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Bar Journal - June 1, 2002

The Ethics of Practicing Law in Cyberspace

The Ethics of Practicing Law in Cyberspace



Got a legal problem? Try browsing a free Internet library of legal questions and answers for guidance. Pose your question on an Internet bulletin board at one of the "ask-a-lawyer" web sites, and watch the board for your answer. Submit a question to a virtual law Internet community, and wait for a reply by email. Visit an Internet referral service to forward your question to several local lawyers who can propose a fee to represent you. Log on to a commercial chat room and pay for real time advice on your question. Or visit a law firm web site with a pay-per-question feature.

Though the business models differ, many sites now offer law on the Internet, from legal news to case law, from quick questions and answers to expert advice. Venture capitalists have poured an estimated $100 million into dot-com web sites geared to bringing lawyers and clients together.1 With new web sites opening and closing every month, the only certainty is that some forms of law practice on the Internet will become a permanent part of providing legal services. "On the eve of a new millennium, American lawyers only now are 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."2

One big advantage of online legal services is the possibility for increased access to the legal system, especially for those of moderate and middle incomes.3 The American Bar Association formed a special Task Force on E-Lawyering to explore how to use the Internet to bring legal services to those who otherwise cannot afford them.4 Another advantage of online legal services is that lawyers can use the new technology to be more efficient, communicating with their clients without the usual limits on time and place.

Internet technology is so new that lawyers may not even see all of the potential to improve the delivery of legal services. Right now Internet legal services web sites are "in the midst of a laboratory setting, testing the balance between consumer demands and operational efficiencies."5 The challenge will be for lawyers to recognize the vast potential of cyberspace as a legal delivery system, at the same time embracing their important ethical obligations.

This article explores some of the most popular new Internet law models and how the New Hampshire Rules of Professional Conduct will apply to lawyers delivering legal advice online. This article will not address how the advertising and solicitation ethics rules apply to lawyers' conduct online, though that topic also presents several important ethical implications.


One way laypeople seek legal advice is through online newsgroups, which are discussion forums, categorized by subject, where people post and read messages from other users.6 "Newsgroups...serve groups of regular participants, but these postings may be read by others as well. There are thousands of such groups, each serving to foster an exchange of information...on a particular topic. About 100,000 new messages are posted every day."7 A representative newsgroup, www.alt.lawyers, shows recent postings with questions about personal injuries, real estate, divorce, traffic violations, copyrights, and hospital billing issues.8

In another type of discussion group, called a "listserv," messages are automatically broadcast to every subscriber to the list. The result is similar to a newsgroup, except that the messages are transmitted as email and are therefore available only to members of the list.9 Another version of these groups is the "chat room," in which two or more people communicate online in real time. is a commercial web site created by Martindale-Hubbell, the legal directory publisher.10 offers self-help legal resources, a legal question and answer discussion forum, and an option to request an anonymous referral to a local lawyer. In its question and answer forum, states that a lawyer-client relationship is not created by visiting the site, and that visitors should retain a qualified local attorney for legal advice applicable to their specific facts.11

Consider one typical exchange on the Q&A Archive:

Who is responsible for the injury I suffered while performing my job? I fell down a flight of greasy stairs at a restaurant while delivering supplies. I have a herniated disk because of this incident. Who is responsible for my injuries (the restaurant or my employer)?

The reply, signed by a lawyer, reads:

The short answer is probably both. Your employer is typically responsible for injuries that you suffer while at work, regardless of fault. In other words, even if you saw the grease, decided to go for a ride and were injured, your employer would still be responsible for paying for your medical bills and disability. This is, at least in California, and, I suspect in Massachusetts, Workers Compensation. The restaurant would be responsible for their own negligence in causing the injury. However, in so far as the restaurant is concerned, you would have to establish that they knew or should have known that the grease was present. An owner is responsible for a dangerous condition on the property but, typically, you have to show that they knew or should have known that the grease was present. Thanks for your question.12

