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ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK COMMITTEE ON PROFESSIONAL AND JUDICIAL ETHICS
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Year 1998 Ethics Opinions
Formal Opinion 1998-2 Formal Opinion 1998-1

THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK

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FORMAL OPINION 1998 - 2

TOPIC: Law Firm Internet Websites; Law Firm-Sponsored Internet Discussion Area; Provision of Law-Related Services Over the Internet; Communication by Unencrypted E-mail

DIGEST: A law firm should maintain a copy of its website for at least one year, but need not file a copy with the Departmental Disciplinary Committee. A law firm that establishes a discussion area on its website should exercise caution and vigilance to avoid the establishment of an attorney-client relationship and impermissible advertising or solicitation. A law firm may not pay a fee to an Internet service provider calculated by reference to fees earned by the law firm from the provision of on-line services. A law firm may not post a form for a new customer to request a trademark or copyright search, but may do so for existing clients. A law firm need not encrypt all e-mail communications containing confidential client information, but should advise its clients and prospective clients communicating with the firm by e-mail that security of communications over the Internet is not as secure as other forms of communications.

CODE: DR 2-101(D), (F), (H), (I); DR 2-104(A), (C), (E); Canon 4; Canon 6; EC 2-5.

QUESTIONS

1. Does DR 2-101(F) require that a law firm that establishes a website (a) retain a copy of the website for one year, and (b) file a copy with the Departmental Disciplinary Committee for the appropriate judicial department?

2. May a law firm host a listserv-type discussion area on legal subjects?

3. May a law firm pay its Internet service provider for each instance the firm earns a fee from use of its on-line services?

4. May a law firm post a form on its website for new or existing customers to order trademark or copyright searches?

5. May a law firm send confidential client communications by unencrypted Internet e-mail?

OPINION

The inquiring law firm (“Law Firm”), which concentrates its practice in the area of intellectual property, is in the process of developing a website that would provide (a) information concerning the firm, as well as general information concerning patent, trademark and copyright law; and (b) certain on-line services, such as trademark searches/interpretations, and applications for trademarks and copyrights, which could be requested by filling out an on-line form. Not only existing clients but also potential new clients are the intended audience for these services. Fees for all services and "appropriate disclaimers" would be clearly laid out. Payment would be accepted via credit card or through the Virtual Bank (an electronic payment system designed for the web).

Among other things, Law Firm specifically inquires whether it would be permissible to pay a fee to the Internet service provider that would be maintaining the website for each instance that Law Firm earns a fee from those on-line services.

Law Firm may also establish a listserv-type discussion area on the subject of general intellectual property and legal issues. Presumably, a reference or link to this discussion area would appear on Law Firm's website.

Publicity and Advertising

A law firm website that seeks to interest existing or potential clients in retaining the firm constitutes “advertising” and “other publicity” within the meaning of DR 2-101. 1 Indeed, an appropriately designed web page would appear well suited to "educate the public to an awareness of legal needs and to provide information relevant to the selection of the most appropriate counsel." DR 2-101(D). 2 Nor, except as noted below, does compliance with DR 2-101 appear to raise any particular difficulties when applied to a website.

Preservation of Advertising Materials

Law Firm expresses uncertainty as to compliance with the preservation and filing requirements of DR 2-101(F) in regard to a website. DR 2-101(F) provides as follows:

F.If the advertisement is broadcast, it shall be recorded or taped and approved for broadcast by the lawyer, and a recording or videotape of the actual transmission shall be retained by the lawyer for a period of not less than one year following such transmission. All advertisements of legal services that are mailed, or are distributed other than by radio, television, directory, newspaper, magazine or other periodical, by a lawyer or law firm with an office for the practice of law in this state, shall also be subject to the following provisions:

1.A copy of each advertisement shall at the time of its initial mailing or distribution be filed with the Departmental Disciplinary Committee of the appropriate judicial department.

2.Such advertisement shall contain no reference to the fact of filing.

3.If such advertisement is directed to a predetermined address, a list, containing the names and addressees of all persons to whom the advertisement is being or will thereafter be mailed or distributed, shall be retained by the lawyer or law firm for a period of not less than one year following the last date of mailing or distribution.

4.The advertisements filed pursuant to this subdivision shall be open to public inspection.

5.The requirements of this subdivision shall not apply to such professional cards or other announcements the distribution of which is authorized by DR 2-102(A).

With respect to filing of advertisements the rule thus appears to divide advertising into two categories: advertising that is in a form that is not generally or widely available, such as direct-mail solicitations, must be filed with the Departmental Disciplinary Committee, while advertisements in media that are generally available radio, television, directory, newspaper, magazine or other periodical need not be filed. Where those advertisements are distributed in broadcast media, which are not the subject of an easily available permanent record, there is also a requirement that the lawyer retain a copy for one year.

