The Legal Profession Caught In The Net
by James M. Roche & Dennis A. VanDerGinst
Trial Journal of the Illinois Trial Lawyers’ Association,
Vol. 5 No. 2, Summer 2003
According to Nielsen Net ratings , over 70 percent of the United States population now has Internet access. That number is growing everyday. It is estimated that within five years Internet saturation will exceed 100 percent in our country, with many people having Internet access in multiple locations (e.g. at home, at work, via cell phones, etc.).
The general population has quickly embraced the Internet as the incarnation of the fabled “information superhighway”. However, the legal profession has been slow to adapt to the sweeping changes and exciting possibilities that this technology presents. That is not to say that the typical lawyer does not have good reason to exercise caution. In fact, in some instances, and certainly in some jurisdictions, it would be unwise not to tread lightly, largely due to the fact that regulations concerning attorney conduct and professionalism have not been able to evolve as rapidly as the web has evolved. Furthermore, the legal profession by and large does not have practitioners familiar enough with the Internet to fully understand its implications.
On the one hand, the Internet is a tool that is limited only by the imaginations of those persons who navigate it. It is an academically inspired network with few, if any limits on its content. On the other hand, the legal profession has long been loathe to change, anal in its self regulation and fundamentally skeptical of commercialism within the brotherhood. Many attorneys see the Internet only as another marketing tool that needs to be governed by the application of rigid rules of conduct. Instead of embracing the opportunities the Internet presents, many attorneys wince at the potential competition it engenders and regulation it requires. However, such hesitation not only does a disservice to clients and prospective clients, but to law firms as well.
As with any quickly evolving trend, the use of the Internet within the legal profession carries some weighty questions. When reduced to their simplest form these questions are: What are the opportunities that the Internet presents for the legal profession? What are the problems that the Internet presents for the legal profession? Those are the questions that this article will attempt to answer.
What Opportunities Does The Internet Present For The Legal Profession?
The clearest opportunities that the Internet presents to the legal profession are in the area of marketing. However, marketing potential is simply the tip of the iceberg. In addition to presenting an opportunity to market legal services, the Internet presents opportunities to deliver those services. Innovative uses of the Internet can improve the speed and efficiency of legal services. The by-product of those improvements is a more affordable delivery of legal services and consequentially an enhanced public image of the legal profession.
Recent studies have shown that an increasing number of moderate income individuals are either completely foregoing legal solutions to problems that arise or are relying on self-help alternatives . This paradigm shift is largely due to a consumer rebellion against the cost of legal services. Obviously, the cost of services is closely tied to the costs associated with doing business. In the legal profession some of the largest costs are related to client acquisition. Payroll costs are often another factor affecting the bottom line. Finally, costs associated with the physical plant where the legal services are rendered, typically a law office, can also contribute to a high overhead. All of these costs can be minimized by optimizing usage of the Internet. Thus, profitability does not have to come at the expense of alienating the public, nor at the expense of quality representation.
Even though the Internet existed prior to the time the United States Supreme Court lifted the ban on lawyer advertising in 1977, it has only become a viable vehicle for marketing legal services within the past several years. Since Bates vs. The State of Arizona , attorney advertising, once anathema to the profession, has become marginally tolerated. Many corners of the profession continue to debate the effect of advertising on the profession. Some argue that it converts the practice of law into a business with a detrimental effect on clients and consequently undermines the public confidence in the legal system. With the advent of the Internet the appropriateness of advertising in the legal profession is poised for more debate.
Due to the historical disdain the legal profession has had for self promotion, client development originally centered around the reputations and personal affiliations that the firm rainmaker had developed. The Bates decision opened the door for other lawyers to compete for clients. However, since the profession continued to strictly regulate advertising efforts, as a group the legal profession has never really efficiently marketed its services. Again, this type of operational inefficiency with respect to client acquisition has contributed to the high cost of legal services.
The Internet dramatically alters the economics of attorney advertising. The centerpiece of an Internet presence is the website. Websites are simply a collection of documents that are linked together and are written in a language that allows them to be seen online. Other than word of mouth referrals, websites and other Internet opportunities are the least expensive marketing tools available.
An Internet presence can be secured for a relatively small amount of money. Websites can range in cost from a few hundred dollars to in excess of $100,000. However, you do not need to spend a lot of money to have a significant presence on the Internet. Internet marketing is so inexpensive that it is leveling the playing field for client acquisition in ways that other advertising options never could. Attorneys who are opposed to “advertising” their firms must come to understand that a website is not simply a marketing effort. It has become an expected professional courtesy. Existing clients, prospective clients, potential employees and peers have all come to rely on the presumption that a viable and competent law firm will have a website. Whether the website is aggressively marketed, of course, is a matter of personal choice. However, it can be a firms most cost effective source for client acquisition.