Other questions on the Q&A Archive include the following:13

  • Should I Hand My Wife's Medical Records To The Other Driver's Insurance Company?
  • Is My Former Company Able To Withhold My Sales Commissions?
  • What Is The Punishment For An Ounce Of Marijuana?
  • Should A Home In Which I Have A 1/2 Interest Be Listed In A Bankruptcy Filing?
  • Do I Have Any Right Of Privacy On My Workplace Computer?
  • Am I Able To Recover For My Injuries If My Vehicle Was Not Insured?
  • How Can We Stop The Nursing Home From Taking All Of Our Mother's Assets?
  • Am I Required To Share My Inheritance? web site visitors can also request a direct contact with a lawyer, and will forward an anonymous question to lawyers within 30 miles of the questioner's zip code. Lawyers may reply with comments by email, together with information about the lawyer, the firm, their fees and engagement terms, and other contact information. suggests that attorneys keep their email replies "general in nature and avoid providing fact-specific legal advice."14 The questioner may then decide to initiate contact with one of the lawyers in order to retain their services. tries to avoid many potential ethical problems by positioning the site as "education on general legal issues" and disclaiming any lawyer-client relationship. The web site terms and conditions (in a small print link at the bottom of a page) states:

The purpose of this Site is to give the visitor a general understanding of the law; not to provide specific advice. While a great deal of care has been taken to provide accurate and current information, the ideas, general principles and conclusions presented at this site may differ depending on local, state and federal laws and regulations and court cases. Because the law constantly changes and varies from jurisdiction to jurisdiction, and is subject to varying interpretations, the reader is urged to consult professional legal counsel in his or her state regarding the applicability of any points of law discussed at this Site to any specific problem. This web site should not be used as a substitute for competent legal advice....Martindale-Hubbell and offer no legal advice, recommendations, mediation or counseling under any circumstance. This site is not a Lawyer Referral Service, but merely assists you in narrowing your choices in selecting your lawyer. You are totally and solely responsible for your own selections and actions. Martindale-Hubbell never receives any portion of any lawyer's fees and any arrangements made are strictly between you and your lawyer and do not involve Martindale-Hubbell in any way.15 is another commercial web site offering free discussion groups for legal questions and answers, links to state and local legal forms, an online bookstore, referrals to local attorneys, as well as real time chat with a lawyer.16 The site disclaimer says that the free "[f]orums are intended to enable consumers to benefit from the experience of other consumers who have faced similar legal issues...FreeAdvice does NOT vouch for or warrant the accuracy, completeness or usefulness of any posting."17

A $9.95 fee gives a user access to the live chat service for one week. Like, the live chat service is "formalized and limited by restrictions and warnings in an evident effort to minimize liability":18

The lawyer who will handle questions on FreeAdvice Live! is NOT your lawyer, does NOT practice law on your behalf, is NOT necessarily licensed in your state, and will NOT discuss specific details of the law in any state....FreeAdvice Live! seeks to enable you to ask questions to get legal information - not legal advice - point you to helpful legal resources, outline possible approaches, and/or explain whether and how retaining a lawyer might help you....19

Another way for laypeople to seek legal advice online is to contact a lawyer directly through his or her web site, and pay the lawyer's fee. "[F]ee-based sites tend to acknowledge the possibility of an attorney-client relationship, but use disclaimers in attempts to limit the duties attorneys might owe to their cyberclients."20

For example, California attorney Peter Stone offers legal consultation by email, providing a short answer to a short legal question over the internet for a fee of $20.00.21 Mr. Stone's web site acknowledges that a lawyer-client relationship may be created by the email exchange, but states that the relationship will end when the attorney replies with his email advice. Before sending their questions, internet questioners must acknowledge and electronically signal their agreement to a whole list of waivers and disclaimers: they are located in California, they waive any conflicts of interest, understand the limited scope of representation, and accept the risk of "hackers and other nerds" intercepting their email message, among other things.22


These examples don't begin to cover all of the different ways that lawyers can provide legal services in cyberspace, but they do provide a useful backdrop to discuss the potential ethical issues raised. "The ethical issues are complicated to discuss...because there are so many ways in which lawyers can go about providing advice over the internet," according to attorney Jerry Lawson.23 However, "It is not so much the location that can create problems, as what lawyers do when using that location."24

New Hampshire has no reported cases or ethics opinions dealing with legal services on the internet, but several other states have already ruled that lawyers' ethical regulations apply to providing legal services on the internet.25 "An attorney may provide legal services over the Internet, through the attorney's law firm, on matters not requiring in-person consultation or court appearances. All rules of professional conduct apply, including competence, communication, conflicts of interest, and confidentiality."26

Does Giving Legal Advice Online Create a Lawyer-Client Relationship?