DR 2-101(F) was promulgated prior to the explosion of the web as a communications medium. The Committee believes that the rule should be applied to this new medium in accordance with the rule’s purposes. While it is possible to read the rule strictly to require that a lawyer's website be filed with the Departmental Disciplinary Committee of the appropriate judicial department, we do not believe that such a reading comports with the intent or policy of the rule. It does not appear to be the policy of the rule to require filing of generally available advertising, and such a filing requirement could be a substantial burden in view of the ease and frequency with which websites can be amended. Rather, in the Committee's opinion, globally accessible, yet individually-accessed, 3 websites are most like broadcast advertisements for purposes of DR 2-101(F), in that they are generally available to anyone with equipment to receive or access them, but can be evanescent and are not widely available in a permanent record. We conclude that lawyer's websites advertising their legal services should be treated like broadcast advertising for purposes of the filing requirement so that no filing should be required by DR 2-101(F). Accord N.Y. State 709 (1998). Cf. N.Y. County 721 (1997) (listing of attorney's name and address on Internet website is a form of directory that need not be filed). 4

Likewise by analogy to the broadcast provisions of the rule, we believe the Law Firm must retain, for a period of not less than one year, a copy of its website pages, including a copy, for the requisite period, of each version as changes are introduced. Given the rapidly changing technology in this area, the manner of preservation is flexible, as long as it permits review of the contents, including multi-media effects, of the website. For example, preservation may be in the form of a standalone mirror of the website software and files, or in a completely different format, such as a video tape of a demonstration of the website. (If there are no multi-media effects on the website, preservation by simple hard-copy printout would be sufficient for this purpose.)

We do not believe that Law Firm need retain copies of the contents of outside sites linked to its web page. Links to outside sites should, of course, clearly indicate to the web browser that they are not maintained by Law Firm.

Internet Discussion Area

As noted above, Law Firm is considering establishing a listserv-type discussion area. An Internet listserv group or “mail exploder” discussion area basically consists of a list of e-mail addresses maintained such that a single posting (e.g., an e-mail letter, or the text of an article), sent via e-mail to the listserv group, is forwarded, or exploded, to all of the subscribers of the group. Subscribers may post a response or comment to the group as a whole, or, as is also common, solely to the initial poster for a side discussion. Listserv groups also commonly provide certain archiving, digesting and key-word searching of postings. In order to subscribe (or unsubscribe) from a listserv group, an individual e-mails the listserv group administrator. Subscription may be automatic upon request, or discretionary with the administrator. Further, depending on the time and inclination of the administrator, a listserv group may be moderated in which case the administrator reads each proposed posting and subjectively determines whether its content and tone are appropriate for the group, rejecting those deemed unsuitable. In an unmoderated listserv group, responses directed to the group are automatically posted. Because Law Firm has not determined exactly what type of listserv group it would like to operate, we offer only the following general observations as to how the Code of Professional Responsibility may apply to a listserv group.

In general, a discussion area would be most immediately regulated by paragraphs A, C and E of DR 2-104, which provide as follows:

A.A lawyer who has given unsolicited advice to an individual to obtain counsel or take legal action shall not accept employment resulting from that advice, in violation of any statute or court rule.

C.A lawyer may accept employment which results from participation in activities designed to educate the public to recognize legal problems, to make intelligent selection of counsel or to utilize available legal services.

E.Without affecting the right to accept employment, a lawyer may speak publicly or write for publication on legal topics so long as the lawyer does not undertake to give individual advice.

Ethical Consideration 2-5 is also pertinent to an Internet discussion area:
A lawyer who writes or speaks for the purpose of educating members of the public to recognize their legal problems should carefully refrain from giving or appearing to give a general solution applicable to all apparently similar individual problems since slight changes in fact situations may require a material variance in the applicable advice; otherwise, the public may be misled and misadvised. Talks and writings by lawyers for non-lawyers should caution them not to attempt to solve individual problems upon the basis of the information contained therein.

The dynamics of written legal discussions on the Internet are different from those of oral public discussion, in part because the written word is generally given more weight, and may benefit from longer retention and study, than the oral word. Accordingly, if Law Firm does establish a discussion area, substantial caution and vigilance are advised.

