Cyberlawyers: Impact of the Internet on Law Practice and Legal Ethics

James M. McCauley, Ethics Counsel, Virginia State Bar

How does Internet use in your practice affect your ethical responsibility as a lawyer? This article presents some interesting ethics issues that have arisen now that an increasing number of lawyers are using the Internet as a tool in their practice.

1. Growth of Internet / Lawyers' Usage of Internet

Not long ago the Internet was unfamiliar territory used almost exclusively by government and academic researchers. Personal and private industry usage of the Internet has skyrocketed. An online research firm, Jupiter Communications, projects that by the year 2000, more than 36 million households in the U.S. will be connected to the Internet, up from 9.6 million in 1995. PC Magazine, Vol. 15, No. 20 at 147 (November 19, 1996). Authorities now believe that many thousands of lawyers communicate regularly on the Internet. ABA/BNA Law. Man. Prof. Conduct at 81:553 (1996).

A survey of computer usage by family law practitioners was conducted at the 13^th Annual Advanced Family Law Seminar in April 1997. Of the 115 attorneys responding, 37 had Internet access at home and office. Twenty-two attorneys reported using e-mail to communicate with clients, with ten responding that they used e-mail once or twice a week for communication with clients.

2. Legal Research on the Internet--The Future of Legal Research

With the explosive growth of the Internet, it is likely that the proprietary stranglehold on primary resource materials (cases and statutes) will be broken. While the Internet is not yet a complete legal research tool, it will likely be the resource of the future. Even now, the Internet has just about every resource necessary to research federal law.⁽¹⁾ Many of these resources are free and open to the public, thanks to the efforts of the Legal Information Institute and a consortium of various law school Web publishers.

For a modest fee⁽²⁾ , VersusLaw, Inc., provides a site (previously owned by Lawyers Legal Research ) which contains archives of appellate opinions from every appellate court in the United States, both state and federal. The opinions are current and go back at least 20 years in most jurisdictions.⁽³⁾ The Web site features a full text search engine and is located at http://www.versuslaw.com. The VersusLaw site also provides a free library containing many federal and state legal and governmental resources.

Another free data base is the "FedWorld/FLITE Supreme Court Decisions Home Page" which contains the full text of 7,407 United States Supreme Court decisions from 1937 to 1975. This site provides a full text search engine and can be found at http://www.fedworld.gov/supcourt/index.htm. A free resource located at http://www.lawreview.org allows the online reader access to over 100 law journals posting full text legal articles on the Internet. The site includes a search engine to select articles by topic.

Indicative of the proliferation of legal resources on the Internet is the availability of software programs designed to assist the user in navigating through the World Wide Web. For example, Internet Law Library, compiled by "iicons," and INTRALAW Legal Navigator, created by Internet Legal Services and Arceneaux Consulting, are two products currently available. These applications integrate with a web browser providing the user with a detailed and organized index of links to legal resources on the Internet.

New legal resources appear on the Internet so frequently that the practitioner needs to "surf" or explore the Internet frequently to discover these new websites. The FindLaw "Law Crawler" is a popular search engine designed to locate legal resources and is located at http://www.lawcrawler.com/index.html. Another useful site is "Compass Directions for the Internet" located at http://www.compasscomputer.com. For a comprehensive site with a terrific topical index check out "The Lawyer's Home Page at http://www.arrowweb.com/LegalPage.html. Randy Singer, Esquire has developed a very thorough website with links to many legal resources called "Substantive Law on the Web" located at http://www.mother.com/~randy/law.html.

There are now listservs for virtually every area of law, i.e., legal ethics, real estate, malpractice, criminal law, etc. A listserv is an on-line discussion group that has a server through which messages can be posted by members of that particular listserv. Messages can be sent privately by e-mail or posted to the entire group. A discussion topic or "thread" develops and the members of the group can reply to each other's posts. Subscriptions to these listservs are usually free. For a list of all the listservs that are on the Internet, go to the University of Chicago's D'Angelo Law Library (http://www-lawlib.uchicago.edu) for Law Lists maintained by Lyonette Louis-Jacques.

