How to Avoid Losing your License ...

NOTICE: This article does NOT offer legal advice or legal opinions on any specific matters. Do not rely on it without seeking legal counsel.

Kurt X. Metzmeier is a graduate of the University of Louisville School of Law and has been a member of the Kentucky Bar since 1995. He is currently the Coordinator of Information Systems Services at the University of Kentucky College of Law, where he is responsible for managing the college's computer systems, integrating technology into the teaching of the law and instructiing students in the use of electronic resources in the practice of law. Metzmeier has an upcoming article appearing in Volume 86, Number 4 of the Kentucky Law Journal that analyzes the current and future state of Internet legal resources in Kentucky. His email address is kmetz1@pop.uky.edu and his official web page can be found at http://www.uky.edu/Law/CISS.

Shaun Esposito is a member of the Kentucky Bar since 1981, Shaun Esposito received his J.D. from the University of Louisville School of Law. Following a year as law clerk to Justice Marvin Sternberg of the Kentucky Supreme court, he spent five years with the Louisville Legal Aid Society. Esposito then spent three years as a Legal Writing and Research Instructor at Florida State University's College of Law. At Florida State, he earned a M.S. in Library and Information Studies. His work as a professional librarian started at the University of Toledo's College of Law Library. Since 1994, Esposito has worked at the University of Kentucky's law library, where he is the Reference and Electronic Information Services Librarian. His email address is shaun@pop.uky.edu.

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How to Avoid Losing your License
on the Information Superhighway:
Ethical Issues Raised by the Use
of the Internet in The Practice of Law

by Kurt Metzmeier and Shaun Esposito
Originally appeared in
The Kentucky Bar Association Bench & Bar
Volume 62, Number 2, Spring 1998. pp. 14-23.
© 1998 Kurt Metzmeier and Shaun Esposito
All rights reserved.

The last three years have seen a revolution in the way that Americans communicate with each other, entertain themselves, and research purchases and services. Millions of Americans have learned how to negotiate the expanding byways of the information superhighway. One of the most popular uses of the network of computers collectively known as the Internet is the transfer of written messages. Electronic mail, or email, is increasingly employed in the practice of law by small and large firms alike. A recent survey by the ABA's legal technology research center showed that 64% of responding small law firms reported using the Internet in 1997, up from 38% just one year earlier.⁽¹⁾ Some 54% of the respondents used email to communicate with colleagues, and 41% employed the Internet to communicate with clients.

Almost as popular as email is the use of the world-wide web.⁽²⁾ The same ABA study found that most large firms have invested in Internet development: A majority of the larger firms had firm web pages; 60% of those who did not have pages planned to create one in the near future.⁽³⁾ The ubiquitous web address has become as essential to American business as the toll-free number and the yellow page ad. The challenge for attorneys is to incorporate these new communication technologies into their practices without compromising the interests of their clients or falling afoul of the rules of professional ethics.

Using Email in the Practice of Law

The increasing use of email by law firms, as well as lingering doubts over the security of the Internet, has raised questions about whether the responsibility of lawyers to protect the confidentiality of client information is being unwittingly violated by the use of email to communicate with clients.⁽⁴⁾ Although the Kentucky bar has not yet visited the issue, the initial ethics opinions from other states have been mixed. Advisory boards in Iowa and South Carolina concluded early on that either encryption or the explicit consent of the client would be required to shield an attorney from ethics liability. The Illinois bar, on the other hand, has taken the position that because the likelihood of the interception of email is comparable to traditional communications and is heavily prohibited by federal law, no special protections are required. The split between these ethics advisory committees can, to a large degree, be explained by the varying degree of understanding that these bodies have of the technical processes involved in electronic communication over the Internet.

The increased use of email listservs and discussion groups has caused commentators to question whether the participation of attorneys in these forums is a form of advertising, or if it is more analogous to the participation of lawyers in public interest programs broadcast on radio and television.

How Email on the Internet Works

The Internet is, at its most basic level, a loosely interwoven network of computers connected by telephone lines that, by use of a variety of accepted rules, or protocols, can be used to exchange information. It was reportedly designed by the defense establishment to withstand a nuclear war on the idea that an open network of computers, each able to pick up the tasks of another, would be better able to adapt to the loss of component parts than a closed network.⁽⁵⁾ The transfer of messages from one computer account owner to another was one of the earliest uses of the Internet.

