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

G. INFORMATION SECURITY REQUIREMENTS

The Federal Trade Commission ("FTC") mandated information security precautions under the privacy protection requirements of the Gramm-Leach-Bliley Act (the Act).151 The FTC broadly interpreted the term "financial institutions" in the Act to cover those "significantly engaged" in "financial activities."152 This broad interpretation brought some unexpected attorneys into its sphere of influence, surprising those who were not in the banking and finance industries.153 Attorneys involved in tax, trusts and estates, financial advisory services, real estate leasing, real estate closings, and debt collection practice areas had to comply with the requirements of the Act upon very short notice.154

The ABA requested that the FTC exempt attorneys from the requirements of the Act for a variety of reasons, but particularly because attorneys are already bound by broader ethics requirements.155 Among these is Model Rule 1.6, which creates a duty to act "competently to preserve confidentiality."156 Model Rule 1.6 also implicates Model Rules 1.1, 5.1, 5.3.157 The FTC denied the ABA's request due to its lack of authority to waive the requirement, but the ABA filed a suit to have lawyers exempted from the Act, and legislation was introduced to have lawyers exempted.158

Even attorneys not involved in the financial industry must still exercise caution over information contained in databases and computer systems. When a lawyer or law firm gives a computer maintenance company access to its files for maintenance purposes, the lawyers must carefully guard client information.159 As with the Act requirements, protection of information contained on computer systems implicates rules regarding confidentiality and competency.160

II. POTENTIAL BENEFITS OF MAKING LEGAL SERVICES AVAILABLE OVER THE INTERNET

A. SERVICES CAN BE MADE AVAILABLE TO MORE PEOPLE

Unauthorized practice of law statutes were originally intended to protect the public from "unscrupulous lawyers."161 The statutes were intended to provide the public with the "assurance of competence and integrity . . . [and] complete confidence in the undivided allegiance of one's counsellor in the definition and assertion of the [legal] rights."162 Although maintaining the public confidence in the legal profession is a laudable goal, the changing nature of legal practice has caused some tension between the goal and the statutes.163 Many websites offer personalized legal document preparation including wills, divorce papers, and other documents.164 This easy access may help maintain the public confidence, yet may also violate some statutes.

Because Internet bulletin boards and chat rooms provide a veil of anonymity, the availability of legal advice without recognition may encourage people who would be afraid to seek legal advice in person to do so.165 In addition to providing anonymity, software that is downloaded from the Internet can be used to create legal documents by people who live in isolated areas or have restricted mobility.