While the legal resources on the Internet still leave gaps, the growth of legal resources is phenomenal. Moreover, the information is either free or at a reasonable cost far below the fees charged by Westlaw or Lexis for online legal research. Finally, a growing number of state courts and governments are providing access to state cases and statutes. In the not too distant future, one will be able to do legal research, for free, at these state or court sponsored websites.

Does this mean that attorneys should cancel their accounts with online research services like Lexis and Westlaw. Not yet writes Wendy Leibowitz in her column "Westlaw and Nexis vs. The 'Net: The 'Net Loses, But Just You Wait," National Law Journal, December 2, 1996 at A22. She concludes that the legal resources currently on the Internet are no rival to these commercial online research services but time will tell. Only a few states (Arizona, California and Georgia) have good state caselaw files, including lower appellate court decisions. For state court resources, Leibowitz recommends the home page for the National Center for State Courts at http://www.ncsc.dni.us.

Does a lawyer's duty to be competent and thorough in the handling of a legal matter for a client [Model Rule 1.1; DR 6-101(A)] require computer research? In addition to possessing a basis knowledge of well-settled principles of law applicable to a particular situation, the lawyer must also "discover those additional rules of law which, although not commonly known, may be readily found by standard research techniques." Baird v. Pace, 752 P.2d 507 (Ariz. 1987). Do "standard research techniques" include computer assisted legal research? There are no legal authorities to date that impose a legal duty, under pain of liability or discipline, to utilize computer assisted legal research. Indeed, given the dizzying advances in computer technology in this area, it would be extremely difficult for the courts or disciplinary authorities to formulate a standard in this area. Moreover, one should question the wisdom of imposing a legal duty to perform legal research with a computer as opposed to traditional research methods. However, if computer assisted legal research permits attorneys to research the law more efficiently at lower costs to clients, then such tools should be utilized regularly in a lawyer's practice.

3. Confidences & Secrets--Protecting Sensitive Information on the Internet

Interception of E-Mail

Authorities now believe that many lawyers regularly use electronic mail (e-mail) to communicate with colleagues about clients, and with clients about their legal matters. As lawyers are required by ethics rules⁽⁴⁾ to keep information about their clients confidential, the use of e-mail in such situations presents a potentially thorny problem: how do you maintain that confidentiality? Lawyers can be held liable for malpractice if they do not take reasonable precautions to protect sensitive information such as mergers and acquisitions, intellectual property matters, public securities offerings and such breach of duty proximately causes harm to the client. See generally, R. Mallen & J. Smith, Legal Malpractice, 8.12, 18.2 (4th ed. 1996).

The United States Code prohibits the intentional interception of "electronic communications" and computer-to-computer communications (i.e., e-mail messages are protected). Electronic Communications Privacy Act of 1986, 18 U.S.C. 2510, et. seq. 18 U.S.C. 2517 (4) states that no otherwise privileged wire, oral or electronic communication intercepted in violation of the Act shall lose its privileged character. One could then argue the use of unencrypted e-mail between attorney and client does not create a waiver of the attorney-client privilege where the parties had a reasonable expectation of privacy. But authority on this issue is scant. A military court recognized an expectation of privacy in an unencrypted e-mail message for purposes of search and seizure issues. United States v. Maxwell, 42 M.J. 568 (US Air Force Ct.Crim.App 1995). On the other hand, a federal court ruled that an employee did not have a reasonable expectation of privacy in company e-mail. Smyth v. Pillsbury Co., 914 F.Supp. 97 (E. D. Pa. 1996). See also, Castano v. American Tobacco Co., 896 F.Supp. 590 (E. D. La. 1995) (documents which company asserted were privileged but available over the Internet through a state library were in the public domain).