One relevant characteristic of email over the Internet is that the path of a particular piece of email is unpredictable. Instead of being transferred whole from the sender to the recipient, each email document is broken up by the sender's host computer into small "packets" of data, each roughly the size of a paragraph. Each packet is then sent out onto Internet and passed from computer to computer in a path determined by which computer is least busy at that millisecond. The packets are then reassembled by the recipient's host computer where the message remains until accessed and deleted by the recipient.⁽⁶⁾ The architecture of the Internet makes it extremely difficult to intercept a particular piece of email while the packets are on their journey. In fact, the majority of Internet email security breaches occur not on the Internet itself, but rather when a hacker gains access to the recipient's host computer or when a system administrator abuses his or her legitimate access rights. Tampering with electronic mail is a federal offense under the Electronic Communications Privacy Act and anyone who violates the ECPA risks both criminal and civil sanctions.⁽⁷⁾

Protecting Client Confidentiality

Neither Rule 1.6 of the Rules of Professional Conduct adopted by the Kentucky Supreme Court, nor the official Comments, explicitly provide guidance on the technical means used by lawyers to communicate with clients and share confidential client information with colleagues. The text of Rule 1.6 itself indicates only that "A lawyer shall not reveal information relating to the representation of a client unless the client consents after consultation . . . " By implication, the rule has been found to impose a responsibility on an attorney to prevent the inadvertent publication of client information,⁽⁸⁾ but there are currently no formal or informal ABA opinions or Kentucky formal ethics opinions that discuss the issue of email confidentiality. For guidance, the Kentucky lawyer must turn to the admittedly mixed message conveyed by the advisory bodies of other states that have examined the issue.

One of the first state ethics bodies to take up issue of the ethics of email communication was the South Carolina bar. In a 1995 opinion, the South Carolina Ethics Advisory Committee determined that "the confidentiality requirements of Rule 1.6 are implicated by any confidential communication which occurs across electronic media, absent express waiver by the client."⁽⁹⁾ The committee found what it believed was a cogent analogy to email communications in cellular telephony and noted three state ethics advisory opinions barring the use of cellular telephones to communicate confidential client information without that client's consent.⁽¹⁰⁾ Ignoring the possibility that perhaps another wire-based means of communications like ordinary telephony was more analogous than the cellular technology, which broadcasts signals over the air, the advisory committee found:

"Thus, it is the opinion of the committee that unless certainty can be obtained regarding the confidentiality of communications via electronic media, that representation of a client, or communication with a client, via electronic media, may violate Rule 1.6, absent an express waiver by the client."⁽¹¹⁾

The South Carolina opinion was followed in May 16, 1996 by a formal opinion of the ethics committee of the Iowa bar association that advised that: "Pure inter-exchange of information of legal information with clients [need not conform to advertising rules], but sensitive material must be encrypted to avoid violation of DR4-101 . . . "⁽¹²⁾ Apparently the ruling was later found to be too restrictive and was slightly revised three months later in an August 29, 1996 opinion:

"[I]f sensitive material is to be transmitted via e-mail, the lawyer must have written acknowledgment by client of the risk of the violation of Rule 4-101 [i.e. client confidentiality] and obtain consent for the communication via Internet or non-secure Intranet or other forms of proprietary networks. Otherwise the communication must be encrypted or protected by a password/firewall or other generally accepted equivalent security system. Opinion 95-30 is rescinded."⁽¹³⁾

The Iowa body did not go into its rationale in requiring either encryption or explicit consent, but it was no doubt influenced by the perception that email communication was somehow less safe than traditional forms of communication such as fax, telephone, courier and ordinary mail. The implicit assumption of the South Carolina and Iowa opinions was that email communication is inherently so unsafe as to require an assurance of "certainty" regarding confidentiality not required for other means of communication. Under this theory, only encryption or explicit waiver could satisfy Rule 1.6.

