As lawyers, we must remind ourselves, our profession is nimble, providing society a steady-beacon in its foggiest hours.
Introduction
With the emergence of the “age of cyberspace” in the early 1990s, lawyers recognized the need to move from traditional types of practice to include more technologically advanced systems of legal services, in order keep pace with the burgeoning global economic market. By the end of the decade, new digital technology provided the way for law firms and legal professionals to engage in the practice of law in an entirely different fashion, via eLawyering. While the definition of eLawyering escapes a single definition, eLawyering is often described as the “utilization of the Internet and e-mail networks for the delivery of legal services.” On a conceptual level, eLawyering combines law and technology to enable lawyers to service effectively the market for legal services, while at the same time “increas[ing] opportunities for communication and mentoring among practitioners.”
As the American Bar Association has pointed out, however, the practice of law over the Internet does not come without “far reaching implications for the legal profession that go beyond the use of personal computers on the desktop.” Despite the promises for increased productivity and greater efficiency, the shift of legal practice to a digital platform presents ethical dilemmas that have the potential to affect both Internet-based and traditional types of legal practice. These ethical difficulties involve a wide array of issues, including communications with prospective clients, confidentiality, and the various duties that lawyers must maintain to their clients. Of all of these issues however, it appears that practicing law over the Internet itself may present the most perplexing question to this new age of digital lawyers. The increase in the “interactivity and sophistication” of the Internet presents serious challenges involving the multijurisdictional practice of law. In essence, as Internet sites are intrinsically multijurisdictional and increased levels of communication allow for attorneys and clients to interact in more concrete ways, the practice of law of over the Internet poses a risk that “lawyers will increasingly find themselves at risk of prosecution” for the unauthorized practice of law.
This note discusses the tension between the increasing digitalization of legal practice and the ethical constraints of multijurisdictional practice. Part I of this note discusses the development of eLawyering in historical perspective. Part II of this note presents the concept of the unauthorized practice of law and sets out the appropriate legal standard by which a few jurisdictions currently adhere. Part III analyzes the conflict between the growth of eLawyering and the problems lawyers face by practicing law over the Internet. Part IV of this note discusses some of the solutions that have been proposed to resolve the conflict between eLawyering and the unauthorized practice of law. In part V of this note, I suggest that a new solution – one that focuses on enforcement of strict penalties for online malpractice, is the appropriate method of handling the inevitable shift of the legal profession to the digital platform.
I. The Development of eLawyering
In comparison to other industries, the legal profession has been regarded as “slow” in keeping pace with the digital revolution. As one scholar points out, “[c]hange comes slowly to the legal profession, even in the Digital Age. American lawyers are only now beginning to perceive what much of the commercial world already understands – the potential that computer technology holds for transforming the way business will be done in the twenty-first century.” However, despite these characterizations, most people would agree that the information revolution has already begun to transform the practice of law. Lawyers, recognizing the vast potential of capturing the untapped market of the low-to middle-income client base, find it increasingly necessary to implement a virtual law practice in today’s Internet age.
At the early stages of the transition to digital legal practice, law firms and legal professionals began with baby steps; most lawyers and law firms ventured on to the World Wide Web with “noninteractive” websites that consisted of biographical and contact information about their respective firms and practices. These websites also included information about the firm’s history, areas of specialization, attorney recruitment information, firm publications, and up to date press releases on major developments dealing with the firm. At the heart of these “noninteractive” websites was a one-dimensional focus on the use of cyberspace simply as a powerful marketing tool. As one scholar notes, law firms initially viewed participation in the World Wide Web as only to “assist them in selling themselves to prospective clients by providing inquires and leads….”
Within the past few years however, the growth of technology and the accessibility of the Internet has created a shift in these websites toward increased interactivity. Rather than simply providing information for reference, law firm websites are becoming increasingly sophisticated, including digitalized features such as legal topic search engines, bulletin boards for all types of discussions, and even real time chat capabilities between clients and legal professionals. Whereas during the early stages of development many law firms relied on websites solely as a marketing tool, the shift towards interactivity in web based media has allowed law firms to create a seamless platform that blurs the line between advertising and the capability to provide legal services to clients.
