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Not since the invention of television has there been a means of communication that can provide information to such a large number of people as easily and efficiently as the Internet. In recent years, lawyers have come to appreciate the value that an Internet Web site can offer their practices, and Web sites are now regularly used by lawyers. While most lawyers use Web sites to inform the public of the nature of their practices, some Web sites allow users to transmit questions to the lawyer so that the lawyer can then provide answers online. This latter activity is sometimes referred as “cyberadvice.” Many lawyers may not be aware of the legal and ethical implications of using a Web site to perform these functions. This article is not intended to address comprehensively every issue that may arise through a lawyer’s use of a Web site, but only to identify a few issues that may warrant further investigation. In Texas, a Web site that describes a lawyer, firm or the legal services rendered by them is considered an advertisement in the public media, according to the Texas Disciplinary Rules of Professional Conduct. As a result, the site must comply with the requirements of Texas Disciplinary Rule of Professional Conduct 7.04. In addition, Rule 7.07(b) requires that the Web site image be filed with the Lawyer Advertisement and Solicitation Review Committee of the State Bar of Texas, and Rule 7.04(f) requires that certain record retention requirements be met. Failure to comply with these requirements may subject the lawyer to disciplinary action. The practice of answering questions over the Internet raises other fundamental issues such as whether and when an attorney-client relationship forms between the lawyer and the individual with whom he or she is communicating. Section 14 of the Restatement (Third) of the Law Governing Lawyers provides that: [a] relationship of client and lawyer arises when … a person manifests to a lawyer the person’s intent that the lawyer provide legal services for the person; and either (a) the lawyer manifests to the person consent to do so; or (b) the lawyer fails to manifest lack of consent to do so, and the lawyer knows or reasonably should know that the person reasonably relies on the lawyer to provide the services. Since the 14th Court of Appeals’ ruling in 1997′s Vinson & Elkins v. Moran allows a contract of employment between a client and an attorney to be either express or implied based upon the conduct of the parties, a strong argument can be made that if a lawyer answers a specific legal question sent to his or her Web site, the lawyer has manifested consent to forming such a relationship. Once an attorney-client relationship forms, several legal and ethical issues follow. First, the lawyer owes a standard of care in providing advice to the client. If the lawyer does not meet the standard of care and the advice causes harm to a person who relies on it, the attorney could be found liable for malpractice. Second, lawyers have a duty to keep information they learn from clients confidential. In 1999, the American Bar Association Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 99-413 concluding that “[l]awyers have a reasonable expectation of privacy in communications made by all forms of email, including unencrypted email sent on the Internet, despite some risk of interception and disclosure.” However, given the number of sophisticated governmental agencies and corporations that reportedly have been the victims of computer hackers in recent years, serious privacy issues exist about the advisability of communicating sensitive information to clients or others over the Internet. Issues of conflict of interest also may arise. Communication via the Internet is a fairly anonymous process. Oftentimes, a lawyer will receive little, if any, information about the identity of the person seeking advice, meaning that the lawyer cannot perform a proper conflicts check before responding. Nevertheless, by providing advice to such a person, the lawyer runs the risk of acting adversely to one of his or her current clients. What if the lawyer provides advice to a person who resides in another jurisdiction? This poses at least two additional potential problems. First, by providing advice to such a person, the lawyer may engage in the unauthorized practice of law in the jurisdiction in which the “client” resides. Second, the lawyer may not fully understand the laws of the jurisdiction where the person resides, and therefore may not be competent to provide the advice requested. Most lawyers attempt to address some of the foregoing problems by using written disclaimers. For example, lawyers use disclaimers on their Web sites saying that 1) no attorney-client relationship is formed between the lawyer and the recipient of the information; and 2) the information the lawyer provides is not authoritative legal advice upon which the recipient should rely. The Texas disciplinary rules and the Texas Supreme Court decision in Mahin & Cate v. Nat. Union Fire Ins. Co. of Pittsburgh, Pa. (2000) prohibit an attorney from making an agreement that prospectively limits the attorney’s malpractice liability to the client unless 1) the agreement is permitted by law; and 2) the client is independently represented in making the agreement. Therefore, the effectiveness of such disclaimers is questionable. Lawyers should be mindful of the foregoing risks and carefully evaluate how they use their Web sites. Those lawyers who fail to address these issues appropriately may find themselves the subject of an unwanted disciplinary or malpractice proceeding. David J. Beck is a partner in Beck, Redden & Secrest (www.brsfirm.com) in Houston. His e-mail address is [email protected]

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