A threshold question for any lawyer providing legal advice online is whether a lawyer-client relationship is created. If no lawyer-client relationship is created, then online exchanges "may evoke regulatory concerns about advertising and solicitation, but they do not trigger the weighty obligations inherent in lawyer-client relationships."27

"To imply an attorney-client relationship...the law requires more than an individual's subjective, unspoken belief that the person with whom he is dealing, who happens to be a lawyer, has become his lawyer."28 The Restatement (Third) of the Law Governing Lawyers outlines the following test for forming a lawyer-client relationship:

A relationship of client and lawyer arises when:

(1) a person manifests to a lawyer the person's intent that the lawyer provide legal services for the person; and either

(a) the lawyer manifests to the person consent to do so; or
(b) the lawyer fails to manifest lack of consent to do so, and the lawyer knows or reasonably should know that the person reasonably relies on the lawyer to provide the services.29

A prospective client may show his or her intent to receive legal services by presenting a specific legal question to a lawyer. A lawyer can then consent to provide the legal services either by replying to the client expressly stating consent or by actually providing the legal advice. A lawyer-client relationship can also be created on an estoppel theory based on the client's reasonable reliance on the lawyer. A lawyer-client relationship may exist without any written contract, and without the payment of any fee.30

For example, in Togstad v. Vesley, Otto, Miller & Keefe, the Minnesota Supreme Court found that a lawyer-client relationship was inadvertently created even though the lawyer declined representation.31 Mrs. Togstad had sought legal advice about a potential medical malpractice claim on behalf of her husband who suffered a stroke after surgery. She met with attorney Jerre Miller, who asked questions and took notes for between 45 minutes and one hour. At the end of the meeting, Miller explained that he did not think Mrs. Togstad had a case, but told her he would discuss it with his partners and would call her if he changed his mind. Mrs. Togstad later consulted another attorney who believed she would have had a cause of action but by then the statute of limitations had run.

Mrs. Togstad sued Miller and his firm for legal malpractice, claiming that she had been given a legal opinion that she had no case.32 On appeal, the court upheld the jury's finding that there had been a lawyer-client relationship, and that Miller was liable for malpractice for nearly $650,000.33 The court ruled that "[Mrs. Togstad] sought and received legal advice from [Miller] under circumstances which made it reasonably foreseeable to [Miller] that [Mrs. Togstad] would be injured if the advice were negligently given."34 Mrs. Togstad "went to Miller for legal advice, was told there wasn't a case, and relied upon this advice in failing to pursue the claim for medical malpractice."35 Thus under the theory of Togstad, a lawyer answering an online legal question could easily create a lawyer-client relationship if the online exchange includes legal advice relating to the client's specific facts.

Can a Disclaimer Prevent a Lawyer-Client Relationship?

Many legal web sites use a disclaimer to attempt to prevent a lawyer-client relationship. "Indeed, much of the legal advice-giving activity online seems to hinge on the belief that blanket use of disclaimers will protect lawyers against all risks associated with their conduct."36 But online disclaimers may not provide the protection that many lawyers would hope.

At least one federal court has held that an agreement is formed between a web site operator and a web site visitor only when the visitor takes some positive action to show assent to a web site agreement, such as clicking an "I agree" box on the site. In Specht v. Netscape Communications Corp., an arbitration clause was listed on the web site's page of user terms but there was no way to show that a visitor read and understood the terms and agreed to be bound by them.37 The court ruled that, lacking some signal of assent, merely posting user terms on a web site was not sufficient to bind a web site visitor. Thus a "click wrap" disclaimer, where a potential client can only submit a legal question online after signifying assent to the lawyer's disclaimer, may be the only way to create an enforceable disclaimer.38

Even if a lawyer did create a disclaimer that potential clients read and to which they signaled their consent, the question remains whether such a disclaimer would be permissible.