One model of this new breed of legal practice is the website LegalAdviceLine.com. This innovative website allows clients from any state within the United States to discuss their legal concerns with a live lawyer. With a few simple clicks, a potential client can submit a question online and chose to receive an answer by phone or e-mail – for a fraction of the price that clients seeking traditional counsel may pay. Moreover, answering legal questions is only one type of service that LegalAdviceLine.com offers; clients can also create legal documents, have personal or business documents reviewed, and even hire professionals to resolve a dispute with mediation or arbitration services. According to Business Law Today, LegalAdviceLine.com “has seen ‘enormous growth’ in just the past few years and now serves tens of thousands of people a year.” Following the trail of success of websites such as LegalAdviceLine.com, similar websites have spawned rapidly, taking up such domain names as Cybersettle.com, Mylawyer.com and Legalzoom.com. Common legal matters such as divorce, prenuptials, wills, copyrights, and taxes were at one time handled solely by lawyers on behalf of their clients. Through the development of eLawyering however, Internet savvy consumers can now save a lot of time and money by representing themselves.
The development of the Internet-based virtual law office has not been confined solely to digital lawyers. As one scholar notes, even traditional law firms have been “finding ways to deliver traditional legal functions and services online.” One such traditional law firm – Jacoby & Meyers, personal injury specialists, now offer potential clients to fill out a “Case Questionnaire” on their website. By simply filling out a one page form that provides the client’s contact information and details surrounding the personal injury, Jacoby & Meyers’ website promises “a confidential response in three days.”
The growth and development of these websites demonstrate that the Internet is becoming increasingly integrated into the practice of law. As scholars begin to contemplate the impact of this transformation however, it is indeed the challenge of the legal profession today “to bring the rule of law into cyberspace.” Without clear guidelines for lawyers to follow in the course of such development, the practice of law over the Internet raises many significant ethical dilemmas – many of which threaten even the fundamental concepts of traditional legal practice.
II. The Unauthorized Practice of Law
Perhaps the most significant challenge confronting this new age of digital lawyers is the conflict that exists between practice of law over the Internet and the established rules against the unauthorized practice of law. According to the American Bar Association’s Report of the Commission of Multijurisdictional Practice, multijurisdictional practice is defined as “the legal work of a lawyer in a jurisdiction in which the lawyer is not admitted to practice law.”
Under current professional standards, lawyers in the United States may not practice law on a national basis. Rather, lawyers within specific jurisdictions are licensed by the judiciary of the state to practice law within state boundaries. In essence, each jurisdiction has its own individual licensing authorities, regulations, and rules against the unauthorized practice of law. The principle behind the individual licensing practice is “to protect the public by ensuring those who are licensed to practice law in the state have the requisite knowledge of that state’s laws and the general fitness and character to practice law.”
While there are differences in many state bars regarding the rules that govern the unauthorized practice of law, many jurisdictions have adopted the American Bar Association’s Model Rule of Professional Conduct for the unauthorized practice of law. Rule 5.5 of the Model Rules for Professional Conduct provides that:
(a) A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so.
(b) A lawyer who is not admitted to practice in this jurisdiction shall not:
(1) except as authorized by these Rules or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of law; or
(2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.
Although Rule 5.5 appears to be relatively unambiguous, the application and litigation over such statutes in different jurisdictions has raised concerns as to whether the implementation of such a stringent standard may impede “lawyers’ ability to meet their clients’ multi-state and interstate legal needs efficiently and effectively.”
A recent case before the California Supreme Court poignantly elucidates the extent to which these concerns have arisen in legal practice. In Birbrower, Montalbano, Condon & Frank, P.C., v. Superior Court of Santa Clara County, the California Supreme Court dealt with the issue of whether an out-of-state law firm, not licensed to practice law within the state, violated California Business and Professions Code section 6125 when the firm performed legal services in California for a California-based client under a fee agreement stipulating that California law would govern all matters in the representation.
