Professional Responsibility and
Confidentiality Considerations
When Using the Internet
Mary Frances Lapidus, P.C.
© 1997 Mary Frances Lapidus
September 1997
All rights reserved.
TABLE OF CONTENTS
I. The Nature of Internet Communications
- A. Overview of Internet
- B. Security Issues
II. Ethical, Privilege and Malpractice Implications
- A. Use of Internet E-mail to Communicate With or About Clients
- 1. The Attorney-Client Privilege
- 2. The Ethical Duty to Maintain Client Confidences
- 3. Common Sense Approach
- B. Lawyer/Law Firm Web Sites
- 1. Texas Advertising Rules Apply to Internet Web Pages
- a.Key Texas Advertising Rules
- i. Specialization Disclaimers
- ii. Jurisdictional Limitations
- iii. Publication of Name of Lawyer Responsible for Content
- iv. Disclosure of Geographic Location by City of the Firm's Principal Office
- v. Derivative Pages
- vi. Maintenance of Records
- 2. Compliance with Other State's Advertising Rules
- 3. Unexpected Implications
- C. Participation in Lawyer Referral Services
- D. Giving On-Line Legal Advice
- 1. General Ethical and Malpractice Implications
- 2. Specific Ethical Considerations and Opinions
- 3. Key Texas Solicitation Rules
- E. Caveat
Professional Responsibility and
Confidentiality Considerations
When Using the Internet
Part 2
B. Lawyer/Law Firm Web Sites
In addition to using the Internet to directly communicate with existing clients, lawyers are realizing the Internet's potential in practice development. Many lawyers have set up informative and attractive sites on the World Wide Web, the first page of which is usually referred to as the "home page". These web pages often display information about the lawyer or law firm, the biographies of the attorney or attorneys, and listings of representative clients. They often are used to highlight an area of practice or body of law in which the lawyer or firm concentrates by publishing an article or relevant statues, judgments or rulings. As web pages are used by lawyers and law firms in this manner, they are often viewed as advertising, thus implicating a number of ethical concerns.
Numerous states are studying the issue of how existing advertising rules apply to the Internet and whether rule changes are needed to protect consumers without unduly burdening lawyers and restricting the usefulness of the Internet as a medium for communication about the law and legal services. [N.99] A number of states, including Alabama, Arizona, Iowa, Illinois, North Carolina, Pennsylvania, South Carolina, Tennessee and Vermont, have already issued ethics opinions clarifying or providing guidance with regard to the application of existing advertising rules to Internet advertising. [N.100] In addition, the bar associations of Florida and Texas have issued specific guidance on the application of advertising rules to lawyer advertising on the World Wide Web. [N.101]
1. Texas Advertising Rules Apply to Internet Web Pages
In January 1996, the State Bar of Texas Advertising Review Committee approved additional interpretive comments to Part 7 of the Texas Disciplinary Rules of Professional Conduct. These comments attempt to clarify how Texas' advertising rules will be applied to attorneys' web pages. [N.102] Specifically, Interpretative Comment 17, Section A, provides that certain publications on the Internet are public media advertisements and are subject to the provisions of Part 7 of the Texas Disciplinary Rules of Professional Conduct. According to Comment 17, a firm publishing a home page on the Internet is now required to pay a fee to and file a hard copy with the State Bar of Texas Advertising Review Committee, including the URL address of: (1) the first screen which is sent to the computer of an accessing person when the home page location (URL) is accessed; and (2) any material changes in format that vary from the first screen of the original home page. [N.103]
Although Comment 17, Section B provides that information is linked to the Home Page is not required to be filed with the Advertising Review Committee, information beyond the first screen that is "primarily concerned with solicitation of prospective clients by a lawyer or law firm" still must comply with the Advertising Rules, including the filing requirements. Fortunately, Section B lists a number of examples which are not considered to be "primarily concerned with solicitation", including newsletters, news articles, legal articles, editorial opinions, illustrations, questionnaires, fact or opinion surveys, announcement of office openings and relocations, requests for information form the general public, legal product specifications, e-mail forms, attorney biographical information, attorney and support staff recruiting, job openings, legal developments and events, including verdicts, judgments, court rulings, announcements of seminars and registration by electronic mail. [N.104]