Indeed, if disclaimers could be so easily utilized, a lawyer could avoid the prospect of malpractice liability, or even the reach of most ethics rules, simply by expressly disclaiming the intent to create an attorney-client relationship with anyone....At some point the conduct of the lawyer would be so inconsistent with the disclaimer of a professional relationship that the disclaimer would be treated as ineffective.39

Three states have already ruled that disclaimers will not avoid lawyer-client relationships in the context of 900-number telephone services to provide legal advice.40 "A lawyer operating a '900' pay-for-information telephone number by which callers are given legal information ... enters into a lawyer-client relationship with the caller and may not avoid it by disclaimer."41 The validity of a disclaimer is likely to be measured against the lawyer's conduct, depending "in part on the extensiveness of the advice sought and the fact-intensiveness of the answer given by the attorney."42


Assuming that a lawyer-client relationship is created online, and is not avoided by a disclaimer, "[a]ll the rules of professional conduct apply, including competence, communication, conflicts of interest, and confidentiality."43

Competence, Rule 1.1

Rule 1.1 requires a lawyer to provide competent representation to a client.44 This includes a responsibility to gather sufficient facts about the client's problem before developing a strategy for solving the legal problems a client presents.45 Lawyers may answer discussion group questions, but many internet discussion groups impose no oversight on who may answer questions,46 and offer no assurance about the competence of the information and advice given.47

Confidentiality of Information, Rule 1.6

Under Rule 1.6, a lawyer cannot reveal client information,48 at the risk of waiving the lawyer-client privilege.49 The ABA has taken the position that a lawyer does not violate Rule 1.6 by using email to communicate with a client.50 The ABA views email as "affording a reasonable expectation of privacy from a technological and legal standpoint," analogous to traditional mail, telephone, and fax transmissions.51 However, the ABA recommends that a lawyer consult with the client and follow his or her instructions as to the mode of transmitting highly sensitive information.52

Conflict of Interest, Rules 1.7 and 1.9

Absent client consent, a lawyer may not represent a client if the representation of the potential client will present a conflict of interest with another client, a third party, or the lawyer's own interests.53 Similarly if a potential client's interest would be adverse to a former client and the new representation would be substantially related to matters covered in representing the former client, a lawyer would be disqualified absent client consent.54

Among the problems with legal services on the internet is how to check for conflicts of interest before learning confidential information. On the internet,

[I]nformation can be more readily disclosed to lawyers without their consent. Not too long ago, a person who wanted to hire a lawyer had to call him on the phone or stop by to see him....Now, a putative client can simply send an e-mail-from an address which may not be as descriptive of the person's identity as letterhead can be-to a lawyer that discloses important confidential information that could lead to disqualification of the firm....If a law firm can be disqualified because it received information from a prospective client during a phone call, it can likewise be disqualified if it reviews the same information sent by email....55

The Arizona Committee on Rules of Professional Conduct takes the position that lawyers should probably not answer specific legal questions posed in discussion groups and chat rooms because of both the inability to screen for a potential conflict with an existing client and the possibility of disclosing confidential information.56

Professional Independence of a Lawyer, Rule 5.4

A lawyer or law firm may generally not share legal fees with a nonlawyer,57 and cannot team up with a nonlawyer to practice law.58 "These limitations are to protect the lawyer's independence of professional judgment."59 Creative dot-com enterprises "may run afoul of Rule 5.4 if they amount to lawyers and nonlawyers teaming up to practice law."60

Unauthorized Practice of Law, Rule 5.5

Rule 5.5 states: "A lawyer shall not...practice law in a United States jurisdiction where doing so violates the regulation of the legal profession in that United States jurisdiction."61 One problem is that each state has its own view of what activities constitute "the practice of law," and its own theory about what it means to practice law "in" a jurisdiction.62 The ABA E-Lawyering Task Force has published draft recommendations that a lawyer's web site clearly state the jurisdiction to which any online legal advice relates, particularly considering that non-lawyers often have little or no understanding that laws vary from state to state.63


As the internet grows as a way to deliver legal services, it also grows as a way for lawyers to learn about Internet law and ethics. To anyone who wishes to explore more internet resources on legal ethics, I suggest the following web sites:

  • This site is sponsored by the American Bar Association through their E-Lawyering Task Force. It covers practical and theoretical cyberlaw issues, draft guidelines for best practices, and online discussion groups for cyberlawyers.