Birbrower is a law firm incorporated in New York, with its principle place of business in New York. In 1992, Birbrower entered into an agreement whereby Birbrower agreed to perform legal services for ESQ, a company located in California. After the contract was formed, Birbrower attorneys performed substantial work in California on ESQ’s behalf, despite the fact that none of Birbrower's attorneys were licensed to practice law in California during Birbrower's ESQ representation.
In January 1994, Birbrower and ESQ “had a falling out,” and ESQ eventually sued Birbrower for legal malpractice. ESQ argued that by practicing law without a license in California and by failing to associate legal counsel while doing so, Birbrower violated California Business and Professions Code section 6125, rendering the fee agreement between the two parties unenforceable. In response, Birbrower filed a counter-claim for its legal fees.
Justice Chin, speaking for the majority, found that Birbrower lawyers violated California’s unauthorized practice of law statute for the legal services provided while physically residing in California. However, in dicta, the California Supreme Court went even further to articulate the principle that one may practice law in the state in violation of section 6125 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.
In essence, the California Supreme Court rejected Birbrower’s contention that “[m]ultistate relationships are a common part of today’s society and are to be dealt with” in a different manner. The court’s decision in Birbrower raises serious concerns over whether the utilization of advanced technology in legal practice, particularly with respect to the growth of the legal profession in cyberspace, would be allowed to develop for the purposes of reaching out to twenty first century clients.
Similar to the Birbrower case in California, in Unauthorized Practice of Law Committee v. Parsons Technology, Inc., decided in District Court in Texas, the court held that defendant Parsons Technology violated Texas’ version of the unauthorized practice of law statute when the company created software that allowed consumers to interact with the computer to access and fill out legal forms that were available on the software’s database. Parson’s technology is a California corporation whose principle place of business is Iowa. While Parsons created many different types of software for the computer, the software in controversy was entitled ‘Quicken Family Lawyer,’ which allowed consumers to access over 100 different legal forms, including employment agreements, real estate leases, premarital agreements, and various types of will forms. Along with providing the forms, the software provided an interactive experience by raising a series of questions in which the user would answer, and the answers would automatically be placed in appropriate sections of a particular form.
Texas’ unauthorized practice of law committee filed an action against Parsons, alleging that the selling of Quicken Family Lawyer violates Texas’ unauthorized practice of law statute. Parsons responded by arguing that the mere selling of software did not violate the statute because some form of personal contact beyond publisher-consumer is required in order to be in violation of the statute.
The court held that because the software was “more than a static form with instructions on how to fill in the blanks”, Parsons went “beyond publishing a sample form book with instructions and ventured into the unauthorized practice of law.” Citing precedent authority, the district court in Parsons reached its holding by asserting that “the preparation of legal instruments of all kinds involves the practice of law.” In essence, the holding in Parsons articulates the principal that even in cases where the interactivity of technology deals solely between a computer and user, the unauthorized practice of law may be triggered if the interaction involves anything more than providing information that assists a user in filling out legal documents.
Taken together, the Birbrower and Parsons cases elucidate the concern that many lawyers have regarding the advance of technology with particular emphasis on the growth of the Internet. The decisions in the two cases suggest that the threshold for what may be considered the practice of law is easily met - and most legal work, whether done in person or “virtually,” is likely to be considered the practice of law.