In stark contrast with the initial response of the South Carolina and Iowa ethics bodies (both of which later revised their opinions), the Illinois State Bar Association, in an intelligent and well-reasoned advisory opinion, found that attorneys may communicate with clients using ordinary, unencrypted email, unless unusual circumstances dictated otherwise.⁽¹⁴⁾ The Illinois committee began its opinion by noting the implied duty of lawyers to prevent the inadvertent publication of confidential client information, and recalled its opinion barring the transmission of client secrets over cordless and mobile telephones because of the susceptibility of that medium to interception. It then briefly discussed the opinions of the Iowa and South Carolina bodies, but decided those opinions were in error. The committee noted that "courts and ethics committees have uniformly held that persons using ordinary phones for confidential communications have a reasonable expectation of privacy. The three common types of electronic mail messages appear no less secure."⁽¹⁵⁾ The committee then examined three common types of email, finding them more analogous to wire-based telephony than over the air cellular and wireless technologies. The committee admitted that dishonest persons could intercept email at a host machine, but that same type of threat could occur using ordinary telephonic communication, and that, in each case, the Electronic Communications Privacy Act⁽¹⁶⁾ criminalized such activities: "The committee does not believe that the possibility for illegal interception by the personnel of an ISP (Internet Service Provider) makes it unreasonable to expect privacy of the message."⁽¹⁷⁾ The Illinois committee thus found:

"In summary, the Committee concludes that because (1) the expectation of privacy for electronic mail is no less reasonable that the expectation of privacy for ordinary telephone calls, and (2) the unauthorized interception of an electronic message subject to the ECPA is illegal, a lawyer does not violate Rule 1.6 by communicating with a client using electronic mail services, including the Internet, without encryption. Nor is it necessary, as some commentators have suggested, to seek specific client consent to the use of unencrypted email. The committee recognizes that there may be unusual circumstances involving an extraordinarily sensitive matter that might require enhanced security measures like encryption. These situations would, however, be of the nature that ordinary telephones and other normal means of communication would also be deemed inadequate."⁽¹⁸⁾

Since the Illinois decision, those state ethics bodies examining the issue of client communications via electronic mail have generally avoided requiring encryption or written waivers in all circumstances.⁽¹⁹⁾ Recently both Iowa and South Carolina have revised their previous opinions to allow greater freedom for unencrypted email.⁽²⁰⁾ Iowa shifted ground slightly to require a written waiver from the client, but South Carolina turned full circle recognizing a "reasonable expectation of privacy" in email communications that satisfied Rule 1.6.⁽²¹⁾ North Dakota, the latest state to take up the issue, refused to require encryption for "routine matters with clients, and/or other lawyers jointly representing clients."⁽²²⁾

So, Should a Kentucky Lawyer Avoid Email?

Although it is clear that recent decisions by ethics committees in other states indicate a strong trend toward the view that routine email communications are as safe as other ways attorneys maintain contact with clients, the absence of a state advisory opinion leaves a lawyer in Kentucky that chooses to use email with the legitimate fear that he or she will be second-guessed down the road. Some attorneys have decided to avoid the issue by refusing to use email, but the prevalence of email use makes this a short-term solution for most lawyers. Increasingly, potential clients will expect and, in many cases demand, the opportunity to communicate with their lawyer by email. Attorney's Liability Assurance Society (ALAS), a large attorney malpractice insurance firm, has carefully examined the issue and perhaps offers the soundest course. The ALAS insists that it is not necessary for its insured attorneys to encrypt ordinary client communications over the Internet to protect confidences. Nonetheless, it urges its clients to use "great caution" because of the possibility that courts and ethics committees "will be tempted to bypass a careful analysis" and hold that unencrypted email "either violates ethics rules or waives the [attorney-client] privilege."⁽²³⁾ Until the KBA offers any guidance on email communication, the prudent lawyer wishing to use email to communicate with his client should seek the client's written consent and perhaps investigate one of the email packages that includes encryption. Fortunately, several easy-to-use email packages with encryption capabilities are now beginning to enter the market.⁽²⁴⁾

Solicitation by email

Persons using email often subscribe to interactive discussion groups and listservs. Listservs or discussion groups are independently organized electronic forums where participants "post" email messages concerning the discussion topic around which the listserv or group has been organized. The participation by attorneys in public electronic forums may implicate ethics rules concerning advertisement and solicitation, especially when the topic of discussion explicitly involves legal issues. The Kentucky Rules of Professional Conduct regulate the way a Kentucky lawyer can broadcast information about his or her practice to the general public. There are specific rules concerning advertisements, direct and indirect solicitation, professional cards, telephone listings, announcements, signs, and letterheads. There is no discussion of the participation of lawyers on electronic discussion groups or listservs. However, Rule 7.02 which defines an advertisement, also notes exceptions to the advertising rules that are relevant to the activities of lawyers on listservs and online discussion groups. Rule 7.02(1)(f) states that:

"Any communication by a lawyer to third parties that is published or broadcast by a third party who is not in any way controlled by the lawyer, and for which publication or broadcast the lawyer pays no consideration, shall be exempt from all the provisions of these Rules except Rule 7.10 [Rule 7.10 bars "false, deceptive or misleading communication about the lawyer or the lawyer's service"]."

The rule seems to indicate that ordinary postings by an attorney to a listserv or discussion group would not be subject to advertising and solicitation rules so long as the group was independent of the lawyer and the lawyer not pay to post his message. However, if the posting did not flow from the topic of the group and/or explicitly solicited clients, this narrow exemption would likely not obtain. Four KBA formal ethics opinions relating to other media seem to support this theory. In Opinion KBA E-50, the committee said an attorney could appear on a commercially sponsored radio program in a "public service context" to discuss legal problems involved in real estate transactions. In Opinion KBA E-78, an attorney was allowed to write a series of articles for a local newspaper discussing probate and estate law. In 1975, a local bar association was allowed to place a series of articles in newspapers on legal issues by Opinion KBA E-110. Finally, Opinion KBA E-270 allowed a local bar association to sponsor a television show and allowed lawyers to participate. A number of states have also explicitly allowed the participation of attorneys in email discussion groups, so long as their participation does not cross over from discussion to solicitation,⁽²⁵⁾ but others have found it to be subject to rules regulating advertisements.⁽²⁶⁾

A few additional cautionary notes for attorneys using email. When using listservs and other electronic forums, lawyers need to be cautious that their replies are made publicly to the listserv, not privately to individuals. Answering questions "off-list" could inadvertently establish an attorney-client relationship or lead to a charge that the attorney is practicing law in a state where he or she is not licensed. Also, attorneys should take every means to ensure that email is properly addressed. Finally, lawyers must take care that their firm's technical support staff⁽²⁷⁾ and email service provider are competent and trustworthy.

Advertising on the World-Wide Web

An information explosion in the last few years has changed the Internet from a scholarly back road to a major marketplace for information, ideas and products. The web provides the opportunity for those using it to obtain graphically rich and visually appealing information with the click of a mouse. A major part of the web now deals with the marketing of products and services. Businesses ranging from auto dealers to book sellers have set up stalls on the information superhighway. Given these marketing opportunities, it is not surprising that lawyers have begun to promote themselves and market their services in this new marketplace.⁽²⁸⁾ The marketing of lawyers' services naturally raises questions of the propriety of lawyer advertising and the ethical questions inherent in such activity. Kentucky's rules on lawyer advertising make no specific reference to the web, but a number of other states have issued rules regarding this issue that may be instructive.

Basic Mechanics of the Web

Information on the web is provided through specific locations on the Internet known as home pages. Attorneys using the web for marketing will have a home page with a unique address. That address, known as an URL (Uniform Resource Locator) follows a standard naming convention that typically begins with http://www. and includes the name of the host computer and ends with a three-letter code that indicates whether the site is educational, governmental or commercial. Information consumers view these home pages through the use of a web browser, such as Netscape Navigator or Microsoft Internet Explorer. An interested person might reach the site by typing a known URL directly into the browser, or by "hyper linking" to it by clicking on a link to that site in another home page. Several web search engines also provide access to specific pages in response to a search query entered by the person seeking information. On a web browser the pages display in a graphical mode providing colorful packaging for the information conveyed. The underlying program language for a web page, Hypertext Markup Language (HTML) looks like gibberish to most web users, but provides a wealth of information about the home page creator's desired audience.

