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

Another way to avoid a charge of unauthorized practice of law is to provide a disclaimer to users of the website or chat room that explains that the information provided is not intended to be legal advice.47 The disclaimer might state what jurisdictions the lawyer is authorized to practice in, and that the website is not intended to be a source of advertising, solicitation or legal advice. Additionally, the disclaimer might include the following text: "the owner of this Web page does not wish to represent anyone desiring representation based upon viewing this Web page in a state where this Web page fails to comply with all laws and ethical rules of the state."48 However, these boilerplate disclaimers may not provide the informed consent necessary to render a layperson's reliance unreasonable.49 Where the layperson's reliance remains reasonable, the attorney-client relationship can be formed, accordingly, the lawyer providing legal advice may be liable for the unauthorized practice of law.

B. ATTORNEY ADVERTISING SUBJECT TO REGULATION

While the Model Rules permit advertising "through written, recorded or electronic communication, including public media,"50 the Model Rules still prohibit the solicitation of residents outside of the lawyer's jurisdiction.51 Using traditional forums for solicitation, like newspapers, radio, or television, gives rise to restrictions on the jurisdiction in which the lawyer may solicit.52 In Florida Bar v. Kaiser,53 the court held that a New York attorney had engaged in the unauthorized practice of law when his interstate firm advertised in Miami phone books, television, and newspaper outlets, creating the impression that Kaiser was a Florida attorney.54 Unlike advertising placed in traditional forums, on the Internet there are no jurisdictional boundaries.55 Furthermore, a website differs from a television or newspaper advertisement because Internet users have to perform a search to find the lawyer's website.56 Reaching out therefore happens at the behest of the consumer, not the attorney.

In November 1994, only five law firms had websites providing information about the law firm, its lawyers, and its practice groups.57 Today, virtually all large law firms, and many small law firms, have websites.58 Such websites are considered advertising, and are subject to the Model Rules concerned with advertising, because the websites generally exist to disseminate information regarding commercial transactions to prospective clients.59 Because these websites are accessible to everyone, everywhere, it is unclear whether a website advertisement constitutes solicitation of residents outside of the attorney's jurisdictional boundary.60

Determining whether a lawyer has engaged in unauthorized practice of law over the Internet by soliciting in jurisdictions in which he or she is not authorized to practice is based on a spectrum of website distinctions. Because solicitation through "in-person, live telephone or real-time electronic contact," where the lawyer's motive is pecuniary gain, is prohibited, many jurisdictions have distinguished types of websites based on the level of contact initiated by the lawyer.61 First, there are passive websites. These sites contain information, but offer no interaction with the site visitor. second, there are interactive websites where information is communicated and exchanged between the site operator and site visitors. Third, are websites through which business is conducted including sales, solicitations, acceptance of orders, links to other sites, product lists, and the transmission of files.62