Unfortunately, however, matters that are within the "exemption list" are only exempt from the filing requirements. [N.105] Section C of Comment 7 requires that such exempted information still comply with the applicable provisions of the advertising rules, "including Rule 7.04(a-c) and (h-o)." Section C specifically requires that "Attorney biographical information must contain appropriate statements and/or disclaimers as required by 7.04(a-c)." Moreover, "the home page first screen must disclose the geographic location by city or town of the . . .firm's principal office." [N.106]
a. Key Texas Advertising Rules
The following summarizes some of the Texas Disciplinary Rules of Professional Conduct (the "Rule(s)") concerning advertising which a lawyer or law firm is most likely to encounter with regard to an Internet web page. This list, however, is not intended to be exhaustive, and the lawyer or law firm should thoroughly review Rules 7.01, et seq. of the Texas Disciplinary Rules of Professional Conduct and all applicable Comments.
i.Specialization Disclaimers
In short, unless a lawyer has been awarded a Certificate of Special Competence by the Texas Board of Legal Specialization in any area of practice mentioned in the web site, certain statements and/or disclaimers are required. Specifically, Rule 7.04(b)(3) requires that the lawyer state with respect to each area advertised in which the lawyer has not been awarded a Certificate of Special Competence by the Texas Board of Legal Specialization, "Not Certified by the Texas Board of Legal Specialization." Moreover, the quoted disclaimer language must be displayed conspicuously, "with no abbreviations, changes, or additions in the quoted language." [N.107] The disclaimer requirement may be triggered by Internet publication of attorney biographies or firm practice descriptions that discuss areas of practice or memberships in various organizations that imply an area of practice or expertise.
ii. Jurisdictional Limitations
Unlike some advertising media, web sites may be visited by residents of any state (or country, for that matter). [N.108] Therefore, a lawyer or law firm web page should clearly identify those states or jurisdictions in which the lawyer(s) are licensed or are not licensed to practice law. [N.109] Rule 7.01(b) specifically requires firms with offices in more than one jurisdiction to indicate the jurisdictional limitations of those not licensed to practice in the jurisdictions in which the firm has offices.
iii.Publication of Name of Lawyer Responsible for Content
Rule 7.04(b)(1) requires that a firm publish the name of at least one lawyer who is responsible for the content of the advertisement.
iv. Disclosure of Geographic Location by City of the Firm's Principal Office
Rule 7.04(j) requires that a firm that advertises in the public media on the Internet disclose the geographic location, by city or town, of the firm's principal office. In addition, Comment 17 to Part 7, Section C of the Texas Disciplinary Rules of Professional Conduct requires this disclosure on the home page first screen. [N.110]
v. Derivative Pages
Although derivative pages that are not "primarily concerned with solicitation of prospective clients" do not have to be filed with the Advertising Review Committee, if material on derivative pages is not specifically exempted by Section B of Comment 17 it may be wise to file such derivative pages with the Advertising Review Committee. If the State Bar Advertising Review Committee were later to determine that such derivative pages were, in their opinion, "primarily concerned with solicitation of prospective clients", then the failure to have submitted this information would be a violation of the Advertising Rules.
vi. Maintenance of Records
Rule 7.04(b) also requires that copies be maintained of each version of a lawyer or law firm's Internet pages, along with supporting documentation and any approval documentation, for four years from the date of its last dissemination.
