By Ruth H. Baxter, Crawford & Baxter, P.S.C., Member, Board of Directors, Lawyers Mutual Insurance Company of Kentucky
Lawyers are turning to cyberspace in increasing numbers not only for the routine operation of their law offices through e-mail, legal research, video conferencing and electronic filings with the courts, but also for the marketing of their practices through web sites, participation in chat rooms and electronic client newsletters. These cyber-activities raise questions about exposure for potential malpractice claims. At the same time, ethics issues arise when the Internet is used as an advertising and marketing tool to solicit potential clients.
Cyberlaw Liability Concerns
In plain terms, the issues of any legal malpractice case are: 1.) Was there an attorney- client relationship? 2.) Was an error made by the attorney or law firm? and, 3.) Was the client damaged as a result of the error? Cyberspace muddies the waters of whether an attorney-client relationship was established. Does visiting a lawyer’s web site or contacting an attorney via e-mail for information about a legal problem create such a legal relationship? Does an attorney who sends electronic newsletters to potential clients, or participates in chat rooms and discussion groups about legal issues inadvertently create an attorney-client relationship? While no reported decisions on these areas of liability exist, more than likely the courts will follow the rule of thumb that if it “looks, tastes and smells like legal advice”, then you have a client!
But do you really know who the “client” is that has come to you via the Internet? With the ability to disguise an inquirer’s true identity, a lawyer responding to e-mail can be blindsided by potential conflicts of interest. Can you confirm the identity of this “new client” to your satisfaction so that you can check for conflicts within the law firm?
And where does this “client” come from? With the capabilities for an Internet user to be located outside of the jurisdiction for which an attorney is admitted to practice law, we must ask ourselves if we’re giving incorrect legal advice based upon the law applicable to where the person lives or was injured.
Researching the law through informational services such as Westlaw or Lexis has become popular because of the speed and alleged accuracy for legal decisions. But if an attorney relies upon these sites and the information is outdated, inaccurate or in error, then an attorney could be liable for errors or omissions in his practice.
Electronic filing is also being adopted by both state and federal court systems. If the attorney or a staff member files a document incorrectly, or it is not docketed with the proper court due to computer error, then the attorney will remain liable for the error.
Minimizing Your Exposure To Cyberliability
Lawyers can minimize exposure to cyberliability by following a few practical suggestions in their Internet practices:
Ethics Issues In Cyberspace
Since the 1977 U.S. Supreme Court’s Bates decision opened the door for lawyers to advertise in the marketplace, the use of “lawyer advertising” has exploded. From traditional yellow page advertisements, lawyers have moved to radio and television media, commercial billboards, and now Internet-based marketing tools. E-mails, electronic newsletters, participation in discussion groups and chat rooms are now examples of the “cutting edge” use of technology to promote a lawyer’s practice.
But with the use of the Internet as a marketing tool, comes ethical issues about the role of professional responsibilities in these communications. State bar associations and supreme courts are continually re-examining existing ethical standards with an eye toward their application to developing technology.
Kentucky Supreme Court rules are clear that the use of the Internet for soliciting clients falls within the definition of “advertising” subject to its regulation. Written and recorded communications through the web are no different than published legal directories, newspaper ads, and radio or television promotions specifically discussed in the rules. While law firm home pages and web sites may present a more passive contact between an attorney and a potential client, e-mail, chat rooms and discussion group participation are more akin to “direct contacts with prospective clients” subject to SCR 3.130(7.09). Similarly, the content of the materials transmitted through the Internet are subject to the prohibitions about making false, deceptive or misleading communications, or creating unjustified expectations about the results you can achieve as a lawyer in your search for new clientele.
Lawyers can reduce potential ethical problems and protect themselves from possible disciplinary action by taking the following steps: