Potential Ethical Issues and Ways to Avoid Pitfalls for the Law Firm Web Site

By Micah Buchdahl, Esq.

As seen in the Wisconsin Bar Journal -- 2003

While the rules of how to play the Internet game have changed rapidly, and often, throughout the last five years, the rules regarding the general practice of law have changed very little. The difficulty comes in interpreting the rules, as they pertain to life on the World Wide Web.

Unlike many entrepreneurs that can run wild on the web, trying all types of ventures, we, as attorneys, must be sure to stay within the guidelines of the profession. Here are a few tips on simply making it more difficult to end up with a problem from online visitors to your law firm. This article is intended to give a generic overview.

Appropriate Disclaimer Language/Privacy Policies

Many states require specific disclaimer language on the home page of a firm web site. Be sure to follow the rules of all relevant states. For the most part, the disclaimer is simply provided on the bottom of the home page, or a link is provided at the bottom of the home page to a separate disclaimer section. The use of privacy policies is generally more prevalent in e-commerce sites in which the end-user is concerned that the web site owner may provide information to third-parties. If your site has an e-commerce edge, you might consider adding a privacy policy.

Helpful Hints:

  • You do NOT need to have someone “click” on a disclaimer acceptance prior to using your informational site. Click-wraps often scare off potential clients simply seeking a look at your credentials.
  • Consider following the Texas rule in which the disclaimer states the name of the attorney at the firm responsible for the web site. Make the attorney name a hyperlink to either his/her biography and/or e-mail address. This way, if anyone has any questions or doubts about the site or any content posted, you make it easier to identify the appropriate person in the firm to contact. You do not want a state bar calling the webmaster or another non-lawyer administrator. It also shows people that you are taking the site seriously, and that a member of the firm is keeping tabs on it.
  • Make sure you are watching the rules for each state in which you maintain an office and/or practice. You may have 399 of 400 attorneys in Pennsylvania, but if the 400th is in a Florida satellite office, you now must follow those rules as well.
  • Look at what your colleagues are using for disclaimers and privacy policies, to come up with better ideas of coverage. While many of us prefer to put too much disclaimer language rather than too little, past experience lends a hand in how these sections are crafted.

Consult Relevant Sources

There are numerous online resources that try to stay abreast of changes—not simply on-line, but ethical situations of all types. A periodic review will not only keep you current, but may clue you in to potential hazards not considered.

Helpful Sites:

  1. American Bar Association (www.abanet.org) – Provides online access to the model rules, as well as articles and recent decisions.
  2. www.legalethics.com – Provides both a recap of recent changes nationally, but also links to ethics materials all over the web.
  3. www.elawyering.org – A site set up by the ABA to help “lawyers serving society through technology.” Excellent resources for both ethical considerations and e-lawyering guidance.
  4. www.pabar.org – And state bar web sites in general. Links to the complete rules of professional conduct. Some states offer much more depth than others.
  5. http://www.law.duke.edu/shell/cite.pl?49+Duke+L.+J.+147 – For one of the best in-depth articles, read law professor Catherine J. Lanctot’s “Attorney-Client Relationships in Cyberspace: The Peril and the Promise.” A free PDF version of the article can be printed out from the Duke Law school web site link above.

Know which states you are practicing in!

It sounds like a pretty inane statement, but do you know which states you need to concern yourself with?

Helpful Hints:

  • Which states are your attorneys admitted to practice?
  • In which states are you actively seeking clients?
  • In which states do you have offices?

One area that has caused a few problems for attorneys is the attempt to hide where you practice on your web site, or suggest that you are places that you are not. The general rules of advertising…and common sense…still prevail.

What exactly are some of the potential issues I am trying to avoid?

Take yourself through a list of the following potential pitfalls, and ask yourself if your web presence could create any of these predicaments.

Attorney-Client Relationship: The number one concern for many attorneys on the web is ending up with an a/c relationship that you did not seek, ask for, or want!

Conflicts: In taking in clients and information via the web, have you had a chance to run the appropriate conflicts checks? The more you automate the intake system, the more likely you may be missing a few things.

Confidentiality: How easy have you made it for an end-user to forward inappropriate information to you via the Internet? This can include the site itself, an on-line form, general e-mail use, electronic fax systems, extranet and intranet environments.

Competence/Unauthorized Practice of Law: Do you make it appear that your expertise runs from “Antitrust” to “Zoning Laws”? Do you make it appear that you may be practicing in New York when your only bar admittance and office location is in Tennessee? Unlike other marketing vehicles, the Internet can entice you to try and stretch the boundaries a little more than you could or should.

Advertising Restrictions: While there is certainly room for interpretation as to whether a web site is always advertising, it usually will be considered one and the same. If you could not do it in a newspaper, on the radio, in a directory or through a referral service, you most likely can not do it on-line.

Helpful Hints:

  • Is your disclaimer language appropriate? Look at the disclaimers of similarly situated firms for some “guidance.” Compare that with your state’s adaptation of the model rules.
  • If you are doing e-commerce or e-lawyering on your site (see www.visalaw.com or www.legalzoom.com), have a detailed privacy policy.
  • Provide detailed on-line forms that force an end-user to provide certain requisite information before the form can be submitted to the firm. Good online forms are often the key to safe, interactive communication on a site.
  • Have a screening mechanism in place for generic e-mail submissions (i.e. info@yourlawfirm.com) or for the results of on-line forms. A screener might be a firm administrator or other non-lawyer that can decide (1) whether to reply to the sender; (2) forward the e-mail to an attorney for further action; or (3) simply delete it and its contents before being viewed by any members of the firm.
  • If you provide e-mail links to attorneys, be sure someone is checking them with reasonable regularity. If you do not think someone will handle e-mail appropriately, simply remove the hot-link, or replace it with an e-mail address that someone is vigilant about monitoring.
  • Click-Wraps are often overkill, and rarely needed. But, if you or members of your firm are adamant about stronger “protection”, you might require someone to click on a user agreement, or close a second browser window detailing disclaimer information, prior to surfing the site.
  • Check some of the aforementioned web sites a few times each year to see if the rules have changed. Here is a hint. States are issuing opinions regarding use of the web, e-mail and on-line marketing efforts with great regularity. And, of course, there are often inconsistencies.