We live in a fast food society wherein convenience and speed are vital for business success. When a firm has a website that outlines its qualifications and the services it provides, that information is available to the client 24 hours a day, seven days a week. Internet advertising can be more frequently updated than print, radio or television campaigns and at far less cost. Most importantly, the Internet allows the firm the flexibility to present as comprehensive a message as it likes, for very little money. Firm brochures are typically limited by printing and material costs. Television advertising is limited to a thirty or sixty second message. Yellow page advertising is usually limited to a one or two page advertisement. A website can literally be hundreds of pages in length. One longtime criticism of lawyers advertising was that such efforts could too easily mislead the lay public. Now, however, the public is no longer as naive as they once were with regards to advertising. Additionally, the web-savvy public is now able to do in-depth research on attorneys via the Internet and make more informed decisions on who to retain.
The Internet can also be used to streamline the intake process. The most familiar form this takes is the use of electronic mail, or e-mail as it is commonly known. However, e-mail technology can be used in a number of interesting ways. For instance, some law firms utilize an interactive online questionnaire. Website visitors can fill out simple or comprehensive intake sheets online that are reviewed by the law firm. The law firm can do a check for conflicts of interest and determine if they wish to take the case. If so, an attorney retainer agreement and any other documents can be e-mailed to the prospective client. Clearly, the expediency that e-mail affords is welcome by many potential clients. It also makes the best time of attorney and staff resources.
If e-mail seems too impersonal or not interactive enough, websites can be set up with “chat rooms” where the visitor and firm representative type back and forth. Alternatively, a tool known as “instant messaging” can be used to accomplish the same thing. The point is that the Internet offers a number of viable, effective resources to conduct client intakes.
When used innovatively the Internet can effectively assist with case development. First of all, it offers more research tools than any library could ever hope to match. Along a similar vein, it also offers access to countless investigative resources. On the Internet you can find and secure investigators, court reporters, expert witnesses, asset searches, or just about any information or service that you can imagine.
Case development can be enhanced in many other ways using the Internet as well. For instance, many law firms now allow clients to access their files via the Internet. Similarly, some firms provide clients with passwords to access secured pages on the firms website for purposes of posting messages or retrieving updates as to the status of a case. Often this occurs in the context of class action or mass tort cases.
Another extraordinary use of a law firm website is to encourage visitors to participate in ?online juries? or surveys, thereby inexpensively creating focus groups for insight into pending cases .
Listserves can also be helpful and informative with respect to case development. By joining a law related listserve you become part of a network of attorneys who share insights and information about their respective cases.
When done correctly a website is not only an online firm brochure, but it can also be your best way to enhance your public image. This should not be done through self promotion, but by offering loads of relevant and useful content and resources.
A legal FAQ can be a very helpful tool for clients. Alternatively, an online legal dictionary is a wonderful option for clients to be able to access through a firm website. Clients and prospective clients also appreciate links to other consumer and law-related websites. A legal or consumer news page, frequently updated, can be very beneficial to visitors to a firm website. The possibilities are endless.
What Problems Does The Internet Present For The Legal Profession?
Most of the potential problems that the Internet poses for the legal profession come in the area of ethical considerations. Specifically, the question of legal advertising over the Internet poses significant and novel questions in the areas of legal ethics and professional responsibility. Published rules generally do not address the realities of Internet related concerns because they were adopted before lawyers went online.
There have been a few states that have adopted specific regulations regarding attorney use of cyberspace. However, even the regulations in those states fail to consider a number of potential ethical issues that could arise.
For firms interested in creating and maintaining a presence on the Internet, the threshold question is not whether it is advertising, but instead, whether the content is “commercial speech”, a concept far broader than that of advertising. The ethical provisions of the states, found in the rules of professional conduct or codes of professional rules, are not limited to advertising or solicitation activities. The rules govern all commercial speech of the lawyers, the firm, its employees and agents. The Supreme Court has defined commercial speech as speech where the purpose is “to propose a commercial transaction” . Most lawyer websites on the Internet propose a commercial transaction. Law firms do not escape this definition simply because their website provides legal information to the public.
Therefore, the question becomes . . . what rules apply? Without a doubt, and with few exceptions, it is likely that the rules of professional conduct that govern the communication of legal services, in particular those that prohibit misleading statements and otherwise control advertisements and solicitations, are the primary rules that the law firm needs to be cognizant of when deciding whether and how to post a website.