Attorney Web Pages as Advertising

Kentucky provides no specific guidance on whether attorney home pages fall under the general rules of attorney advertising. An examination of the rules dealing with lawyer advertising would seem to include this type of communication within their scope. Concerning applicability of the rules, Kentucky Rule of Professional Conduct 7.01 states that the rule "shall apply to advertisements related to or concerning legal services . . . " Under the definitions provided in Rule 7.02, "advertise or advertisement means to furnish any written, printed or broadcast information or any other communication containing an attorney's name or other identifying information" [with certain exceptions]. These provisions seem to strongly imply that Kentucky's rules cover web-based marketing. Few states' rules provide explicit mention of the web- or computer-based activities, but the ethics committees of a number of state bars have provided guidance through ethics opinions or commentaries. ⁽²⁹⁾

Reporting Requirements As Applied to Web Advertising

Kentucky Rule of Professional Conduct 7.05 provides the procedural mechanism required of all attorneys wishing to advertise. In particular, section 7.05(1)(b) requires that "simultaneously with the publication of any advertisement under this subsection, the attorney shall mail to the Commission . . . a copy of the advertisement, or if by radio or television, a fair and accurate representation of the advertisement plus a typed transcript of the words spoken . . .. A list of all persons or firms or groups to whom the advertising has been sent shall be maintained in the principal office in Kentucky of the advertising lawyer or firm for a period of two (2) years . . . "

Just what is required of a Kentucky attorney using the web is not clear from this rule. Would a notification of the home page's address (its URL) be enough? What about a printed copy of the home page? And, if so, how much of the home page--the opening screen, or every screen? Some law firms provide a wealth of information on various topics, and providing copies of all this material could become burdensome for both the attorney and the Commission. Nearly every home page provides links to other sites maintained by third parties. Would hard copies of these sites also be necessary? Web pages require constant updating and changing. Are Kentucky attorneys under a continuing duty to disclose any changes to the web page by providing additional hard copies of the whole web site or just the changes? Do any changes trigger the reporting requirement or just material ones, and if so, what is a material change?

While Kentucky has remained silent on these points, other states have offered some guidance to attorneys attempting to comply with these type of requirements. Florida's Bar Ethics Department advised that a hard copy must be filed with the department, as well as a statement explaining when and where it will appear.⁽³⁰⁾ Although Florida provides some guidance with this bit of advice, it still provides little insight into the amount of material that must be filed. And, the advice seems to be ignorant of how the web is used. Any web user anywhere could view the page with the click of a mouse. It would be impossible for an attorney to know who will view the page. Texas has provided more guidance on the amount of material to be filed, limiting it to the first page viewed and any subsequent screens primarily dealing with client solicitation. ⁽³¹⁾ Iowa has also provided that the first screen and biographical screens must contain required disclosures.⁽³²⁾ Recently, the Utah State Bar Ethics Advisory Opinion Committee advised attorneys to keep copies of all pages of the web site (not just the initial home page) for the required two year period.⁽³³⁾ Recognizing that web pages are frequently updated, the Committee approved the retention of electronic rather than hard copies of the changes to web pages. The North Carolina Bar's Ethics Committee, also recognizing the frequency of web page updates, requires hard copies be retained only of any "material changes in format or content" to the original pages.⁽³⁴⁾

Jurisdiction and Choice of Law on the World-Wide Web

By its very nature, the web spans the globe; it is, after all, the world-wide web. Thus, persons anywhere in this country or around the world might access a given home page. This raises troublesome questions for both the advertising attorney and the bar's governing ethical body. Which state's ethical rules apply: the attorney's home state, or any state where someone can access the home page?⁽³⁵⁾ Must an attorney licensed in more than one state meet requirements in all states in which the attorney is licensed? And for those states where the attorney is not licensed, does contact with potential clients in those states resulting from web pages give rise to unauthorized practice of law problems?⁽³⁶⁾

Although no reported cases deal specifically with attorney web advertising, conflicting decisions have been issued by courts concerning jurisdictional issues related to web pages.⁽³⁷⁾ Many commentators believe that attorneys should list those jurisdictions in which they are admitted to practice, in order to avoid any confusion and to remain consistent with those ethical rules requiring the avoidance of false, deceptive or misleading communications (see Kentucky Rule of Professional Conduct 7.10). Cautious attorneys will at a minimum provide disclaimers about the limits of their practice and provide information about states in which they are licensed to practice. At minimum, attorneys should be certain to comply with the requirements for each state in which they are licensed.⁽³⁸⁾ Finally, some commentators suggest that the conflicting state rules are so confusing, some national standards need to be developed.⁽³⁹⁾