Law Firm has noted that "if specific legal advice is sought, we will indicate that this requires establishment of an attorney-client relationship which cannot be carried out through the use of a web page." While this Committee does not opine on matters of law, we note that this disclaimer may not necessarily serve to shield Law Firm from a claim that an attorney-client relationship was in fact established by reason of specific on-line communications. Caution particularly given the multi-jurisdictional reach of the Internet is again advised in this area. See, e.g., Ethics, Malpractice Concerns Cloud E-Mail, On-Line Advice, 11 ABA/BNA Laws. Man. Prof. Conduct 3 (1996).

It might be argued that almost any question and answer may in fact constitute legal advice, even if the questioner does not appear to be seeking "specific" legal advice.

Law Firm must be also be cautious that the discussion area not develop into what may be perceived as advertising, cf. N.Y. State 625 (1992) (A message delivered to the caller of a 900 number constitutes an advertisement if it invites the caller to seek additional services from the lawyer who prepared the message. Such an invitation may be expressed or implied, such as by providing the office telephone number of the lawyer.), or as an impermissible solicitation. 5 We do not believe that the mere hosting of a listserv discussion area by Law Firm conducted in the spirit of EC 2-5 and DR 2-104(C), necessarily implies that the discussion area constitutes an advertisement.

Furthermore, we do not believe that a private communication by Law Firm, as discussion group moderator, to a subscriber who appears to be in need of individual legal advice that he or she should consult an attorney would necessarily transform the entire listserv discussion area into an advertisement, even if the communication was accompanied by information that would permit the subscriber to contact Law Firm itself. In our opinion, such a communication is analogous to an attorney handing out his card to inquiring persons after a speaking engagement.

However, in communicating that the subscriber appears to be in need of individual legal advice Law Firm should stress that the subscriber ought to consult an attorney, not necessarily Law Firm.

Provision of Trademark Services

Law Firm also proposes to offer services via its website, including trademark and copyright searches. These are services that, in practice, are performed both by intellectual property law firms and by specialized, non-legal, trademark and patent search companies. 6 The New York Code of Professional Responsibility does not contain a provision analogous to Model Rule 5.7 which covers Responsibilities Regarding Law-related Services. 7 However, the New York Code of Professional Responsibility has been interpreted in a manner generally consistent with Rule 5.7. See, e.g., N.Y. State 662 (1996):

This Committee has recognized that there are a number of services that can be performed appropriately by both lawyers and nonlawyers. See, e.g., N.Y. State 557 (1984)(tax return preparation); N.Y. State 633 (1992)(financial planning). Nonetheless, "[w]hile there are many services that may properly be undertaken by lawyers and nonlawyers alike . . . when such services are performed by a lawyer who holds himself out as a lawyer, they constitute the practice of law and the lawyer, in performing them, is governed by the Code." N.Y. State 557 (1984); ABA 297 (1961).

Consistent with the foregoing, the Committee has concluded that if an individual accesses Law Firm's website and requests a trademark search, satisfaction of the request would constitute the provision of legal services. In other words, a de facto attorney-client relationship would be established. That relationship, however, would trigger the full panoply of disciplinary rules including the provisions governing the protection of client confidences and secrets, conflicts of interest, fee schedules 8 and the recently adopted conflict check provisions of NYCRR 1200.24. Accordingly, while a non-legal search firm may be free to post a webpage input form for a customer to request a trademark search, Law Firm may not post such a page because Law Firm would not be able to conduct the inquiries needed prior to the establishment of an attorney-client relationship. On the other hand, we see no objection to use of an on-line form by an established client of Law Firm to request a trademark search provided that Law Firm is able to conduct the necessary conflict of interest checks. 9

Finally, we note that DR 3-102, “Dividing Fees with a Non-Lawyer,” would preclude the Law Firm from paying any fee to its Internet service provider based on fees earned by Law Firm from the provision of on-line legal services.

Security of Communications

Based on our present knowledge, we do not believe that communications over the Internet are so insecure as to prohibit an attorney from conducting any legal business whatsoever over it. See N.Y. State 709 (1998); District of Columbia 281 (1998) (although some early opinions expressed view that unencrypted e-mail violated confidentiality rules, the prevalent view, which this Committee adopts, is that electronic transmission is in most instances an acceptable form of conveying client confidences even where the lawyer does not obtain specific client consent). We note that the New York Civil Practice Law and Rules was amended in July to provide explicitly that privileged communications will not lose their privileged character simply because they were communicated by electronic means. CPLR 4547. That does not resolve the ethical question, but is further evidence of a growing consensus that e-mail is a reasonably secure means of communications. Accordingly, the Committee has concluded that a lawyer in most cases is not precluded from making available an unencrypted on-line form for existing clients to request the provision of legal services of the nature discussed here.

