Practicing Law As E-Commerce: Is It Ethical?
How will the wave of e-commerce that is affecting almost everyone who works for a living, and how they work for a living, impact the ethical constraints within which lawyers make their living? How will doing business online be treated by the individual state authorities that regulate attorney conduct, for purposes of determining whether an attorney can use the Internet to practice law in any manner similar to the method by which a vendor of other services might use the Internet to engage in e-commerce?
At least one state seems to have addressed the issue based on a guarded presentation of facts. The Board of Commissioners on Grievances and Discipline for the Supreme Court of Ohio ("Ohio Board"), decided very recently in Opinion 99-9 that based on the situation before it, lawyers could practice law by using e-commerce, through interaction with clients exclusively on the Internet. Specifically, the Ohio Board found that a law firm could charge a fee for receiving and replying to e-mail questions from new clients that sent those questions on an intake form on the law firm's website. At least in Ohio, it is possible to practice law online without ever seeing your client.
The facts presented to the Ohio Board were limited to an intake form on the firm's website that provided for the prospective client's name, address, credit card information, legal question and password for the attorneys to use when replying. The attorneys would disclose that they were only answering based on Ohio law and a flat fee would be charged for a single topic question. The attorney reserved the right to decide if more that one topic was implicated by the question and would also communicate by e-mail if more data were needed before the question could be answered. The facts presented to the Ohio Board did not include any "real time" communication nor was there any telephone or in-person communication between the attorney and the client.
The reasoning of the Ohio Board in approving e-commerce as a means of practicing law included an emphasis on the need to provide access to legal services, citing Rule 1.1 of the Ohio Code of Professional Responsibility which states that: "[a] basic tenet of the professional responsibility of lawyers is that every person in our society should have ready access to the independent professional services of a lawyer of integrity and competence."
Curiously, the Ohio Board only seven years earlier considered and approved what was at the time a novel idea of delivering legal services by phone to one whom the attorney had no prior relationship. See Ohio Opinion 92-10. See also Ohio Opinion 94-27 (approving representation of clients by attorney with physical disability exclusively through contacts with an online-service.)
The Ohio Board noted that any method of legal representation must conform with ethical guidelines, and concluded that attorneys may provide online legal representation by answering e-mail questions from non-lawyers if they follow the following 9 ethical conditions:
- The representation must be free from conflicts of interest. Thus, a conflict check must be done before any legal service is provided and the online intake form should provide enough detail for a conflicts check to be made before any reply to the e-mail is given.
- All the traditional duties that a lawyer owes a client apply to online legal services, including the need to act competently.
- The confidence of "e-mail clients" must be protected. In Ohio and in most states, this does not require encryption in most instances. See Ohio Opinion 99-2.
- Advertising of online services must comport with existing advertising rules.
- No trade names can be used. Rather, the law firm name must be used.
- The provision of online legal services cannot be a joint enterprise with a non-attorney.
- An attorney cannot charge an excessive fee for online legal services.
- The attorney should notify the e-mail client if the e-mail question cannot be answered. Nor may the attorney recommend himself or herself or anyone in the law firm unless the e-mail client asks for advice regarding employment of a lawyer.
- The attorney must not practice law in a jurisdiction where to do so would violate the ethical rules in that jurisdiction.
The Ohio Board was aware of contrary findings in Arizona at the time it made its decision. See Opinion 97-04 (1997) of the State Bar of Arizona ( concluding that prospective clients should not be able to send completed intake forms online due to the "possibility of inadvertent disclosure"). Cf. Virginia Formal Opinion A-0110, April 14, 1998 ( limiting solicitation in "real time" online chat rooms to the same extent restrictions on solicitation apply to in-person and telephone solicitation.)
In sum, it appears that there is at least one state that has given its imprimatur to lawyers who use e-commerce to enhance their law practice. However, depending of the particular details of how one applies e-commerce to the practice of law in the future, the same familiar limitations on advertising generally, and in-person solicitation, should be used as guidelines.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.