2. Compliance with Other State's Advertising Rules
As mentioned above, unlike some advertising media, web sites may be visited by residents of other states. This "netvertising" phenomenon is prompting debate within the legal profession over which states' advertising standards should apply. [N.111] Depending upon the applicable laws of the accessing person's jurisdiction, or the jurisdiction of the lawyer or law firm, a lawyer or law firm might be subject to scrutiny for practicing law or advertising in a jurisdiction in which it or its lawyers are not licensed. [N.112]
In the face of uncertainty about which state or states' rules apply to Internet advertising, a lawyer or law firm should, at a minimum, clearly identify the states in which each of its lawyers is licensed and not licensed to practice law. [N.113] Lawyers licensed in more than one jurisdiction should comply with the ethics rules on advertising in all the states in which the lawyer is licensed. [N.114] Similarly, a law firm with offices in more than one state should comply with the advertising rules of each of the states in which it maintains offices, as well as all the states in which members of the firm are licensed. [N.115] Unfortunately, the "lowest common denominator" approach of complying with the most restrictive rules probably will not work, given the great variety of specific provisions, such as disclaimer requirements. [N.116]
3. Unexpected Implications
Law firm web pages frequently provide a link to the law firm by which visitors to the site can directly contact the law firm. Law firm web pages also often include articles written by firm lawyers. What if a visitor to the site relied upon information in an article in handling their own legal matter with an unsatisfactory result? What if a visitor to the site used the link made available on the site to send the law firm information, albeit unrequested, which then conflicted the lawyer out of representation of one of its best clients in one of their biggest cases? What if the visitor sent information to the law firm which should alert the law firm that limitations on the visitors' potential claim expire
tomorrow?
As you can see, there are issues related to the creation of an attorney-client relationship and the duty to maintain conflict-free representation which are implicated. A full discussion of these issues is beyond the scope of this paper; however, the law firm should be aware of these potential problems. Some law firms have responded to these concerns by posting disclaimers on their web sites which clearly indicate that the materials are for informational purposes only and are not legal advice, that the information does not create and the receipt of it does not constitute an attorney client relationship, and that readers should not act upon the information without seeking professional counsel. [N.117] Some law firm web pages also specifically direct the visitor not to send any confidential information to the firm before speaking to an attorney at the firm and obtaining authorization to send the information. [N.118]
C. Participation in Lawyer Referral Services
Rule 7.03(b) allows lawyers to pay the usual charges of a lawyer referral service, but only if that service meets the stringent requirements of Article 320d of the Texas Revised Civil Statutes, which includes certification by the State Bar of Texas and requires, among other things, that the service be organized as governmental or nonprofit entity, operated primarily for the benefit of the public.
D. Giving On-Line Legal Advice
Non-lawyers often pose legal questions on-line, either in "chat" groups ("real time" discussions among users who type their comments, usually through commercial on-line services), in usenet newsgroups and their forerunner, bulletin boards (where users can browse through messages on different topics), in discussions on listservs (automated handlers that distribute messages among subscribers on a list), or in e-mail to lawyers at their sites on the World Wide Web. [N.119] Alternatively, some lawyers may post messages to newsgroups, listservs, or chat groups marketing their services. These types of direct contact between lawyers and non-lawyers implicates numerous ethical and malpractice concerns.
