X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
The disclaimer on the Web site of Atlanta’s King & Spalding runs almost 450 words, topping 500 if the copyright notice is counted. It explains how materials on the site are informational only and “do not necessarily reflect the opinions of King & Spalding or any of its attorneys or clients” and are “not guaranteed to be correct, complete or up to date.” The site isn’t intended to create an attorney-client relationship, the warning goes on to say, and links to other Internet pages aren’t meant to imply affiliation. “King & Spalding,” the disclaimer notes, “has endeavored to comply with all known legal and ethical requirements in compiling this World Wide Web site.” It’s the ultimate cover-your-ass statement. But is it over the top? Not really, Internet experts say, considering the virtual lack of regulatory do’s and don’ts for online legal services. Policy makers are running behind the new technology, and some lawyers, like those at King & Spalding, would rather be safe than sorry. A gold mine in many ways, the Internet — by virtue of its global, no-borders nature — can also be a minefield for lawyers or law firms that inadvertently step over the currently ill-defined regulatory lines that exist state to state. There is no broad consensus yet, for example, about what online activities constitute the unauthorized practice of law, violate client confidentiality, initiate client relationships or turn communication into solicitation. “Much of our analysis and insight into this is very theoretical,” says Chicago’s William Hornsby Jr., staff counsel for the American Bar Association’s division for legal services and author of “Marketing and Legal Ethics: The Boundaries of Promoting Legal Services,” a book examining the relationship of law and technology. “It simply hasn’t unfolded as far as litigation,” he says. Moreover, it’s likely that guidance from bar groups — in the form of amendments to their professional rules of practice — will be glacial in comparison to the lightning pace of technological change bombarding the legal profession. “It’s still on a rule-by-rule basis,” says Peter Krakaur, the San Francisco-based publisher of Legalethics.com, an online company that addresses the ethical issues that arise when the Internet and the legal world collide. “There is no systematic effort to step back and say, ‘What’s happening here and do the rules as a whole work?’” For now, precaution seems advisable. “I read the ethics rules of every state in the United States and put together a disclaimer that I thought covered the rules of all combined,” says Bradley Slutsky, the King & Spalding partner responsible for the firm’s 5-year-old Web site. “We haven’t received any complaints from any state agencies,” adds Slutsky, whose firm has branches in New York, Houston and Washington, D.C. “And as best as I can tell, ours is the most extensive disclaimer of any firm’s in the nation.” In fact, both Hornsby and Krakaur cite King & Spalding’s disclaimer as the model to follow. But they both believe the time is coming when disclaimers will be complemented by broad regulatory rules that will guide lawyers around the potential ethical and legal pitfalls of the Internet. “It’s happening in every other industry, and they are changing around their business models and the way they do business,” says Krakaur, who’s recognized as one of the nation’s premier authorities on Internet legal issues. “The legal profession will have to react in a similar way.” LEGAL LUDDITES Incorporating technology into the legal way of life has always been a slow and bumpy process, some legal scholars say. Catherine Lanctot, a professor at Pennsylvania’s Villanova University School of Law, wrote last year in Duke Law Journal that telephones were viewed with suspicion by some lawyers at the beginning of the 20th century. “Future Secretary of State John Foster Dulles recalled that when he joined the large New York law firm of Sullivan & Cromwell in 1911, neither telephones nor stenographers were widely accepted as part of traditional law practice,” she wrote. “He remembered that ‘some of the older partners felt that the only dignified way of communication between members of the legal profession was for them to write each other in Spencerian script, and to have the message … delivered by hand.’” Similar concerns greeted the coming of radio and television, Lanctot and others say, but rules governing advertising and self-promotion were eventually hashed out. The Internet poses more daunting problems because it permits direct one-to-one contact with anonymous individuals around the world. Regulators believe that current rules and regulations can be adapted to cover most online legal services, especially in governing advertising and solicitation. The trick is to regulate, not strangulate. “We don’t want to hamstring lawyers, but at the same time there are traditions that make the law very different from other professions,” says Chicago’s Eileen Libby, associate ethics counsel for the ABA’s Center for Professional Responsibility. “You have to look at the big picture and use good judgment.” Regulators are moving slowly, taking incremental looks at the myriad pieces of the Internet puzzle. For example, while the ABA, which is revamping its rules of conduct to reflect technological change, has made no sweeping pronouncements about Internet regulation, it has taken the small, but important, step of declaring that e-mail transmission via the ‘Net poses no greater confidentiality risk than regular mail or facsimiles. Meanwhile, the State Bar of California has proposed that Web sites be considered a form of communication governed by advertising regulations. But sites that contain an e-mail address wouldn’t necessarily be a form of solicitation. On the other hand, the ABA has recommended that lawyer solicitation on Internet chat rooms be banned, and the Arizona Bar has ruled that its barristers “ethically may not participate” in online services that connect questioners by e-mail with legal specialists who have paid fees to take part. Legal scholars say it’s one thing for a lawyer to pay a fee to be listed Yellow Pages-style on a Web site, but quite another if the online provider gets a percentage of the profits for legal work. It’s also generally OK to offer basic legal information, such as a state’s statute of limitations on lawsuits, they say, but fact-specific answers, such as whether to sue, should be avoided. “That is tantamount to providing legal information,” Hornsby of the ABA says. It doesn’t matter what a firm thinks it’s offering. Instead, he says, “It is the recipient’s point of view about whether or not it’s legal advice.” Bad advice could even lead to malpractice suits by individuals who thought they had attorney-client relationships. “It is very important for attorneys to have in mind the ethical obligations they have to their clients when they’re practicing law,” says Alamo mediator Palmer Madden, who becomes State Bar president in September. “And the fact that it’s over the Internet doesn’t change the obligation. It just makes it easier in some ways to make a mistake.” RISKS AND OPPORTUNITIES Even figuring out what are and aren’t violations could take time. For example, is it unethical for online lawyers to use key words, known as metatags, or hidden text, called invisible ink, to make Internet search engines call up their Web sites in close proximity to others — such as a well-known firm’s — to try to attract clients? The question remains whether that’s improper solicitation. There’s also concern that lawyers could be set up by unscrupulous plaintiffs. What if, for example, your law firm is defending soft drink companies against suits for exploding bottles, Hornsby says, and someone planning to sue The Coca-Cola Co. intentionally solicits fact-specific information from you on a Web site? “You could be in a conflict,” Hornsby says. “The risk is definitely there.” In the long run, though, he and others say the legal profession can no more ignore the Internet than they could telephones. It’s just a matter of treading lightly until all the regulatory kinks are worked out. “We’ve got it figured out as far as what we can do [for now],” says King & Spalding partner Slutsky. “And we don’t take any [clients] automatically through our Web site. You still have to contact somebody here.”

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.