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
CODE: DR 2-101(D), (F), (H), (I); DR
2-104(A), (C), (E); Canon 4; Canon 6; EC 2-5.
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
4. May a law firm post a form on its
website for new or existing customers to order trademark or
5. May a law firm send confidential client
communications by unencrypted Internet e-mail?
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
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
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
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
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
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 rules 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
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"
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
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
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
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.
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
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
We do not deal here with websites that are designed for other purposes, such as to recruit lawyers or staff employees.
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.
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
If the contents of the website were e-mailed to a targeted list
of recipients, of course, filing would presumably be required.
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
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).
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 lawyers 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.
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.