1. General Ethical and Malpractice Implications
Most obviously implicated are ethics rules concerning lawyers' direct contact with prospective clients. Although the rules vary from state to state, most jurisdictions draw distinctions -- which do not easily fit in the Internet context -- between in-person, telephone, and written contacts, based upon perceived distinctions in the level of potential for deception, harassment, vexation and overreaching. [N.120] For similar reasons, contact which is initiated by the prospective client is also frequently distinguished. [N.121] Also of significance is whether the prospective clients are known to be in need of legal services in a particular matter. [N.122]
Lawyers and law firm's who decide to use the Internet for direct contact with prospective clients should review the ethical rules regarding solicitation for all jurisdictions in which the lawyer or lawyers within the firm are licensed and then evaluate how the particular Internet contact could be viewed under those rules. Lawyers who answer legal questions on-line should also keep in mind that the ethical obligation of confidentiality may apply to communications with a potential client seeking representation. [N.123] More importantly, the lawyer should consider that responding to an on-line legal question carries the risks of creating an attorney-client relationship -- with all the attendant duties such as confidentiality, competence, conflict-free representation -- and exposure to malpractice claims. [N.124] In addition, when a lawyer considers responding to legal questions which may come from other jurisdictions, complicated questions about the unauthorized practice of law may come into play. [N.125]
Another concern is that a non-lawyer may rely on legal information posted at web sites or on lawyers' comments on legal issues in e-mail posted to newsgroups or distributed through listservs. [N.126] This potentially implicates not only simple malpractice liability, but arguably negligent misrepresentation claims as well. [N.127] The tort of negligent misrepresentation does not require privity, but only a pecuniary loss, resulting from justifiable reliance, upon false information, supplied in the course of a business or profession, for the guidance of others in their business transactions; if the supplier fails to exercise reasonable care or competence in obtaining or communicating the information. [N.128] Accordingly, some lawyers append disclaimers to their on-line advice, some of which include that the advice does not constitute a legal opinion, is general in nature, and should not be acted upon without professional legal advice. [N.129]
2. Specific Ethical Considerations and Opinions
Only a few ethics opinions have been issued which specifically deal with on-line legal advice. [N.130] A South Carolina ethics committee decided it is permissible for attorneys to maintain a presence on electronic media for the purpose of discussing legal topics generally, "without the giving the advice or the representation of any particular client." [N.131]
Similarly, an Illinois ethics committee opined that the mere posting of general comments on bulletin boards or in chat groups should not be considered solicitations. [N.132] However, if the lawyer sought to initiate an unrequested contact with a specific person or group as a result of participation in a bulletin board or chat group, then the lawyer would be subject to the requirements of the advertising, and presumably, solicitation rules to the extent implicated. [N.133] Finally, the committee opined that lawyers participating in chat groups or other on-line services that could involve offering personalized legal advice to anyone who happens to be connected to the service should be mindful that the recipients of such advise are the lawyer's clients, with the benefits and burdens of that relationship. [N.134] Without a method for screening for conflicts of interest with these new "clients", lawyers could find themselves in violation of ethics rules regarding conflicts of interest. [N.135] An Arizona ethics committee similarly concluded that lawyers should not answer specific legal questions in "chat rooms" or "newsgroups" because of the perceived inability to screen for potential conflicts with existing clients and disclosure of confidential information. [N.136]
The Arizona ethics opinion concluded that direct e-mail contact with a prospective client could violate ethics rules or trigger certain disclosure requirements associated with advertising and solicitation rules. [N.137] Not surprisingly, the opinion focused on whether the lawyer or the potential client initiated the contact. [N.138] The opinion contrasts situations where (1) a lawyer answers a question in a "chat room (the lawyer does not initiate the contact)," (2) a lawyer responds to a direct inquiry, and (3) communications are sent to all members of a listserve. [N.139] In the latter, the lawyer must comply with the ethical rules regarding solicitations including rules regarding disclaimers. [N.140]
Tennessee Ethics Opinion 95-A-570 similarly concluded that a promotional posting to newsgroups constituted an improper solicitation. [N.141] The opinion concluded that the posting was more like a phone contact than a letter, because a posting to newsgroups imposes extra access charges on users, intrudes on their privacy, and cannot be easily ignored. [N.142] Other commentators have analogized a newsgroup posting to a newspaper ad. [N.143] However, newsgroups are more narrowly focused. [N.144]
