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NOTICE: This article was prepared for the Arizona State Bar Convention in June 1996. The opinions expressed in this article are those of the author; they are not the opinions of the State Bar of Arizona nor of the Ethics Committee of the Arizona State Bar.
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Lawyer Ethics and Technology
by Lynda C. Shely
Special Services Counsel
© 1996 State Bar of Arizona
Reprinted with permission of Lynda C. Shely.
The legal profession has entered the technology era. Regrettably, however, the rules governing lawyer ethics have not been modified to address the new technologies. This article attempts to summarize what ethical guidance exists for Arizona lawyers with respect to the Internet.
In Arizona, the Model Rules of Professional Conduct include ethical rules on lawyer advertising, solicitation, and firm names. See Ariz. R.S.Ct. 42, ERs 7.1, 7.2, 7.3, 7.4, and 7.5. There also are ethical requirements on maintaining confidential information, see ER 1.6, and on conflicts of interest, see ERs 1.7, 1.8, and 1.9. There are no precise ethical rules, however, on such new issues as using e-mail to communicate with a client or advertising on the Worldwide Web.
Absent specific rules regarding these new technologies, attorneys admitted to practice in the State of Arizona should continue to apply the existing relevant ethical rules to these new technologies.
Law firm "Home Pages" and other "Communications" on the Internet
The latest technology to hit the legal profession is cyberspace, i.e., law firm "home pages," "chat rooms," and other services available on the Internet. The State Bar of Arizona's Ethics Committee has not yet issued an ethics opinion addressing the ethical implications of lawyers using the Internet. In fact, surprisingly few other jurisdictions have issued ethics opinions on this technology. The most recent ethics opinions from other jurisdictions regarding ethics and the Internet are:
In an effort to provide the Arizona Bar membership with some informal, nonbinding ethics advice about the Internet, the following questions and answers are provided for informational purposes only (NOTE: THE ANSWERS TO THESE QUESTIONS ARE MERELY THE OPINION OF THE AUTHOR - THEY ARE NOT NECESSARILY THE OPINION OF THE ETHICS COMMITTEE):
1.Is a firm "home page" considered a "communication" about a lawyer that would be subject to the ethics rules?
- Yes. A lawyer's home page on the worldwide web is a communication about the lawyer or the lawyer's services that is covered by the ethics rules. Specifically, lawyers should review the requirements of the general advertising rule, ER 7.1, which includes some obscure requirements, such as: 1) a communication must include the cities where the lawyer has offices and/or will actually perform the work; 2) a copy of the communication must be maintained for three years; 3) and communications that include a factual statement must be able to be substantiated.
2.If a law firm has offices in many states, must the firm comply with Arizona ethics rules if the firm either has an office in Arizona or attorneys admitted to practice in Arizona?
- Yes. Pursuant to ER 8.5, if you are a member of the State Bar of Arizona, you must follow the Arizona Model Rules of Professional Conduct, even if your advertisement will appear, electronically, both inside and outside of the state.
3.Can a "home page" use a tradename as the law firm name?
- No. ER 7.5 prohibits the use of tradenames for law firms in Arizona.
4.Can a lawyer mention either in a home page or simply in responding to a question in a "chat room" that he or she specializes in water law?
- No. Lawyers may only state that they "specialize" in an area of practice if they are so certified by the State Bar of Arizona's Board of Legal Specialization, pursuant to ER 7.4. Water law is not one of the certified specialization classifications.
5.Is it a violation of ER 7.3 to contact a prospective client directly via e-mail if you know that the person needs legal representation for a particular matter?
- Maybe, unless the lawyer complies with the requirements set forth in ER 7.3, which include notifying the recipient that the e-mail is advertising and sending a copy of the e-mail to the State Bar and the Supreme Court. This Rule requires that envelopes and letters to prospective clients known to need legal services in a particular matter be stamped "ADVERTISING MATERIAL: THIS IS A COMMERCIAL SOLICITATION". The Rule currently requires that this notation appear in red ink and twice the type-size of the largest type used in the body of the letter. There is a question as to whether this rule needs to be modified to address how such a notation should appear on electronic media.
6.Can/should lawyers answer specific legal questions posed in "chat rooms or news groups"?
- Probably not because of both the inability to screen for a potential conflict with an existing client and disclosure of confidential information. In Arizona Formal Opinions 87-23 and 92-10, which pertain to lawyers giving seminars to lay people, one of the guidelines suggested by the Ethics Committee was that lawyers should not answer specific legal questions from the audience. Ethically, it would follow that lawyers should not answer specific legal questions from lay people through the Internet.
- Lawyers may, however, provide articles or newsletters to specific groups on the Internet or in their home pages, just as lawyers currently may disseminate general information on particular legal topics.
7. Can a lawyer join an on-line lawyer referral service?
- Probably not. Lawyers may participate in a referral service only if the service is in compliance with ER 7.1(r)(3), which requires that the referral service be "operated, sponsored, or approved by a bar association".
8.Can lawyers communicate with existing clients, via e-mail, about confidential matters?
- Maybe. Lawyers may want to have the e-mail encrypted with at least a password known only to the lawyer and the client so that there is no inadvertent disclosure of confidential information. Lawyers also may want to caution clients about transmitting confidential information via e-mail if the e-mail is not encrypted. See Arizona Formal Op. 95-11 regarding use of cellular phones by lawyers.
9.Can lawyers offer their legal services in an on-line "mall"?
- Unclear. Nebraska recently issued Op. 95-3, which prohibits Nebraska lawyers from such marketing.
10.May lawyers place on-line prospective client intake forms on their web sites and, if so, may the client respond via the home page?
- Placing the forms on the web site, for clients to download and complete off-line is fine. However, in order to avoid possible inadvertent disclosures of confidential information, prospective clients should not be able to send the completed form electronically.
11.Do lawyers need to submit a copy of their home pages to the State Bar and the Supreme Court pursuant to ER 7.3?
- Probably not. Home pages probably will not fall within the requirements of ER 7.3, which requires lawyers to submit a copy of all direct mail solicitation letters to the State Bar and the Supreme Court. Lawyers only need to send copies of direct mail correspondence to the Bar and the Court when the solicitation is sent to a prospective client who has a known need for legal services for a particular matter. Presumably home pages are designed to provide general information about a law firm and are not sent directly to certain prospective clients.
12.Do lawyers need to keep a copy of their home pages and any changes that they make to their home pages pursuant to ER 7.1(o)?
- Yes. Lawyers need to keep a copy of their home pages in some retrievable format for three years after dissemination along with a record of when and where the home page was used. Additionally, if there is a material change to the home page, the lawyer should retain a copy of all material changes as well.
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