The ethics of the legal profession are governed on a state by state basis. The Internet is obviously a form of communication without geographic boundary. Therefore, it is sometimes difficult to determine which state rules control a law firms use of the Internet for marketing purposes. States such as Iowa, Florida, Texas, New Mexico, and Nevada have imposed a varying range of restrictions far beyond those of the ABA model rules.
In determining which state’s rules apply to a law firm’s marketing effort on the Internet, the important factors involve: 1) the states in which members of the firm are admitted to practice, 2) the states in which the firm is seeking clients, 3) the states in which the firm practices.
ABA model Rule 8.5 governs circumstances where members of the firm are admitted to a number of different states. According to the rules, the ethical obligations that would apply are those of the state in which the lawyer principally practices. Therefore, this would suggest that if a firm has attorneys that principally practice in a number of states the firm would need to comply with the rules of each of those states where there is an admission by a member of the firm and in which the firm is seeking clients.
In many states the question of what rules apply to Internet advertising is still being debated. In Illinois, we are fortunate that the ISBA has issued an advisory opinion that addresses two major ethical issues connected to use of the Internet in the legal setting. First, the advisory committee concluded in summary that lawyers may use electronic mail services, including the Internet, without encryption to communicate with clients unless unusual circumstances require enhanced security measures. Secondly, the committee indicated that the existing rules of professional conduct governing advertising, solicitation, and communication concerning a lawyer’s services provide adequate and appropriate guidance to a lawyer using the Internet. The creation and use by a lawyer of an Internet website containing information about the lawyer and the lawyer’s services that may be accessed by Internet users including prospective clients, is not “communication directed to a specific recipient” within the meaning of the rules, and therefore only the general rules governing communications concerning the lawyers advertising should apply to the lawyer website on the Internet. If a lawyer uses the Internet or e-mail services to direct messages to specific recipients then the rules regarding solicitation would apply. Thus, with respect to a website, Rule 7.1, prohibiting false or misleading statements regarding a lawyers services, and Rule 7.2, regulating advertising in the public media, are sufficient to guide lawyers and protect the public. With respect to e-mail, chat groups, or similar services, Rule 7.3, which governs solicitation, would be controlling.
Advertising is not the only online legal ethics issue. Online discussions of legal issues with potential clients create a number of concerns. When a client leaves a legal question posted online, and lawyers respond, how should that interaction be viewed? Is an attorney-client relationship created when the lawyer provides legal advice online? The safe answer to that question is that when reliance on legal advice is foreseeable, an attorney-client relationship exists.
Unauthorized Practice Of Law And Conflicts Of Interest
Given the global nature of the Internet, people who contact a law firm via online sources may be contacting the firm from a remote location. That raises the question of whether or not responding to those inquires subjects the lawyer or the firm to a potential claim of unauthorized practice of law in that jurisdiction. Furthermore, since e-mails can be received by a law firm from unsolicited sources, there is the potential that the firm could be contacted about a case where they represent an adverse party. For these reasons, it is wise for a law firm to put a procedure in place that allows the firm to do a conflicts check prior to receiving much in the way of unsolicited information from a potential online client.
Another area of dispute with respect to lawyers and the Internet is in reference to the issue of confidentiality of client communications, particularly via e-mail. However, in Illinois that issue has been addressed as outlined above.
So, how does a law firm avoid these potential problems and maximize its use of the Internet? The answer is disclaim, disclaim, disclaim. Be sure to put a disclaimer into your e-mail and on your web pages. For instance, something similar to the following might suffice: “The opinions and ideas expressed herein do not constitute legal advice and should not be relied upon as such. If you have a legal problem, please consult a lawyer.” Additionally, if there are disclaimers and or disclosures that are required by the states in which the law firm practices, those should also be placed within the website. Illinois does not specifically require any such disclaimer language on web pages. However, again, an abundance of caution would be wise in order to attempt to limit the firm’s exposure to potential claims of ethical violations, both inside and outside the state, given the global reach of the Internet.
The Internet represents an exciting new landscape for attorneys. As with any new frontier there are going to be unanswered questions, challenges and hurdles that still have to be overcome. Typically, those challenges arise in the area of legal ethics.
However, it is clear that the Internet is quickly becoming the world’s number one source for information, entertainment, and communication. Therefore, the legal professions failure to embrace such an opportunity would be calamitous. It is clear that the innovative use of the Internet can help to reduce overhead costs that law firms experience, increase the ease of communication with clients and prospective clients, and assist in the effective delivery of legal services. In light of the above, no competent law firm should be without significant access to the Internet, nor should be without a significant presence on the Internet.