Like the Arizona opinion, the Tennessee Ethics Opinion seems to differentiate between broadcast postings to newsgroups which are solicitation and answering requests for legal advice posed by potential clients. [N.145] Presumably, the initiator is important in determining whether the conduct is a prohibited solicitation or a permitted advertising. [N.146] If a lawyer creates his or her own group and then responds to posts, it becomes unclear whether the lawyer would be viewed as responding to client initiated questions; especially since the lawyer created the forum for discussion. [N.147]
On the other hand, an unsolicitated message sent directly to an individual e-mail address would seem to be even more offensive than a newsgroup posting. Although such an e-mail bears a resemblance to a mailed letter, it obviously reaches potential clients more quickly and may be more intrusive. [N.148] Lawyers should consider whether a court or disciplinary board might construe e-mail solicitation as a prohibited telephone contact rather than a permissible written communication. [N.149] Moreover, attorneys should consider whether a court or disciplinary board might construe e-mail solicitation in general, or a particular instance of promotional e-mail, as overreaching or exerting undue influence. [N.150] On the other hand, part of the rationale for prohibiting in-person and live telephone contact does not apply to promotional e-mail, since it is a recorded form of communication. [N.151] (Recorded communications are believed to be less likely to involve abusive practices or false and misleading statements because they may be shared with third parties and their contents cannot be disputed). [N.152]
"Real time" conversation in chat groups is more analogous to in-person or live telephone contacts than other types of on-line advice. [N.153] The discussions are much like an actual conversation, except that the dialogue is textual rather than oral. [N.154] Unlike telephone or in-person conversations, however, on-line "real time" electronic conversations are recorded. [N.155] This makes third-party review possible and thus diminishes the likelihood of abusive practices and false or misleading statements. [N.156] However, the typed conversations quickly disappear as other lines are typed. [N.157] As a result, it becomes difficult to determine who initiated the conversation, and whether solicitation has taken place. [N.158] On the other hand, these discussions arguably do not involve "private importuning" so as to warrant invoking the prohibition against in-person or live telephone solicitation. [N.159]
Some commentators have opined that ethics opinions on the propriety of lawyers' participation in educational television, radio shows, or various "ask the lawyer" events or forums provide some general guidance by way of analogy. [N.160] These opinions express concern about a host of issues such as solicitation;[N.161] specialization claims;.[N.162] conflicts and confidentiality;.[N.163] and forming an attorney-client relationship.. [N.164] Subject to these many caveats, the activities have generally been approved.. [N.165]
3. Key Texas Solicitation Rules
No Texas ethics opinions could be located relating specifically to the giving of on-line advice. The following summarizes some of the Texas Disciplinary Rules of Professional Conduct (the "Rules") concerning solicitation which must be considered in determining whether giving on-line advice is a permissible or prohibited solicitation in Texas. This list is not intended to be exhaustive, however, and the lawyer or law firm should review Part 7 of the Texas Disciplinary Rules of Professional Conduct and all applicable Comments.
Texas Disciplinary Rule of Professional Conduct 7.03 provides that:
. . . a lawyer shall not by in-person or telephone contact seek professional employment concerning a matter arising out of a particular occurrence or event, or series of occurrences or events, from a prospective client or nonclient who has not sought the lawyer's advice regarding employment or with whom the lawyer has no family or past or present attorney-client relationship when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain . . .
Comment 1 to Rule 7.03 explains that a lawyer may engage in telephone or in-person solicitation when the solicitation is unrelated to a specific occurrence, event, or series of occurrences or events. Similarly, in-person or telephone solicitations are permitted where the prospective client either has a family or past or present attorney-client relationship with the lawyer or where the potential client previously has contacted the lawyer about possible employment in the matter.. [N.166]
However, otherwise permitted in-person or telephone contact is prohibited if it involves coercion, duress, fraud, overreaching, intimidation, undue influence, or harassment; contains information prohibited by Rule 7.02(a); or contains a false, fraudulent, misleading, deceptive, or unfair statement or claim.. [N.167]
With regard to written solicitations, Rule 7.05 prohibits only written communications to a prospective client when the communication involves coercion, duress, fraud, overreaching, intimidation, undue influence, or harassment; the communication contains information prohibited by Rule 7.02 or fails to satisfy each of the requirements of Rule 7.04(a) through (c), and (h) through (o) that would be applicable if it were a public media advertisement; or the communication contains a false, fraudulent, misleading, deceptive or unfair statement or claim.