In a rather dated report, now ten years old, the American Bar Association addressed the issue of protecting confidentiality when using on-line communications but provided only general guidance. The ABA report concluded that a lawyer should not communicate over an on-line network regarding confidential matters without being assured "either through bar approval or the lawyer's own informed evaluation," of the reliability of the system in maintaining confidential communications. ABA Standing Committee on Lawyers' Responsibility for Client Protection, Lawyers on Line: Ethical Perspectives in the Use of Telecomputer Communication (1986) at 67. The Committee added that a lawyer should not communicate over an on-line network regarding confidential matters "without being reasonably assured of the security of the system and protection from inadvertent or intentional interception of information by another. Id.

Guidance from bar ethics committees is limited. Two ethics committees have warned that lawyers must take reasonable measures to secure confidential e-mail communications, i.e., use encryption, password/firewall or other security. Otherwise, the lawyer must obtain the client's written consent to use unsecured e-mail, after full disclosure of the potential risk if the communication is intercepted. Iowa Ethics Opinion 96-1 (1996); South Carolina Ethics Opinion 94-27 (1995). Another ethics committee has advised that the same precautions recommended for cellular and cordless phone communications⁽⁵⁾ should be observed when communicating with clients by e-mail. North Carolina Ethics Op. 215 (1995).

Arizona lawyers are directed to use caution when communicating with clients about confidential matters using e-mail over the Internet and to consider encryption to prevent the inadvertent disclosure of confidential information. At a minimum, e-mail to clients should contain a cautionary statement that the transmission is confidential and intended only for the addressee/client, similar to the boilerplate language used on facsimile cover sheets. Arizona Bar Op. 97-04 (1997).

Some do not consider e-mail interception a significant issue so as to require greater security. Loss prevention lawyers at the Attorneys' Liability Assurance Society (ALAS), a legal malpractice underwriter for large law firms, take the position that the failure to encrypt communications over the Internet does not waive attorney-client privilege, nor does it create any ethical or liability exposure, except for matters so important that any threat of interception must be avoided. In support of this conclusion, ALAS notes that after seeing over 9,000 claims, not one has ever involved any situation where a third party has intentionally and without authorization intercepted a law firm's communication, whether by stealing mail, intercepting a fax, tapping a phone or "hacking" a computer message. "Communicating With or About Clients on the Internet--Legal , Ethical, and Liability Concerns" 12 ALAS News, No. 3 (Autumn 1995).

Illinois lawyers may use unencrypted e-mail to communicate with clients unless unusual circumstances justify enhanced security. An ethics panel concluded that (1) the expectation of privacy is no less reasonable for e-mail than telephonic communications; (2) the unauthorized interception of either form of communication is illegal under the ECPA; and (3) extraordinarily sensitive matters that would require enhanced security such as encryption would not be appropriate matters to transmit over the telephone. Thus, the panel saw no basis to regulate e-mail communications more stringently than conversations with clients over the telephone. Illinois State Bar Ass'n. Ethics Op. 96-10 (1997).

In the recent and well-publicized lawsuit challenging, on free speech grounds, the federal Communications Decency Act, the court made a finding that "[u]nlike postal mail, simple e-mail generally is not 'sealed' or secure, and can be accessed or viewed on intermediate computers between the sender and the recipient (unless the message is encrypted)." American Civil Liberties Union v. Reno, 929 F. Supp. 824, 834 (E.D. Pa. 1996). Thus, a bored and unscrupulous systems manager could intercept an e-mail message under the pretext of system maintenance. Significantly, under the federal Electronic Communications Privacy Act, a network provider's employee may intercept messages in the normal course of his employment as needed to maintain and render the service. 18 U.S.C. 2511 (2)(a)(i) (1988).

As of this writing no legal authority yet states that a lawyer's use of unencrypted e-mail constitutes a waiver of the otherwise privileged nature of the communication. However, the prudent course taken by most lawyers is simply to refrain from using Internet e-mail as a means of communicating sensitive information, or employ encryption in their e-mail communications with clients or co-counsel.