In 2002, the American Bar Association House of Delegates issued a report detailing suggested changes to the relevant section of the Model Code dealing with the multijurisdictional practice of law. In issuing the report, the commission acknowledged that its primary concern in offering amendments to Model Rule 5.5 was that advances in modern communication technology has enabled clients to transact business throughout the country, and even internationally. The amended Model Rule 5.5 now includes a provision that allows lawyers to provide legal services on a temporary basis outside the lawyer’s jurisdiction if the lawyer has an expertise pertaining to the body of the law applicable to a client’s matter. However, while the amended rule appears to permit lawyers to practice over the Internet, the amended rule nonetheless presents some problems, as the lawyer’s work in the jurisdiction must be temporary and reasonably related to the lawyer’s practice in the jurisdiction where the lawyer is admitted to practice. Thus, while the amendment to Model Rule 5.5 attempts to answer the question of whether lawyers may practice law over the Internet, many questions still remain as to the extent by which one may do so.
III. Inevitable Conflict and Unresolved Challenges: eLawyering and the Unauthorized Practice of Law
It is not surprising that a conflict exists between the practice of law over the Internet and the statutes that prohibit the unauthorized practice of law, since “virtual legal practice is inherently interstate and international.” However, as the nature of legal practice becomes increasingly digital, a significant difficulty arises with respect to often-blurred line between advertising and providing legal services to a client. The shift to a digital platform has forced lawyers to contemplate whether services provided online are simply furthering the use of the Internet as an advertising tool, or whether the services provided constitute actual legal advice. Indeed, this question has been characterized as “earth-shattering to a jurisdiction-centric profession.”
The gravity of the developing tension between eLawyering and the unauthorized practice of law may be better understood within the context of a similar problem facing the medical profession. Internet law scholar Stuart Biegel, in assessing the dangerousness of unlicensed online health care notes that:
Most people would not at first glance place online health care in the “dangerous conduct category." Yet activity by health care practioners, which is so tightly regulated offline, continues to be relatively unregulated in the online world. And persons who have not been licensed to practice medicine of any type can be found on the Internet providing medical advice. Some of this activity – particularly if no fees are being charged – may be viewed as “unlawful anarchic conduct,” and other behavior may even fit more appropriately under “inappropriate conduct.” But persons relying on faulty medical advice can in fact get hurt…sometimes very badly. Thus certain online health care would indeed qualify as dangerous conduct.
Thus, similar to the medical profession, as lawyers and law firms increasingly depend on the Internet to both advertise and provide legal services, unless the standards of what constitutes giving actual legal advice are first clarified, lawyers will continue to face violating the statutes that prohibit the unauthorized practice of law. And perhaps more importantly, clients that rely on such online legal advice will likely suffer serious consequences from utilizing unreliable and inaccurate online advice.
A. Advertising Versus the Online Attorney-Client Relationship
A law firm that sells legal information online does not automatically create an attorney-client relationship. However, as Professor Aresty points out, “as attorneys provide more and more information services on Websites, the delicate question of when services become practice of law becomes a fundamental issue as to what conduct will be regulated under the rules of professional responsibility.”
In considering whether an attorney-client relationship has been formulated, a court will consider the generality of the advice provided. If a website provides information that is general in nature, a court will likely find that a duty does not exist between the online user and the legal services provider. On the other hand, “if a lawyer is found to be ‘answering questions specifically geared to a real factual and legal situation,’ that lawyer must accept the responsibility of the duty that stems from such a professional-client relationship.” It must be noted however, that while the “specificity of information provided” standard has been utilized in other mediums such as radio, television call-in shows, and newspaper advice columns, at the present, there is no clear authority that specifically addresses the practice of law over the Internet. Combining the “specificity standard” with cases such as Birbrower and Parsons, however, provides insight into the likelihood that the unchartered waters of Internet legal practice will likely lead courts to address eLawyering in a similar manner, if not more stringently.
B. Effect of Online Disclaimers
One way lawyers have attempted to avoid the consequences of the attorney-client relationship with respect to online legal practice is to include disclaimers on their websites that attempt to circumvent such relationships. Typical disclaimers include provisions that aim to inform the client that the firm does not intend to provide legal advice on the website upon which one is to rely; these disclaimers also often aim to avert any possible liabilities that may arise from unintended formation of the attorney-client relationship. One example of a typical disclaimer provides that:
This Web page is a public resource of general information which is intended, but not promised or guaranteed, to be correct, complete and up-to-date. However, this Web page is not intended to be a source of advertising, solicitation, or legal advice; thus the reader should not consider this information to be an invitation for an attorney-client relationship, should not rely on information provided herein and should always seek the advice of competent counsel in the reader's state.