However, certain disclaimers and "ADVERTISEMENT" markings are required, unless:
(1) the written solicitation is directed to a family member or a person with whom the lawyer had or has an attorney-client relationship; or
(2) the written solicitation is not motivated by or concerned with a particular past occurrence or event or a particular series of past occurrences or events, and also is not motivated by or concerned with the prospective client's specific existing legal problem of which the lawyer is aware; or
(3) if the lawyer's use of the communication to secure professional employment was not significantly motivated by a desire for, or by the possibility of obtaining, pecuniary gain; or
(4) the written solicitation is requested by the prospective client.. [N.168]
Comment 4 to Rule 7.05 also specifically exempts newsletters or other works published by a lawyer that are not circulated for the purpose of obtaining professional employment.
In addition, written solicitations, like many public advertisements, generally must be filed with the Lawyer Advertisement and Solicitation Review Committee, either before or concurrently with the mailing or sending of a written solicitation communication, along with the appropriate fee, unless the written solicitation:
(1) is not motivated by or concerned with a particular past occurrence or event or a particular series of past occurrences or events, and also is not motivated by or concerned with the prospective client's specific existing legal problem of which the lawyer is aware; or
(2) is not significantly motivated by a desire for, or by the possibility of obtaining, pecuniary gain; or
(3) is requested by the prospective client.. [N.169]
E. Caveat
This paper addresses the state of the law and technology only as of the date of its writing (September 1997). Just as technology is rapidly advancing, so is the law and ethics opinions related to its use. Accordingly, the lawyer should conduct independent research paying particular attention to the changing ethical obligations and privilege issues raised by a lawyer's use of the Internet and Internet technology. This is difficult to do, given the speed at which the law and technology are changing, the multi-jurisdictional implications and the lack of readily available "published" ethical opinions in traditional sources. However, there is a web site dedicated to the unique ethical issues raised by the Internet and Internet Technology: http://www.legalethics.com. Legalethics.com provides links to many state ethics opinions, as well as news flashes regarding new cases and ethics opinions. A visit to this site can save the diligent lawyer enormous amounts of time. Good luck!
NOTES:
N.99: 69 Laws. Man. on Prof. Conduct 41, 42 (ABA/BNA)(Sept. 18, 1996). [Return to text]
N.100: Ala. Ethics Op. RO-96-07 (Oct. 23, 1996); Ariz. Advisory Op. 97-04 (April 7, 1997); Iowa Ethics Op. 96-1 (1996); Ill. State Bar Ass'n Op. No. 96-10 (May 16, 1997); N.C. RPC No. 239 (July 25, 1996); Pa. Ethics Op. 96-17 (1996); S.C. Ethics Op. 94-27 (1995); Tenn. Ethics Op. 95-A-570 (1995)(unpublished), Vt. Ethics Op. 97-5 (1997). [Return to text]