Encryption Software

Encryption software is readily available and easy to use. Most software applications employ public-key / private-key encryption, a system that uses two keys to encrypt and decrypt a communication. The lawyer and, for example, the client each has two unique and separate keys: a private key and a public key. The public key is available to anyone and the public key is used to encrypt a message. Thus the lawyer can use the client's public key and the client will use the lawyer's public key to encrypt an e-mail message. The recipient can then decrypt the message with his or her private key. However, once a message is encrypted, the sender and, more importantly, an intermediary is unable to read it, because they do not have the private (encryption) key. ViaCrypt PGP (Pretty Good Privacy) is an example of such software.

Whether a lawyer's failure to encrypt a confidential e-mail message to a client will result in a court ruling that the communication is not privileged is open to debate. The result may rest on all of the circumstances, including the intent of the parties that the communication be kept secret, the reasonableness of the security precautions taken, the manner in which the communication was disclosed or intercepted, and the harm or prejudice to the client if the information is disclosed to third parties or ruled discoverable by the opposition. See, e.g., Alldread v. Grenada, 988 F.2d 1425 (5th Cir. 1993); Bank Brussels Lambert v. Credit Lyonnais (Suisse) S.A., 160 F.R.D. 437 (1995).

Some jurisdictions have ruled that any disclosure, even inadvertent, of a privileged communication is a waiver of the attorney-client privilege. In re Sealed Case, 877 F.2d 976 (D.C. Cir. 1989); International Digital Systems Corp. v. Digital Equipment Corp., 120 F.R.D. 445 (D. Mass. 1988); Duplan Corp. v. Deering Milliken Inc., 397 F.Supp. 1146 (D. S.C. 1974). Other authorities insist that the disclosure must be intentional or reckless in order to waive the privilege and that mere negligence in the handling of the communication does not constitute a waiver. Berg Electronics Inc. v. Molex,Inc., 875 F.Supp. 261 (D. Del. 1995) (negligent production of privileged documents not a waiver of privilege); Pennsylvania Ethics Op. 94-11B (1994) (confidential memo inadvertently sent to opposing counsel still protected by attorney-client privilege).Other authorities strike a middle ground saying that inadvertent disclosure of otherwise confidential information does not constitute a waiver if the parties took reasonable precautions to safeguard against disclosure. See, Restatement of the Law Governing Lawyers, 129, Reporter's Note, comment (h) (Proposed Final Draft No. 1, 1996).

The Inadvertent Receiver

Perhaps a more intriguing question is the ethical dilemma of an attorney who receives material that is apparently a confidential communication between the opposing counsel and adverse party. This issue has arisen in the context of misdirected faxes where an attorney suddenly found himself inadvertently in possession of a confidential communication between his client's adversary and opposing counsel. Presumably the same thing could occur with e-mail between opposing counsel and their client.

According to the ABA's Legal Ethics Committee, if a lawyer receives materials which appear covered under the attorney-client privilege or otherwise confidential, and the communication was not intended for the receiving lawyer, then the lawyer should refrain from reviewing the materials, notify the sending lawyer, and comply with the directions of the sending lawyer. ABA Formal Ethics Op. 92-368 (1992). Suppose the lawyer receives an adverse party's confidential materials from someone who was not authorized to possess and deliver the information? Again, the ABA's Ethics Committee takes the same position. The attorney receiving the confidential information may not read or use the materials, should notify opposing counsel, and abide by opposing counsel's directions regarding the disposition of the materials. If counsel cannot agree on the disposition of the materials, then the receiving attorney may not use the information and must hold the materials until the court rules on the matter. ABA Formal Op. 94-382 (1994). Following these ethics advisory opinions, at least two courts have ruled that an attorney could not use confidential information that was inadvertently sent by opposing counsel. American Express v. Accuweather, Inc., 12 Law. Man. Prof. Conduct 243 (S.D.N.Y., 6-25-96); Resolution Trust Corp. v. First of America Bank, 868 F.Supp 217 (W.D. Mich. 1994).