Despite the comprehensiveness of these provisions, in determining whether an actual attorney-client relationship exists, courts have largely ignored these disclaimers. As Professor Biegel notes of the accepted standard for using online disclaimers, “a person cannot avoid liability by simply declaring that what he or she is doing is not really what people think he or she is doing. Thus, a lawyer cannot avoid liability by saying that she is not really representing a client when, in fact, she is representing a client.” Therefore, while lawyers may attempt to include disclaimers on these increasingly interactive websites in the attempt to lessen their responsibility – courts will likely look past these disclaimers to the type of interaction between the client and the lawyer, as well as the legal advice provided.
Currently, as Professor Lancott points out, “there has been very little analysis of whether such disclaimers would actually be effective in a malpractice claim by a disappointed cyberclient.” However, despite the sparse litigation over these provisions, looking to how courts generally deal with the legal effect of disclaimers provides strong evidence to suggest that the actual effect of these provisions are often disregarded by courts. Ultimately, determining whether a relationship exists between a client and an attorney is the threshold question in the multijurisdictional question because “without such a relationship, a lawyer’s responsibility to a potential client is considerably lessened.”
IV. Suggested Solutions for Resolving the Conflict Between eLawyering and the Unauthorized Practice of Law
While the 2002 amendments to the Model Rule 5.5 provide eLawyers with some capacity to practice in an unlicensed jurisdiction, the amended rule still leaves some fundamental problems dealing with the unauthorized practice of law unresolved. The first, and perhaps most important problem would be the rule’s requirement that the work the lawyer undertake be “temporary.” Because the length of legal matters may be drawn out over a long period of time depending on the type of case (e.g., securities, property disputes) – the requirement that the lawyer’s work be merely temporary may undercut the ability of a lawyer practicing over the Internet to be fully involved in a client’s case. Second, Model Rule 5.5 requires that the lawyer working on a matter outside of her jurisdiction be reasonably related to the type of practice that the lawyer undertakes in her own jurisdiction. This second requirement is also problematic because legal work may take on many different types of issues – and if an issue arises outside the field of specialty the lawyer may practice in her jurisdiction, she may not be allowed to represent the client, even if substantial research can be done to undertake representation in an informed manner.
In response to the inability of the model rule to resolve the multijurisdictional question, many Internet scholars have come forth with a wide array of possibilities in suggesting possible solutions to standardize law practice on the Internet. One solution is that lawyers should only be able to give general advice over the Internet, thereby negating the attorney-client relationship so that the advice offered cannot be considered the practice of law. However, as the current laws elucidate, the line between advertising and actual legal advice is not always easily distinguishable. Moreover, the regulation of a standard that does not allow law firms and legal professionals to give more than “generic” advice would be extremely difficult to enforce. Finally, this solution is problematic because the technological advances in digital communication are pushing the legal profession forward in transforming traditional legal practice to an online platform, and adhering to a “general advice” solution would seem to be taking technological steps backward.
Another solution that has been offered is that a national licensing system should be created to permit lawyers licensed in one jurisdiction to practice in any jurisdiction. Proponents of this solution argue that a national system would permit a lawyer to practice in every jurisdiction, while retaining a system of accountability for the clients in which they represent, by requiring lawyers to be knowledgeable about the laws in the jurisdictions they enter via cyberspace. However, the national licensing system also presents significant problems. The largest problem would be the difficulty in creating a national system that “take[s] into account every jurisdiction’s laws and codes pertaining to ethics and malpractice when providing licensing requirements to cyberprofessionals.” In essence, in order for a national licensing system to be created, the system would have to reconcile conflicting laws in different jurisdictions, which, similar to the first proposed solution, would also be very difficult to administer.
