Virtual Ethics for a New Age: The Internet and the Ethical Lawyer

Georgetown Journal of Legal Ethics, The, Summer 2004 by Blades, Melissa, Vermylen, Sarah

The expansion of the Internet has brought with it a number of useful tools. Even if they do not understand the technology behind the Internet, most attorneys appreciate the speed at which they can communicate with clients and other attorneys, the increased volume of information literally at their fingertips, and the ease with which they can complete research. ' However, with the benefits of the Technological Age come hosts of legal ethics issues to concern lawyerswhether solo practitioners, members of firms, government employees or anyone in between. Lawyers must be concerned with whether their electronic mail ("e-mail") or real-time communications with clients adequately protect confidentiality. Unsolicited e-mail received by an attorney containing information relating to a current client may have serious unanticipated ramifications. Attorneys using the Internet to advertise their practice must consider whether their actions violate ethical regulations in multiple jurisdictions.

Without a universal definition of the "practice of law," and hence one of the "unauthorized practice of law," attorneys are faced with difficult decisions about what technologies to utilize. Part I of this Note will describe Internet practices that are commonly considered the unauthorized practice of law. Part II will examine some of the advantages of providing legal services via the Internet. Part III will address the arguments against providing legal services via the Internetnot only to protect lawyers' monopoly, but also to protect laypersons from harm. Finally, Part IV will conclude that the legal profession should embrace technology, leap into the twenty-first century, and take advantage of the Internet and all that it has to offer.

I. INTERNET PRACTICES CONSIDERED THE "PRACTICE OF LAW"

The Model Rules of Professional Conduct ("Model Rules") Rule 5.7 defines "law-related services" as those "services that might reasonably be performed in conjunction with and in substance are related to the provision of legal services, and that are not prohibited as unauthorized practice of law when provided by a non-lawyer."2 This circular definition of the practice of law provides little insight into the ethical boundaries necessary to comply with the Model Rules. To clarify what constitutes the practice of law, states have attempted to define the concept through statutes and case law.3 There is, however, no uniform definition of the practice of law because each state is free to create its own definition, resulting in a variety of interpretations throughout the United States.4 Some states have created "Unauthorized Practice of Law Committees" to prosecute the unauthorized practice of law.5

Because there is no uniform law, determining what constitutes the unauthorized practice of law on the Internet is complicated.6 Generally, the practice of law includes rendering legal advice, preparation of legal documents, and holding oneself out as engaged in the preparation of legal instruments.7 Some states also consider the preparation of pleadings and the rendering of any service that requires the use of legal skill or knowledge.8 Technological advances in recent years have created a new forum for the practice of law-the Internet. Potential areas of ethical dilemmas include online comments made by a lawyer admitted in one jurisdiction, and read by a person in another; online attorney advertising; e-mail and attorney-client privilege; online attorney referral sites; and online subject matter guides.

A. ATTORNEYS' ONLINE COMMENTS AVAILABLE IN STATES IN WHICH THEY ARE NOT ADMITTED

The unauthorized practice of law includes the practice of law in a jurisdiction in which the lawyer has not been admitted to practice.9 In Birbrower v. Superior Court of Santa Clara,10 a California client that claimed it was not responsible for paying the law firm's fees argued that its New York firm had engaged in the unauthorized practice of law when lawyers from the firm went to California to attend meetings and advise the client." Because the firm had engaged in the unauthorized practice of law, the client thought that it should not be responsible for paying the law firm's fees.12 The court stated that the "primary inquiry is whether the unlicensed lawyer engaged in sufficient activities in the state, or created a continuing relationship with the California client that included legal duties and obligations."13 The court further stated that "one may practice law in the state in violation of section 6125 [the relevant unauthorized practice of law statute in California] although not physically present here by advising a California client on California law in connection with a California legal dispute by telephone, fax, computer, or other modern technological means."14 Although Birbrower represents a case in which the unauthorized practice of law occurred through traditional physical contact, cases and ethics opinions defining unauthorized practice of law in a traditional forum can be useful in determining its implications in the online world. 15