Not all state ethics committees agree with the ABA's position and some have stated that it is not unethical for the receiving attorney to use inadvertently produced documents. In District of Columbia Ethics Op. 256 (1995), the committee held that it would not be improper for an attorney to retain and use confidential documents inadvertently sent to him by opposing counsel, if the receiving attorney had to read the documents before determining that they were not intended for him. A Kentucky panel found that while lawyers should follow the ABA guidelines, lawyers who retain and use privileged materials inadvertently sent to them will not be disciplined. Kentucky Ethics Op. E-374 (1995). See also, Maine Ethics Op. 146 (1994) (where opposing counsel inadvertently included a confidential document in a discovery response, receiving lawyer may use the document in any way permitted by rules of procedure and evidence). The Standing Committee on Legal Ethics in Virginia has stated in several opinions that it is not improper for an attorney to use information that may have been obtained unlawfully or without authorization by another, provided the attorney was not an accessory to, or in any way involved with, the obtaining of the information. Virginia Legal Ethics Ops. 278, 1141 and 1324. However, a request is currently pending before the committee to issue an opinion on the ethical obligations of an attorney who receives a misdirected facsimile containing a privileged communication between the opposing party and their counsel.

Most ethics committees agree that counsel who receives confidential information that was not intended for their viewing must notify the other lawyer. Florida Ethics Op. 93-3 (1994); Maine Ethics Op. 146 (1994); Ohio Ethics Op. 93-11 (1993); New Jersey Ethics Op. 680 (1995) (lawyer must inform opposing counsel that his client surreptitiously removed papers from opposing counsel's briefcase).

While there is little authority directly on point concerning the ethical considerations of an intercepted attorney-client e-mail communication, the cited authorities seem to address the same issues in different contexts and offer some guidance. Of course, the bottom line with any e-mail communication is that, if the information is valuable or sensitive, the lawyer should take reasonable precautions to ensure the security of the e-mail, or forego using e-mail in preference to a more private method of communication.

4. Lawyer Advertising & Solicitation Over the Internet

In November 1994, only five law firms in the United States had home pages on the World Wide Web. Seven months later, the number jumped to approximately 500. Hornsby, "Ethics Rules for Ads May Cover Web Sites" National Law Journal, January 19, 1996 at C1. A recent ABA survey found that more than one-half of the large law firms responding had a home page, and 64% of those without home pages were planning to create one in the future. At the 13^th Annual Advanced Family Law Seminar in Richmond held in April 1997, a survey of 115 attorneys revealed that 6 had Web pages and 29 planned to have a Web page in the next six months.

Right now, law firms routinely establish websites or home pages on the Internet as a tool for marketing, newsletters, legal research, networking, recruiting, and just keeping clients and the general public informed. These websites can be interactive, permitting visitors to post comments or questions. While this communication potential is exciting, it comes at a price: Boundaries are still being established and the possibility of problems, including law suits against law firms, exists.

Lawyer advertising over the Internet poses significant and novel issues in the areas of legal ethics and professional responsibility. Nearly twenty years ago, the United States Supreme Court struck down blanket prohibitions against lawyer advertising, holding that lawyers may exercise their rights to engage in commercial free speech. Bates v. State of Arizona, 433 U.S. 350 (1977). Prior to Bates, most states' ethics>rules prohibited all attorney advertising. Following Bates, lawyers continued to successfully challenge the states' efforts to regulate or restrict>lawyer advertising.⁽⁶⁾

This expansion in the scope of permissible lawyer advertising in the United States brings the legal profession into the current era of many crass and tasteless advertisements and commercials in print and broadcast media. Moreover, victims of personal injury accidents are bombarded by direct mail solicitations by lawyers.⁽⁷⁾

Although Americans sometimes refer to the Internet as the "Wild West," devoid of any law and order⁽⁸⁾ even the Internet has its limits. This was demonstrated when a Phoenix, Arizona law firm seeking to solicit immigration clients engaged in a practice called "spamming." The law firm posted the following message to thousands of newsgroups⁽⁹⁾ reaching users all over the world:

"Do you want to get a green card for permanent residence in the United States? THE TIME TO START IS NOW!!"