N.101: Interpretative Comment 17 to Part 7 of Texas Disciplinary Rules of Professional Conduct (1996), available along with additional guidelines at the Texas Bar and the World Wide Web, http://www.legaldir.com/pi/bar/tx.html; Ethics Update, Florida Bar News (Jan. 1, 1996). See also, Bell, Internet Use Raises Ethics Questions, California Bar Journal, at 36-37 (April 6, 1996)(director of professional competence, planning and development for the State Bar of California notes that State Bar of California is studying particular Internet advertising issues but opines that attorney advertisement and solicitation on the Internet is not unregulated but is broadly governed by the California Rules of Professional Conduct and the Business and Professions Code.). [Return to text]
N.102: Id. [Return to text]
N.103: Id. [Return to text]
N.104: Id. [Return to text]
N.105: Id. [Return to text]
N.106: Id. [Return to text]
N.107: Tex. Disciplinary R. of Prof. Conduct 7.04(b)(3)(c)(1995), reprinted in, Tex. Gov't Code Ann. tit.2, subtit. G app. (Vernon Supp. 1996)(State Bar Rules art. X, § 9). [Return to text]
N.108: 169 Laws. Man. on Prof. Conduct at 56. [Return to text]
N.109: Id. at 57.[Return to text]
N.110: Interpretative Comment 17 to Part 7 of the Texas Disciplinary Rules of Professional Conduct (1996) is available along with other additional guidelines at the Texas Bar and The World Wide Web, http://www.legaldir.com/pi/bar/tx.html. [Return to text]
N.111: 169 Laws. Man. on Prof. Conduct at 56. [Return to text]
N.112: Id. at 56-60. [Return to text]
N.113: Id. at 57.[Return to text]
N.114: Id. citing Hornsby, Ethics Rules for Ads May Cover Web Sites, Natl'l L.J. at C1,C18-19 (1/19/96).[Return to text]
N.115: Id. At least two states have officially taken the position that a firm with offices in many states must comply with its ethics rules if the firm has an office in that state or attorneys licensed to practice in that state. Ariz. Advisory Op. 97-04 (April 7, 1997); Iowa Ethics Op. 96-14 (1996).
[Return to text]
N.116: 169 Laws. Man. on Prof. Conduct at 56, citing Hornsby, Ethics Rules for Ads May Cover Web Sites, Nat'l J. at C1, C18-19 (1/19/96). [Return to text]
N.117: See, e.g., the following law firm web sites, last visited on July 21, 1997: http://www.cuh.com/disclaim.htm; http://www.buchalter.com/bnfymain.htm; http://www.wsgr.com/disclaim.htm; http://www.bccb.com; http://www.brouse.com; http://www.ffhsj.com/firmpage/disclaim.htm; http://www.kuesterlaw.com; http://www.arentfox.com/alers.html; http://www.cfg-lawfirm.com/articles/repose.html; http://www.mainelaw.com; http://www.sidley.com. [Return to text]
N.118: See e.g., Sidley & Austin's web site, last visited on July 21, 1997: http://www.sidley.com. [Return to text]
N.119: Rogers, supra note 55, at 67. [Return to text]
N.120: See id. at 48-50. See e.g., Tex. Disciplinary R. of Prof. Conduct 7.03 cmt. 1 (1995); Texas Disciplinary R. of Prof. Conduct 7.05 cmts. 2,6 (1995); Tenn. Ethics Op. 95-A-570 (1995) (unpublished); Model Rules of Professional Conduct Rule 7.3. [Return to text]
N.121: See 169 Laws. Man. on Prof. Conduct at 50. See e.g., Tex. Disciplinary R. of Prof. Conduct Rule 7.03 cmt. 1 (1995); Tex. Disciplinary R. of Prof. Conduct 7.05(e), 7.07(d)(8); Tenn. Ethics Op. 95-A-576 (1995)(unpublished); Model Rules of Professional Conduct Rule 7.3 cmt.; Dzienkowski, Ethics of Legal Practice Online, Communication and Conducting Business On-Line Seminar, The University of Texas School of Law, (May 16-17, 1996), at 11-12.
[Return to text]
N.122: See 169 Laws. Man. on Prof. Conduct at 49-50. See e.g., Tex. Disciplinary Rule of Prof. Conduct 7.03(a) & cmt. 1; Tex. Disciplinary R. of Prof. Conduct 7.05(e)(2), 7.07(d)(6); Model Rules of Professional Conduct Rule 7.3(c). [Return to text]
N.123: See Rogers, supra note 55, at 68 citing ABA Formal Ethics Opinion 90-358(1990) and Law. Man. Prof. Conduct.
[Return to text]
N.124: See Rogers, supra note 55, at 68. [Return to text]
N.125: Id. at 69. [Return to text]
N.126: Id. at 70-72. [Return to text]
N.127: Id. [Return to text]
N.128: Id. at 71-72 citing Restatement (Second) of Torts, Section 552(1) (1977). See also Federal Land Bank v. Sloane, 825 S.W.2d 439, 442 (Tex. 1991)(adopting Restatement's definition of negligent misrepresentation). [Return to text]
N.129: Rogers, supra note 55, at 69-72. [Return to text]
N.130: Ill. State Bar Ass'n Op. No. 96-10 (May 16, 1997); Ariz. Advisory Op. 97-04 (April 7, 1997); S. C. Ethics Op. 94-27; Tenn. Ethics Op. 95-A-570 (1995)(unpublished). [Return to text]
N.131: S. C. Ethics Op. 94-27. [Return to text]
N.132: Ill. State Bar Ass'n Op. No. 96-10 (May 16, 1997). [Return to text]
N.133: Id. [Return to text]
N.134: Id. [Return to text]
N.135: See id. [Return to text]
N.136: Ariz. Advisory Op. 97-04 (April 7, 1997). [Return to text]
N.137: Id. [Return to text]
N.138: Id. [Return to text]
N.139: Id. [Return to text]
N.140: Id. [Return to text]
N.141: Tenn. Ethics Op. 95-A-570 (1995)(unpublished). [Return to text]
N.142: Id. [Return to text]
N.143: See, Note, Attorney Advertising and Solicitation on the Internet: Complying with Ethics Regulations and Netiquette, 13 J. Marshall J. Computer & Info. L. 697, 714, 716 (1995); Dzienkowski, supra note 121, at 11. [Return to text]
N.144: See Note, Attorney Advertising and Solicitation on the Internet, supra note 143 at 716. [Return to text]
N.145: Dzienkowski, supra note 121, at 11. [Return to text]
N.146: Id. [Return to text]
N.147: See id. [Return to text]
N.148: 169 Laws. Man. on Prof. Conduct at 49. [Return to text]
N.149: Id. citing Tenn. Ethics Op. 95-A-570 (holding, in context of promotional e-mail to newsgroups, that prohibition against telephone contact applies).[Return to text]
N.150: 169 Laws. Man. on Prof. Conduct at 49-50. [Return to text]
N.151: Id. at 50. [Return to text]
N.152: Id. citing Model Rules of Professional Conduct Rule 7.3. cmt. [Return to text]
N.153: 169 Laws. Man. on Prof. Conduct at 50. [Return to text]
N.154: Id. [Return to text]
N.155: Id. [Return to text]
N.156: Id. [Return to text]
N.157: Dzienkowski, supra note 121, at 12. [Return to text]
N.158: See id. [Return to text]
N.159: 169 Laws. Man. on Prof. Conduct at 50 citing Model Rules of Professional Conduct Rule 7.3 cmt. [Return to text]
N.160: Rogers, supra note 55, at 68; Dzienkowski, supra note 121, at 10. [Return to text]
N.161: Ohio (Supreme Court) Ethics Op. 94-13 (1994). [Return to text]
N.162: See e.g., Iowa Ethics Op. 91-50 (1992), and N. H. Ethics Op. 1992-93/11 (1993). [Return to text]
N.163: See e.g., N. H. Ethics Op. 1994-95/3 (1995). [Return to text]
N.164: Ohio (Supreme Court) Ethics Op. 92-10 (1992). [Return to text]
N.165: Rogers, supra note 55, at 68. But see Iowa Ethics Op. 93-8 (1993). [Return to text]
N.166: Tex. Disciplinary R. of Prof. Conduct 7.03 cmt 1. [Return to text]
N.167: Tex. Disciplinary R. of Prof. Conduct 7.03(a)(1)-(3). [Return to text]
N.168: Tex. Disciplinary R. of Prof. Conduct 7.05(b)(1)-(2), 7.05(e)(1)-(4). [Return to text]
N.169: Tex. Disciplinary R. of Prof. Conduct 7.07(a),(b),(d)(6)-(8). [Return to text]
|
