Ch. 12: Lawyers Online

Notes

1. What do today's readings suggest about how attorneys can benefit from Internet resources without violating rules of professional responsibility? Note that different rules may apply to different Internet media, such as e-mail, web pages, and chat rooms.

2. In November, 2000, the ABA's Commission on the Evaluation of the Rules of Professional Conduct (the "Ethics 2000" Commission), issued proposed changes to the Model Rules for Professional Conduct. At several points, the Ethics 2000 Commission proposed updating the rules specifically to address concerns raised by online communications.
   
   Proposed Model Rule 72 expressly includes "electronic communication" among the media through which lawyers may, subject to other applicable Rules, advertise their services. Comment 3 to proposed Rule 73 observes that "lawful communication by electronic mail is permitted by this Rule." The Reporter explained of that Comment, "The reference to 'lawful' electronic mail was included to require lawyers to comply with any law that might prohibit 'spamming'. . . ."
   
   Proposed Model Rule 73 includes several changes:
   
   
   • (a) includes "real-time electronic contact" with "in person [and] live telephone" communication as prohibited modes of soliciting professional employment from most types of prospective clients. The Reporter explained, "Differentiating between e-mail and real-time electronic communication, the Commission has concluded that the interactivity and immediacy of response in real-time electronic communication presents the same dangers as those involved in live telephone contact."

   • (b) includes solicitations via "electronic communication" and "electronic contact" among the types of solicitations that the Rule bars because they are known to be unwanted or because they involve coercion, duress, or harassment.

   • (c) subjects "electronic communication" to the requirement that most solicitations of professional employment directed to prospective clients "known to be in need of legal services in a particular matter . . . shall include the words 'Advertising Material' . . . at [its] beginning and ending . . . ." The Reporter explained that the changes were proposed to ensure that e-mail solicitations would be appropriately labeled as such. The Reporter did not specify, however, whether an e-mail's subject line constitutes its "beginning" under the proposed Rule.

Useful Resources and Optional Reading

• LegalEthics.com

• For an analysis of the ABA's formal opinion, Protecting the Confidentiality of Unencrypted E-Mail, as well as some practical suggestions, see Jerry Lawson, E-Mail Security: Reality Check, LLRX.COM, September 4, 2000.
  
  

Bell's Class: Please regard the materials in Ch.12 as optional reading.