The reaction to this intrusive advertisement was hostile. Shortly after the ad was posted, the law firm was "flamed" by thousands of angry users who felt that the ad was inappropriate for posting in newsgroup and violated the rules of "netiquette." Over 30,000 responses to the firm's message caused the firm's Internet service provider's server to "crash" and as a result, the provider terminated the firm's access to the Internet.

Disciplinary action was ultimately taken against one of the attorneys, Laurence Canter, who was licensed in several states, including Tennessee. In a controversial case the Tennessee Supreme Court imposed a one-year suspension of Canter's license for "spamming" Internet newsgroups with thousands of indiscriminate postings regarding his law firm's services. In re Canter, 13 Law. Man. Prof. Conduct 218 (Tenn. Sup. Ct., 6/5/97). The disciplinary tribunal concluded that the advertisements were "an improper intrusion into the privacy of the recipient" thus violating Tennessee's DRs 1-102(A)(1), (5) and (6) and 2-103. Id.

Lawyers may also post an advertising message to a particular newsgroup for interested parties to read or send an e-mail message directly to a potential client. In addition, a lawyer could go on line and participate in a chat room to advertise his or her services. However, least one bar ethics opinion cautions lawyers who contemplate marketing their services in Internet chat rooms or newsgroups. The Arizona Bar warns that lawyers should avoid answering specific legal questions posed in chat rooms or newsgroups because of the inability to screen for potential conflicts with an existing client of the lawyer or their firm; and the possibility of waiving any confidentiality that would otherwise attach to a communication between and attorney and a prospective client. Arizona Bar Op. 97-04, supra. Lawyers and law firms may post appropriate newsletters and general legal information without triggering these ethical concerns, according to this opinion. Id.

Neither the Model Rules of Professional Conduct nor the Code of Professional Responsibility specifically regulate advertising on the Internet. Only a few states have provided guidance on how existing professional regulations apply to lawyer advertising on the Internet. A threshold issue is whether law firm's home page on the Internet is an advertisement subject to regulation under existing rules. Some lawyers may consider their home pages a source of pure information only, therefore totally exempt from regulation under advertising rules. However, given the Supreme Court's definition of "commercial speech" this position is unlikely to prevail. Commercial speech is speech whose purpose is "to propose a transaction." Cincinnati v. Discovery Network, Inc., 113 S.Ct. 1505, 1513 (1993). Most lawyers' websites on the Internet propose a commercial transaction. Law firms do not escape this definition simply because their website provides legal information to the public.⁽¹⁰⁾

Although the Virginia State Bar has yet to issue any rules or opinions specifically addressing Internet advertising by lawyers, other jurisdictions have begun to weigh in on this issue. For example, the Texas State Bar has issued new regulations including a helpful interpretive commentary distinguishing legal information from public media advertising. Texas attorneys with a home page on the Internet are required to file with the Advertising Review Committee a hard copy of the first screen when their URL address is accessed. Rule 7.07(d), Texas Disciplinary Rules of Professional Conduct. Information linked to the first screen need not be submitted unless it primarily concerns the solicitation of prospective clients. Information not considered as the solicitation of prospective clients includes the following: newsletters, news articles, legal articles, editorial opinions, illustrations, questionnaires, fact or opinion survey forms, announcement of office openings and relocations, requests for proposals or information from the public, legal product specifications, e-mail and e-mail response forms, attorney biographical information, announcement of personnel changes, attorney and staff support recruiting, job openings, legal developments and events, including verdicts, judgments, court rulings, administrative rulings, legislation, announcement of legal seminars and events.

