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| THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK 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? 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: 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). 2 DR 2-101(D) provides in full as follows: 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: 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. |