Web Pages As Solicitation

For the most part, states examining the topic consider web home pages with proper disclaimers to be akin to advertising rather than solicitation.⁽⁴⁰⁾ Solicitation rules are much stricter than those governing advertising (see Kentucky Rule of Professional Conduct 7.30). By their nature, web pages are viewed only when someone purposely chooses to seek out and view them. This makes a charge of improper solicitation very unlikely. Some commentators, though, have noted that with developing technology, such as interactive web pages, concerns about solicitation might grow.⁽⁴¹⁾ Even now, some have raised concerns about banner advertising (where a firm or company ad will appear, unsolicited, on a web search engine's page following entry of a research query). Additionally, web page creators can put keywords in fields used by Web search engines to determine whether a given site matches the search query entered by the user. Some web page designers "pack" this field with every possible relevant term, many duplicated or triplicated to increase possible hits. If a lawyer uses these tactics this could be held to border on solicitation depending upon the index terms used and how accurately they reflect the contents of the home page.⁽⁴²⁾

While existing ethical rules in Kentucky may seem to cover attorneys' activities on the web, the questions raised here, and the activities of the bar governing authorities in several other states, suggest the need for clarification of exactly how these rules apply to web activities. To craft meaningful new rules or commentaries on existing rules, the bar's governing authority must consult those who are knowledgeable about the workings of the web. If rule drafting in the area is left to persons without an understanding of how the web works, more rather than less confusion will likely result.⁽⁴³⁾

Conclusion

The information superhighway may be fraught with dangers for attorneys, particularly those who are apt to skirt the rules. Unwary lawyers may risk losing their license for inadvertently betraying client confidences, by soliciting clients on listservs and in chat rooms, or by passing over unclear ethical lines with a flashy web page. Despite these road hazards, attorneys will find that in the very near future a web page will be as essential as a shingle and a yellow page listing, and that clients will insist on using email to communicate with their lawyer, just as they use it to manage their businesses and to stay in touch with their kids.

1. American Bar Association, Legal Technology Resources Center, 1997 Small Firm Technology Survey (July, 1997); American Bar Association, Legal Technology Resources Center, 1997 Large Firm Technology Survey (July, 1997).

2. Id.

3. Id.

4. See, generally, William Freivogel, Communicating with or About Clients on the Internet; Legal Ethical and Liability Concerns, 1 ALAS Loss Prevention J. 17 (Jan. 1996).

5. A good description of the origin of the Internet, as well as its current architecture, can be found in Paul Gilstar's New Internet Navigator 19-43 (1995).

6. Id. at 19.

7. 18 U.S.C. § 2510 et seq (1994).

8. A widely used treatise of legal ethics notes that the "general obligation" under Rule 1.6 "gives rise to a number of duties." Charles W. Wolfram, Modern Legal Ethics §6.7.5 (1986). Among these duties is a duty "to see that the client's interest in full confidentiality of information is adequately protected. Conferences with clients should be arranged to avoid the presence of third parties. ... The lawyer's files should be confidentially maintained, and nonlawyer employees should be instructed, and periodically reminded, to keep all office matters strictly confidential." Id. Generally, all client communications, even those that are not "confidences," fall under this general obligation. See, KBA E-253 (1981) (committee advised that even the very existence of an attorney-client relationship should be held confidential).

9. S. C. Ethics Advisory Op. 94-27 (1995). This opinion was substantially revised in 1997 to allow unencrypted lawyer-client email communications. S. C. Ethics Advisory Op. 97-08 (1997).

10. Mass. Advisory Op. 94-5 (1994); N.Y.City Advisory Op.1994-11 (1994); N. H. Advisory Op. 1991-92/6 (1991).

11. S. C. Ethics Advisory Op. 94-27 (1995).

12. Iowa Formal Op. 95-30 (1996)

13. Iowa Formal Op. 96-1 (1996). The Iowa bar group further amended its opinion by adding the following language:

III. Pure exchange of information with clients is an exception to Division I of this opinion, but with sensitive material to be transmitted on email counsel must have written acknowledgment by client of the risk of violation of DR 4-101 which acknowledgment includes consent for communication thereof on the Internet or non-secure Intranet or other forms of proprietary networks to be protected as agreed between counsel and client.