In Iowa, the Supreme Court Board of Professional Ethics and Conduct has advised that Iowa lawyers with Web home page sites must comply with the state's rules on advertising, including the publication of mandatory disclosures applicable to lawyer advertising through other media, i.e. newspaper, radio, television, etc. Iowa Ethics Op. 96-1 (1996). Pennsylvania, South Carolina, and Tennessee have likewise taken the view that lawyer advertising on the Internet subjects the law firm to the existing ethics rules regarding advertising, communication with prospective clients, and solicitation. Pennsylvania Ethics Op. 96-17 (1996); South Carolina Ethics Op. 94-27 (1995); and Tennessee Ethics Op. 95-A-570 (1995).

The Florida Bar advises that "computer ads" including law firm websites or home pages are subject to the same requirements applicable to all other forms of advertising. Florida's rules, like Virginia's⁽¹¹⁾ , employ a broad definition of advertising to include "communications disseminated in the electronic media." The Florida Bar requires the filing of a "hard copy printout" of the home page and a statement of when and where the ad will appear. "Ethics Update," Florida Bar News, January 1, 1996.

North Carolina has concluded that attorneys may participate in a commercial online directory of lawyers on the Internet, organized by geographic area and areas of practice, provided that the listings are not misleading and do not imply specialization for non-certified lawyers. North Carolina Bar Ass'n Op. 241 (Jan. 1997). North Carolina requires its attorneys who advertise on the Net to keep a hard copy of all screens for 2 years after the last date of dissemination, together with a record of when the screens were used on the Internet. North Carolina Rules of Prof. Conduct, Rule 2.2(b); North Carolina Bar Ass'n Op. 239 (Jan. 1997).

Still unclear is how state regulators will apply existing ethics rules to various forms of communication over the Internet. For example, if a lawyer solicits a potential client in a chat room, is this an in-person communication?⁽¹²⁾

Another issue is to what extent can professional regulators hold an attorney responsible for the content of portions of a home page over which he has no control, if those links or pages are interactive and dynamic.

Other problems concern interstate and international enforcement and compliance. How does a lawyer advertising over the Internet comply with all the different rules governing lawyer advertising in each of the fifty states, or other countries? Since each jurisdiction's rules vary, the lawyer with a home page on the Internet will need to ensure that he is in compliance in the jurisdiction having the most stringent regulations. If a lawyer has a website and is admitted to practice only in Virginia, can that lawyer offer legal services in Florida, without violating Florida's unauthorized practice rules?⁽¹³⁾ If a lawyer's Internet advertisement complies with the law of his home state, but violates the rules of another state where the advertisement can be viewed, which jurisdiction's rules apply?

Finally, if a law firm provides legal information to persons who visit its website will this create an attorney-client relationship so that the law firm is subject to a malpractice claim if the information is erroneous and someone relies on it to their detriment? These and many other questions remain unanswered and as computer technology continues to outpace the law, even more questions will arise.

Conclusion

The ability of lawyers to communicate quickly, conveniently and economically with their colleagues, clients and the general public, and market their services over the rapidly growing Internet presents interesting issues for both practitioners and regulators. As we approach the 21st Century, the legal profession must explore the use of this rapidly changing media in a way that properly balances professionalism and ethics with the search for newer and more efficient ways to deliver legal services and information to the public.

1. ⁰United States Supreme Court decisions from 1990 to present are available for free in full text and the cases are searchable by words and phrases. The Web site is http://www.law.cornell.edu/supct/. A searchable United States Code is at http://www.cornell.edu/uscode/. All of the Federal Circuit Courts of Appeal decisions from approximately 1995 to present are archived at http://www.law.emory.edu/FEDCTS. A free searchable Code of Federal Regulations can be found at http://www.lawguru.com.

2. ⁰ The annual fee is $595.00 (until December 31, 1996) and a free two-week trial is offered.

3. ⁰ Many of the libraries go back into the 1950s.

4. ⁰ Va. Code of Professional Responsibility, DR 4-101 (requiring an attorney to protect client confidences and secrets). See also Model Rules of Professional Conduct 1.6 (1983).