  • This web site publishes a daily email newsletter on emerging internet law news, provides a discussion list for internet law professionals, and publishes articles by lawyers around the country.

  • This site from lawyer David Hricik covers all aspects of legal ethics, including internet issues. Mr. Hricik also produces a monthly newsletter, E-Ethics, and archived issues can be found on this site.

  • This is another private site on all aspects of legal ethics, maintained by lawyer Peter Krakaur, with extensive links to state ethics rules and ethics opinions.


1. Terry Carter, Checkbook Credibility?, ABA Journal (June 2000).
2. Catherine J. Lanctot, Attorney-Client Relationships in Cyberspace: The Peril and the Promise, 49 Duke L.J. 147, 156 (1999).
3. Carter, supra note 1.
4. Id.; see also
5. Joan C. Rogers, Cyberlawyers Must Chart Uncertain Course in World of Online Advice, ABA/BNA Lawyers' Manual on Professional Conduct, at 2 (March 15, 2000) (quoting Will Hornsby, then staff counsel to the ABA standing Committee on the Delivery of Legal Services, and author of a November 1999 article entitled Improving the Delivery of Affordable Legal Services Through the Internet: A Blueprint for the Shift to a Digital Paradigm).
6. Reno v. American Civil Liberties Union, 521 U.S. 844, 851 (1997); (site visited April 14, 2002).
7. Reno, 521 U.S. at 851.
8. http://www.alt.lawyers (site visited April 14, 2002).
9. (site visited April 14, 2002).
10. (site visited April 14, 2002).
11. ("All information provided in this area is general in nature and is provided for educational purposes only. It should not be construed as legal advice. By its nature, Ask a Lawyer does not provide confidential information and an attorney client relationship is not established. For legal advice applicable to the facts of your particular situation, you should obtain the services of a qualified attorney licensed to practice in your state, such as those listed in the [Martindale-Hubbell] Law Directory.)"
14. (site visited April 14, 2002).
16. (site visited April 14, 2002).
17. Id.
18. Lanctot, supra note 2, at 152 (referring to early web site Dear Esquire as a prototype for and other web sites).
19. (site visited April 14, 2002) (FreeAdvice Live! is NOT a substitute for asking advice from or retaining a lawyer of your own. The lawyer who will handle questions on FreeAdvice Live! is NOT your lawyer, does NOT practice law on your behalf, is NOT necessarily licensed in your state, and will NOT discuss specific details of the law in any state. The lawyer does NOT receive any portion of your fee, and will NOT serve as your legal counsel, during the Live Chat or thereafter, so you can get a completely candid evaluation. FreeAdvice Live! seeks to enable you to ask questions to get legal information - not legal advice - point you to helpful legal resources, outline possible approaches, and/or explain whether and how retaining a lawyer might help you, and answer questions such as if your type of matter is one that is customarily handled on a "contingency" basis (no legal fee until the you recover).)
20. Lanctot, supra note 2, at 153.
21. (site visited April 3, 2002).
22. (site visited April 3, 2002) (Before submitting a question, a web site visitor must check a box to acknowledge each of the following statements: "I am only interested in answers according to California Law. I understand this is only a general answer to a general question and I need to consult face to face at length with an attorney to get a more complete specific answer, and there are no guarantees with regard to the answers. I agree to waive any conflict which may arise in the future from the use of this brief advice service, such conflicts include but are not limited to, you may ask advice on this brief message service to attempt to conflict me out of a case you know I am or will be involved in, you may have an accident with a client of mine with your automobile and agree to waive my taking the case against you, you may owe money to a client of mine and you agree to waive my taking the case against you. I am not a member of any institution, corporation