Iowa Formal Op. 97-1 (1997)

Iowa attorney David A. Hirsch, whose appeal of 96-1 prompted the revision, argues that this "revision" only stated explicitly what was implied in its prior decision and, by adding the undefined phrase "sensitive materials" muddled the issue even further. Listserv discussion on legalethics-l@lawlib.wuacc.edu listserv (October 22-25, 1997).

14. Ill. State Bar Assoc. 96-10 (1996).

15. Id.

16. 18 U.S.C. §§ 2510-2520 (1998). The ECPA also makes any illegally intercepted communication inadmissible as evidence in any "trial, hearing or other proceeding" held under the authority of "the United States, a State, or a political subdivision thereof." 18 U.S.C. § 2515 (1998).

17. Ill. State Bar Assoc. 96-10 (1996).

18. Id.

19. Pa. [Informal] Op. 97-130 (1997); Mass. Bar Assoc., Inquiry Response No. 1997-T30 (1997). Internet legal ethics commentator Peter Krakaur sees a trend away from encryption that will grow as bar ethics bodies become more educated about the Internet. Peter Krakaur, E-mail Emancipation, 1.1 Internet Law Practice News 1 (Oct. 20, 1997).

20. Iowa Formal Op. 97-09 (1997); S. C. Ethics Advisory Op. 97-08 (1997).

21. Id.

22. State Bar Assoc. of N. D. Ethics Comm. Op. 97-09 (1997).

23. William Freivogel, Communicating with or About Clients on the Internet; Legal Ethical and Liability Concerns, 1 ALAS Loss Prevention J. 17, 19 (Jan. 1996).

24. One easy means of encryption is available to all attorneys worried about the transfer of confidential information: both Corel WordPerfect or Microsoft Word allow the password protection of documents. An attorney can simply password-protect the document, send it as an email attachment, and transmit the password by other means.

25. Ill. State Bar Assoc. Op. No. 96-10 (1996).

26. S. C. Ethics Advisory Op. 94-27 (1995); Mich. State Bar Comm., Informal Op. RI-276 (1996).

27. Prudent lawyers should treat those persons managing their computers and electronic networks as nonlawyer assistants subject to Rule 5.3 and "should give such assistants appropriate instruction and supervision concerning the ethical aspects of their employment, particularly regarding the obligation not to disclose information relating to the representation of the client, and should be responsible for their work product." Comment to SCR 3.130, Rule 5.3.

28. For an introduction to web marketing by a couple of savvy lawyers who know how to play by the rules, see Gregory H. Siskind & Timothy J. Moses, The Lawyers Guide to Marketing on the Internet (1996), distributed by the American Bar Association's Law Practice Management section.

29. Most opinions that have considered attorney web marketing consider the pages to be no different than other forms of print and electronic advertising. See Pa. Informal Op. 96-17 (determining that "a web page qualifies as 'public media'"); N.Y. Cty. Law. Assn. Comm. Prof. Eth. Op. No. 721 (1997)(determining that web page information is not prohibited by the Code of Professional Responsibility and constitutes advertising); Conn. Bar Assn. Informal Op. 97-29 (finding that "the same rules apply to Internet advertising that apply to advertising in other media"); Mich. Prof. Jud. Eth. Op. RI-276 (1996)(distinguishing among types of internet information and finding that where the user "initiates the contact with the posted information" normal rules concerning advertising, rather than those related to solicitation, apply); Cincinnati Bar Assn. Eth. Prof. Resp. Comm. Op. 96-97-01 (finding that ordinary rules of professional conduct apply to internet sites); Florida Bar Assoc., Standing Comm.on Advertising. Internet Guidelines (1997)(available at the FBA web site: http://www.flabar.org/Regulation/AdReg/

adguide.html)(advising that web pages fall under general advertising rules); Iowa Formal Op. 96-1 (1997)(determining that web pages fall under usual advertising rules); Utah Eth. Op. 97-10 (1997)(finding attorney web sites to be a form of advertising).

30. Florida Bar Assoc., Standing Comm.on Advertising. Internet Guidelines (1997). Available at the FBA web site: (http://www.flabar.org/Regulation/AdReg/adguide.html).