As with cellular and cordless telephones, however, it would be advisable for Law Firm to advise its clients and prospective clients that the security of communications over the Internet is not equal to that of other forms of communication that are generally accepted as secure, such as the U.S. Mail, express delivery companies, or the telephone. Cf. N.Y. City 1994-11 (lawyers should be circumspect...when using cellular or cordless telephones, or other similar means of communication, to discuss client matters, and should avoid, to the maximum reasonable extent, any revelation of client confidences or secrets). This technologically developing area has attracted the attention of "professional snoopers [who] can exploit 'sniffer' software and powerful search engines to find messages of interest." Confidentiality Electronic Communications Practice Guide, ABA/BNA Laws. Man. Prof. Conduct 55:401, 409 (1996). Different levels of security on the Internet as well as off the Internet would seem to be appropriate for matters of differing sensitivity. But we do not believe that a blanket prohibition on the use of e-mail for client communications is either necessary or appropriate.

CONCLUSION

Subject to the limitations expressed in the foregoing opinion, the Committee answers question 1(a) in the affirmative and 1(b) in the negative; question 2 in the affirmative; question 3 in the negative; question 4 in the affirmative for existing clients but not for new ones; and question 5 in the affirmative.

Issued:December 21, 1998


1 See, e.g., Iowa Sup. Ct. No. 96-1; Pa. Bar Ass'n No. 96-17. See generally Advertising and Solicitation: Internet--Practice Guide, ABA/BNA Laws. Man. Prof. Conduct 81:551 (1996).
We do not deal here with websites that are designed for other purposes, such as to recruit lawyers or staff employees.

2 DR 2-101(D) provides in full as follows:
Advertising and publicity shall be designed to educate the public to an awareness of legal needs and to provide information relevant to the selection of the most appropriate counsel. Information other than that specifically authorized in subdivision of this section that is consistent with these purposes may be disseminated providing that it does not violate any other provisions of this Rule.

3 Under present web protocol, a website is accessed when an individual “clicks” on a hypertext link. Thus, accessing a website generally involves a conscious selection by the web user, unlike, for example, a mass e-mailing, which may appear in a recipient's in-box without prior request or action by the recipient.

4 If the contents of the website were e-mailed to a targeted list of recipients, of course, filing would presumably be required.

5 Both DR 2-104(A) and DR 2-103(A) prohibit solicitation in violation of any statute or court rule. Section 479 of the New York Judiciary Law, which is thus incorporated by reference in both sections of the Code, states that it is “unlawful for any person . . . to solicit . . . either directly or indirectly legal business. We are aware that ethical and legal restrictions on solicitation by lawyers have been changing in response to evolving notions of constitutional protection for commercial speech. See, e.g., Peel v. Illinois Attorney Registration and Disciplinary Comm'n, 496 U.S. 91 (1990); Shapero v. Kentucky Bar Ass'n, 486 U.S. 466 (1988); Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985); Bates v. State Bar of Arizona, 433 U.S. 350 (1977). The present constitutional parameters of 479 are legal questions beyond the Committee's competence.

6 Law Firm is not proposing to set up an independent trademark and patent search company, the establishment of which would be guided by the principles enunciated in a number of opinions over the last two decades, including, e.g., N.Y. State 647 (1993) (attorney/bail bond agent); N.Y. State 636 (1992) (marketing of legal forms by an independent company); N.Y. State 536 (1981) (law practice and financial planning corporation); N.Y. State 493 (1978) (law practice and real estate brokerage business conducted from same office).

7 Model Rule 5.7 provides as follows:
Responsibilities Regarding Law-related Services
(a)A lawyer shall be subject to the Rules of Professional Conduct with respect to the provision of law-related services, as defined in paragraph (b), if the law related services are provided:
(1) by the lawyer in circumstances that are not distinct from the lawyer’s provision of legal services to clients; or
(2) by a separate entity controlled by the lawyer individually or with others if the lawyer fails to take reasonable measures to assure that a person obtaining the law-related services knows that the services of the separate entity are not legal services and that the protections of the client-lawyer relationship do not exist.
(b)The term “law-related services” denotes services that might reasonably be performed in conjunction with and in substance are related to the provision of legal services and that are not prohibited as unauthorized practice of law when provided by a nonlawyer.

8 For example, subsections H and I of DR 2-101 basically provide that a lawyer will be bound by published fee information for a period of not less than 30 days from publication. Insofar as we view publication of a website as a form of continuous publication, a lawyer desiring to change fee schedules would have to give at least 30 days' notice of the forthcoming change in fee structure to comply with this provision.

9 Since Law Firm has indicated that it does not intend to initiate a lawyer-client relationship over the web, we do not address what type of communications, if any, would be necessary and sufficient for that purpose.


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