V. A New Approach for the Future of eLawyering: The Tail-End “Enforcement” Solution
In light of the inherent difficulties that accompany the current proposed solutions, an additional solution should be considered in resolving the eLawyering dilemma. Rather than focusing on creating a unified national system or regulating the content of specific websites, state bars and local courts should continue to govern the practice of law over the Internet, but continue to do so while administering more stringent penalties for lawyers that misrepresent their clients. In essence, rather than focusing on developing an entirely new system to deal with the transition of lawyering to the Internet – by enforcing strict punishments to those that are involved in malpractice while practicing in cyberspace, lawyers practicing over the internet would be more careful in providing legal advice to clients that may venture onto a website seeking legal counsel. Thus, the stringent penalties would act as deterrence to cyberlawyers who are not fully capable to engage in legal practice consistent with the standards of professional responsibility expected by a traditional client.
As noted earlier, the current approach is that local courts have established penalties for lawyers who engage in the unauthorized practice of law. However, a survey of these penalties reveals that the assigned punishments for the unauthorized practice of law are not strict enough to act as a convincing deterrence for lawyers who stand to reach a much larger client base through the Internet. For example, in Texas, a person found guilty of committing the offense of the unauthorized practice of law is liable for a Class A misdemeanor offense. The maximum terms of such a punishment are up to one-year imprisonment and $4000 in fines. In California, the maximum penalties for the unauthorized practice of law are up to one year in jail and a $1000 fine. As a standard of comparison, Texas’ unauthorized practice of medicine statute establishes no minimum penalties by which an individual could be given; rather, the penalty is “based on the seriousness of the violation, including: (a) the nature, circumstances, extent, and the prohibited act; and (b) the hazard or potential hazard created to the health, safety, or economic welfare of the public.” The disparity between the possible punishments for the unauthorized practice of law and medicine implies that lawyers practicing over the Internet may have less incentive to be fully informed about breaching state laws concerning the practice of law in a jurisdiction that they are not licensed in.
By increasing the penalties for lawyers who commit the unauthorized practice of law, it also raises the level of care by which attorneys act – since the unauthorized practice of law statutes are most often triggered once a client has been harmed in a substantial way. Therefore, increasing the penalties for online malpractice not only deters uninformed lawyers from practicing over the Internet, but it also raises the standard of legal practice for lawyers who utilize the Internet as a legal tool, and encourages them to practice in such a way complies with the expected duties of traditional lawyer.
In addition to these benefits, this solution would allow lawyers to continue to develop different ways of utilizing technology to assist in the advancement of the legal profession, rather than restricting attorneys to traditional methods of practice. While some may argue that the deterrence associated with strict penalties may be crippling to lawyers practicing in the digital market – because the focus is on whether the client has been injured through an attorney’s misrepresentation, lawyers will seek to find ways to utilize the Internet in a way that would allow them do so, while at the same time maintaining traditional standards of professional responsibility. This would promote, rather than restrict the development of technology to comport with the needs of the legal market. Finally, in contrast to the two other proposed solutions, this system of regulation would not be as difficult to administer; clients that receive and rely on incorrect legal information could simply bring the matter before the state bar. Thus, imposing strict penalties on eLawyers who misrepresent their clients balances the need for the increasing transition of the legal profession to the digital platform, while at the same time maintaining a standard of protection for the clients that utilize online legal services.
Conclusion
The age of eLawyering has arrived. Lawyers now practicing in the “age of cyberspace” can no longer ignore the use of the Internet as a powerful tool in maximizing efficiency and communication capability for the purposes of client representation. However, the use of the Internet for the practice of law raises inescapable jurisdictional issues that involve the unauthorized practice of law. Rather than maintaining the status quo by ignoring the tension between eLawyering and the unauthorized practice of law however, by increasing the enforcement of strict penalties for malpractice involved with online lawyering, lawyers can continue to practice law over the Internet – with the knowledge that representation undertaken must be carefully considered.