31. Texas Disciplinary Rules of Professional Conduct, Part 7, Interpretive Comment 17. For an extensive analysis of this Comment, see Mitchel L. Winick, et al, Attorney Advertising on the Internet: From Arizona to Texas--Regulating Speech on the Cyber-Frontier, 27 Tex. Tech L. Rev. 1487 (1996).

32. Iowa Formal Op. 96-1 (1997).

33. Utah Eth. Op. 97-10 (1997).

34. North Carolina State Bar Assn. Eth. Comm. Op. 239 (1997).

35. One Iowa ethics opinion has gone so far as to suggest that two distinct, unlinked web sites be maintained, one for Iowans, one for all others. Iowa Formal Op., 96-14 (1997). But see, Pa. Informal Op. 96-17 (warning that it may not be possible to comply with all advertising rules throughout the country due to their contradictory requirements).

36. For a discussion of one possible solution to the myriad of interstate problems, see Peter Krakuar, Internet Advertising: States of Disarray?: Are Uniform Rules a More Practical Solution, N.Y. Law J. (Sept. 15, 1997). See also Kathryn N. Fenton, Legal Ethics and the Internet, 11-Sum Antitrust 43 (1997)(discussing unauthorized practice of law issues).

37. In a series of cases dealing with the use of state long-arm statutes and the constitutional limits of personal jurisdiction, conflicting rulings have been handed down. See Compuserve, Inc. v. Patterson, 89 F.3d 1257 (6^th Cir. 1996)(finding personal jurisdiction appropriate in Ohio over Texas defendant whose only contact had been electronic with Ohio plaintiff Compuserve), see also Hall v. Laronde, 56 Cal. App. 4^th 1342, 66 Cal. Rptr. 2d 399 (1997)(holding personal jurisdiction appropriate where contacts with California were only electronic) and Telco Communications v. An Apple A Day, 977 F. Supp. 404 (E.D. Va. 1997)(finding personal jurisdiction appropriate under Virginia long-arm statute over Missouri defendant that placed material on web site that allegedly defamed Virginia corporation); but see Cybersell v. Cybersell, 130 F.3d 414 (9^th Cir. 1997)(holding that mere use of trademark on Internet advertisements by Florida defendant did not establish personal jurisdiction in Arizona); Bensusan Restaurant Corp. v. King, 126 F.3d 25 (2d Cir. 1997)(finding no jurisdiction under New York long arm statute over Missouri defendant where only contact with New York was web advertisement concerning defendant's Missouri establishment).

38. For a handy checklist of ethics considerations related to web advertising, see John B. Kennedy, Legal Advertising and Ethics on the World Wide Web, N.Y.L.J. S1 col. 5 (1/27/97); see also J.T. Westermeier and Leonard T. Nuara, Ethical Issues for Lawyers On the Internet and World Wide Web, 14 Computer Lawyer 8 (1997).

39. H. Geoffrey Moulton, Jr., Federalism and Choice of Law in the Regulation of Legal Ethics, 82 Minn. L. Rev. 73, 171 (1997)(stating, in regard to internet advertising, "we may have reached the point that effective state-based regulation of lawyer advertising and solicitation is a practical impossibility"); see also Peter Krakaur, Internet Advertising: States of Disarray?: Are Uniform Rules a More Practical Solution, N.Y. Law J. (Sept. 15, 1997).

40. See Mass. Bar Assoc. Op.1997-130 (Advising that not only are attorney web pages not solicitation but they are also not advertising under the rules) and Michigan Ethics Op. RI-276 (1996)(contrasting the posting of a web page with the direct solicitation involved with sending email to specifically targeted potential clients).

41. See Kennedy, supra, n. 37 (noting the continued development of "push" technology makes web pages much more interactive and much less like a "passive" television or radio advertisement).

42. In its interpretive comment concerning the application of ethics rules to internet activity, supra n. 30, the Texas disciplinary body included in its list of examples of activities generally not considered to be solicitation the following: questionnaires and survey forms, E-mail and E-mail response forms, online registration for seminars and events, and links to other internet sites.

43. Readers interested in monitoring further developments in this area should consult a new Kentucky legal ethics web page, the result of a joint effort of the Kentucky Bar Association and the University of Kentucky College of Law Library <http://www.uky.edu/Law/kyethics This site contains the text of recent KBA Ethics Opinions as well as other information of interest to Kentucky practitioners.