Net Q & A

Question of the Month: February 2002

When Are Web Site Activities "Practicing Law" For Ethics Rule Purposes?

Answer

This month's question is an elaboration on one raised in the January 2002 CLE program The Complete Internet Seminar for Lawyers:

How do newspaper columnists avoid the attorney client/unauthorized practice of law issues that you raise in your materials? It seems to me that the issues facing an internet commentator would be pretty much the same.

The substantive legal issues are similar, but it does seem that lawyers who use the Internet tend to face more questions, or at least worry more about such problems.

The organized bar is inherently conservative, and nowhere more so than in its interpretation of ethics rules. Newspaper advice columns have been around a long time. Lawyers don’t fear that they are going to harm the profession. The Internet is still less of a known quantity to the organized bar, and (correctly, in my view) perceived as more of a potential threat to the established order.

The key issue for legal ethics enforcers is whether the lawyer is perceived as providing “general knowledge” or “legal advice.” The latter is tailored to a particular person’s legal situation. Ethics officials tend to say general information is permissible, but “legal advice” is not.

Under the ethics interpretations currently prevailing, providing “legal advice” is dangerous, because:

  * The lawyer may violate unauthorized practice of law rules. Cf. Model Rule 5.5(a): ''A lawyer shall not … practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction.''

  * An attorney-client relationship can develop, bringing into play a number of duties on the part of the lawyer, including the duty of competent representation, the duty of keeping communications confidential, and the duty to avoid conflicts of interest.

It is unwise to place too much faith in disclaimers to avoid the development of an unwanted attorney-client relationship. If you answer questions about specific legal problems, there is a good chance you will be held to have entered an attorney-client relationship, no matter what disclaimer you use.

One of the best articles on this topic is Professor Catherine J. Lanctot, Attorney-Client Relationships in Cyberspace: The Peril and the Promise, 49 Duke L.J. 147 (1999). One of the points she makes is that lawyer-commentators who used the radio in the thirties, when it was still a relatively new medium, tended to face questions like lawyers who use the Internet today. She indicates that there was a tendency for bar associations to be more aggressive in policing alleged violations when lawyers felt economic pressure, as in the Depression, and clients were rarer.

Will Hornsby does an excellent job of analyzing existing practice on the issues you raise in his article at the ABA’s eLawyering project web site:

Improving the Delivery of Affordable Legal Services Through the Internet: A Blueprint for the Shift to a Digital Paradigm (November 1999).
 

Jerry Lawson