5. ⁰ Because of the ease with which cellular and cordless phone communications may be intercepted, lawyers are cautioned not to use such devices without a scrambler for confidential communications unless the client consents. Massachusetts Ethics Op. 94-5 (1994); New Hampshire Ethics Op. 1991-2/6 (1992). Lawyers are advised that they must warn the other party at the outset of the risk of interception and the potential for the loss of the attorney-client privilege. New York City Ethics Op. 1994-11 (1994); Iowa Ethics Op. 90-44 (1991). Some state courts have ruled that there is no reasonable expectation of privacy in cellular phone communications. Salmon v. State, 426 S.E.2d 160 (Ga. Ct. App. 1992); People v. Wilson, 554 N.E.2d 545 (Ill. Ct. App. 1990). However, since federal law makes it a crime to intercept a cellular phone communication [18 U.S.C. Section 2511(1)] and prohibits the importation or manufacture of scanners [47 U.S.C. Section 302a(d)], courts and ethics committees could find that the attorney-client privilege is not waived by the use of such communication merely because the conversation is overheard by a third party in violation of the Act.

6. ⁰ In re R.M.J., 455 U.S. 191 (1982) (state may not dictate permissible wording as to lawyer's area of practice); Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985) (state may not ban the use of undignified or distasteful illustrations used by lawyer in advertisement); Shapero v. Kentucky Bar Ass'n, 486 U.S. 466 (1988) (state may not completely ban solicitation letters to targeted potential clients); Peel v. Attorney Registration & Discipline Committee of Illinois, 496 U.S. 91 (1990) (state may not discipline lawyer for truthful advertisement that he was certified by National Board of Trial Advocacy).

7. ⁰ Most states have rules banning in-person solicitation of victims (or their families) in personal injury and wrongful death cases. The Supreme Court of the United States has upheld rules prohibiting in-person solicitation in cases involving personal injury or death because of the vulnerability of the victims or their families and the potential for overreaching by the soliciting lawyer. Ohralik v. Ohio State Bar, 436 U.S. 447 (1978). However, the Court ruled that the states could not impose a blanket ban on targeted direct mail solicitation in Shapero v. Kentucky Bar Association, 486 U.S. 466 (1988).The New Jersey Supreme Court publicly reprimanded a lawyer who solicited a father whose son was killed in the terrorist bombing of the Pan American flight in Lockerbie, Scotland. The day after the son's remains were identified, two weeks after the plane exploded, the father received a letter from the lawyer expressing sympathy and then offering legal services in the matter. In re Anis, 599 A.2d 1265 (N.J. 1992).

8. ⁰ See August Bequai, "Policing the Internet: US Developments," Computer Audit Update (March 1996) at 27.

9. ⁰ Newsgroups are discussion groups in which people are interested in particular topics and keep each other informed in those matters or engage in electronic debates over particular issues. There are more than 10,000 newsgroups on the Internet.

10. ⁰ See, Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985) (lawyer's newspaper advertisement soliciting female clients suffering injury from IUDs not entitled to constitutional protection afforded non-commercial speech merely because subjects are matters of public debate).

11. ⁰ See, Virginia Code of Professional Responsibility, DR 2-101 (A). Virginia's Standing Committee on Lawyer Advertising & Solicitation has stated informally the existing rules governing lawyer advertising should apply to Internet advertising, but is studying the issues further with a eye toward issuing a formal opinion on the subject.

12. ⁰ Ethics rules prohibiting in-person solicitation often treat a telephone communication as an "in-person" communication. See, e.g., Va. Code of Professional Responsibility, DR 2-103. Chat rooms allow Internet users to communicate in "real time" conversation as opposed to messages posted on bulletin boards, listservs and newsgroups where the response time is hours or days.

13. ⁰ Some jurisdictions prohibit out of state attorneys from "holding themselves out" as authorized to practice in that state unless they are admitted or associate local counsel. A law firm with a home page would be wise to list the attorneys in the firm and indicate in which jurisdiction(s) each attorney is admitted to practice.