or organization attempting to create a conflict by asking your office for advice, and any such conflict is waived. I understand that the scope of representation is just to read and respond to a short legal question on California law. My question is a California civil law question, not a criminal question. I am a resident of California. I agree that any attorney client relationship will terminate upon my receipt of e-mail responses. I agree to accept the risk of others (hackers and other computer nerds) being able to intercept my e-mail message. I understand that any further telephone or e-mail requests will be at the rate of $180 per hour billed in one-half hour increments. I understand attorney has informed me there is no malpractice insurance for internet advice.").
23. Rogers, supra note 5, at 1.
24. Id.
25. Alabama Ethics Opinion RO-96-07; Arizona Ethics Opinion No. 97-04; Florida Ethics Opinion 00-4 (July 15, 2000); Iowa Ethics Opinion 97-23; Michigan Ethics Opinion RI-276 (ruling that "[a] lawyer may not solicit legal business during an interactive electronic communication unless ethics rules governing in-person solicitation are followed.").
26. Florida Ethics Opinion 00-4, at 1 (July 15, 2000).
27. Lanctot, supra note 2, at 158.
28. Sheinkopf v. Stone, 927 F.2d 1259, 1265 (1st Cir. 1991).
29. RESTATEMENT (THIRD) OF LAW GOVERNING LAWYERS 26 (Proposed Final Draft No. 1, 1996).
30. Westinghouse Elec. Corp. v. Kerr-McGee Corp., 580 F.2d 1311, 1317 (7th Cir. 1978).
31. 291 N.W.2d 686 (Minn. 1980) (per curiam).
32. Id. at 692.
33. Id. at 692.
34. Id. at 693.
35. Id.
36. Lanctot, supra note 2, at 187.
37. Specht v. Netscape Communications Corp., 150 F.Supp. 2d 585 (S.D.N.Y. 2001).
38. David Hricik, The Problem with Being Everywhere: Managing Conflicts and Unauthorized Practice of Law in the Digital Age, at 3, Presented at TechShow 2002, Chicago, Illinois, March 16, 2002; see also
39. Lanctot, supra note 2, at 190-91; see Katy Ellen Deady, Note: Cyberadvice: The Ethical Implications of Giving Professional Advice over the Internet, 14 Geo. J. Legal Ethics 891, 900 (Spring 2001).
40. N.J. Sup. Ct. Comm. on Unauthorized Prac., Op. 17 (1994); Kan. Bar. Ass'n Comm. on Ethics/Advisory Servs., Op. 93-8 (1993); Utah St. Bar Ethics Advisory Opinion Comm., Op. 96-12 (1997).
41. Kan. Bar. Ass'n Comm. on Ethics/Advisory Servs., Op. 93-8 (1993).
42. Natacha D. Steimer, Note, Cyberlaw: Legal Malpractice in the Age of Online Lawyers, 63 Geo. Wash. L. Rev. 332, 347-48 (1995).
43. Florida Ethics Opinion 00-4, at 1 (July 15, 2000).
44. N.H. R. Prof'l Conduct 1.1(a).
45. N.H. R. Prof'l Conduct 1.1(c), ABA Model Code Comments ("Perhaps the most fundamental legal skill consists of determining what kind of legal problems a situation may involve...").
46. Lanctot, supra note 2, at 152.
47. See Michael Lewis, Faking It: The Internet Revolution Has Nothing to Do with the Nasdaq, New York Times Magazine (July 15, 2001). This is the story of 15 year old Marcus Arnold who rose to become the Number 1 ranked legal expert on the defunct legal expert web site, using the screen name "Lawguy1975." Marcus explained he picked up what he knew from watching Court TV shows and browsing the internet.
48. N.H. R. Prof'l Conduct 1.6
49. 8 WIGMORE, EVIDENCE 2292 (McNaughton rev. ed. 1961).
50. ABA Comm. on Ethics and Prof'l Responsibility, Formal Op. 99-413 (1999).
51. Id.
52. Id.
53. N.H. R. Prof'l Conduct 1.7.
54. N.H. R. Prof'l Conduct 1.9.
55. Hricik, supra note 39, at 1-2.
56. Arizona Ethics Opinion No. 97-04, at 4.
57. N.H. R. Prof'l Conduct 5.4(a).
58. N.H. R. Prof'l Conduct 5.4(b), (d).
59. ABA Model Code Comments to Rule 5.4
60. Rogers, supra note 5, at 13; Ohio Supreme Court Ethics Op. 99-9 (1999) (prohibiting a joint business effort between a lawyer and a nonlawyer to create online legal advice service).
61. N.H. R. Prof'l Conduct 5.5.
62. Rogers, supra note 5, at 10.
63. (web site visited April 14, 2002).

The Author

Attorney Jennifer P. Hopkins practices corporate and internet law with the firm of Orr & Reno, P.A., Concord, New Hampshire.

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