C. 7.2(c) generally prohibit lawyers from paying for referrals. Lawyers may, however, pay the usual costs of advertisements and other similar communications and may pay the usual charges of a nonprofit lawyer referral service. Because there is such variety in the way in which Internet legal service providers can and do charge either lawyers, consumers, or both-and because it is ultimately the lawyer who is responsible for complying with the ethical rules-lawyers participating in these services will have to assess carefully whether the arrangement constitutes improper fee-splitting with a nonlawyer or whether the provider is in fact a referral service and, if so, whether its charges are permissible.

For any attorney who is thinking of participating in an on-line legal service, recent literature on this subject may be helpful in thinking through the ethical implications. Sources for this article include "Cyberlawyers Must Chart Uncertain Course in World of On-Line Advice," ABA/BNA Lawyers Journal on Professional Conduct, Vol. 16, No.4, 3/15/00; "Attorney-Client Relationships in Cyberspace: The Peril and The Promise," 49 Duke L.J. 147 (1999) (also available at http://www.law.duke.edu/shell/cite.pl?49+Duke+L.+J.+147) , "On-Line Legal Help," 28 M.L.W 1671 (3/27/00), and "Checkbook Credibility," ABA Journal (6/00).



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