Ethics & Technology
E-Lawyering: Briskly Dancing on a Fertile Field That's Full of Ethical Landmines
You can expand your practice and help the under-served, but the Web's not risk-free.
By Gary A. Munneke
FIFTY PERCENT of the people in America have at least one legal problem per year that they do not contact a lawyer about.
Many would-be clients earn decent money, yet the fees of traditional law firms are beyond their means except in catastrophic circumstances. They often are forced to proceed pro se to resolve problems, or to not deal with the legal issues at all.
Enter the Internet. Will it be a panacea for the routine legal problems? How will it change the way law is practiced? Will the Web allow lawyers to help the under-served, and still make money?
One thing's for sure: Internet practice is not simply traditional law practice online. While e-lawyering unquestionably will bring new opportunities, it is not without its ethical hazards.
Courts have ruled that self-help books on legal subjects are protected by the First Amendment. But the line between self-help and unauthorized practice of law (UPL) can be blurry at best.
Whether online information is viewed merely as electronic books, or as something more, is crucial. On the Internet, for example, visitors to a Web site can answer a series of queries that will lead them through a decision tree model that produces very specific information (or is at advice?). The same decision-tree approach allows the visitor to construct a document tailored to his or her specific needs (or was that document drafted?)
If the provision of this sort of information is constitutionally protected, then it is probably outside scope of unauthorized practice of law enforcement (see e.g., Parsons Communications, a.k.a. Quicken Family Lawyers v. Texas UPL Committee). This means that a software developer without a law degree can deliver an Internet product that competes directly with lawyers.
This, of course, raises problems. Because the software developer probably does not know the first thing about law, she will probably need to involve lawyers in the development of content for her Web site. These lawyers run the risk of dancing on a field of ethical landmines:
1. Assisting the unauthorized practice of law (the fact that the state will not prosecute the software developed may not prevent the grievance committee from going after the lawyers under a state's version of ABA Model Rule 5.5).
2. Sharing fees or forming a partnership with a non-lawyer (in violation of the state's version of ABA Model Rule 5.4).
3. Incurring civil liability for legal malpractice if the advice or documents prove wrong.
Even if lawyers build the Web site completely on their own, they may be at risk of liability in ways that the non-lawyer developer is not.
A second major element of online services involves what has come to be known as unbundling. In traditional legal services models, a client brings a legal problem to a lawyer for resolution. The lawyer undertakes the representation of the client with respect to the entire matter, which may in fact be a bundle of different, but related, services. Many law firms are experimenting with unbundled legal services already. For example, a firm may handle the trial of a case but not the appeal. Other firms help clients prepare document but to not file them; coach clients to represent themselves per se; make telephone inquiries involving disputes but do not file suit; conduct legal research on a single point and issue an opinion; etc.
Critics of the unbundling approach suggest that a lawyer cannot provide competent representation without addressing all the ramifications of a legal problem and exploring all options with the client. Although ABA Model Rule 1.2 (b) permits a lawyer to limit the scope of the representation, traditionalists fear that a client will be disserved by piecemeal services.
Supporters of unbundling argue that their services reduce the cost of legal assistance and make it available to those who would not otherwise use a lawyer. They also point out that in today's professional environment, people are driven by autonomy; they want to make decisions about how to handle their case; how to medicate their bodies; how to educate their children; how to buy their stocks; and how to control most aspects of their lives. Unbundling supports this empowerment.
The Internet makes it easy to unbundle. Visitors to a Web site can choose from a menu of products or services, and can peruse information before making a decision. Internet practice also removes "face time," one-on-one interaction between lawyer and client that arguably allows the lawyer to assess the nuances of a case. Although online dialogue is possible, the consumer would view that as just another option, and might not consult with the lawyer concerning alternative courses of action.
A third area of concern for Internet practitioners involves state-imposed jurisdictional limitations on the practice of law. Lawyers typically are licensed in one or two jurisdictions, almost never more than a few. In the physical world, the nexus between the location of the attorney and the client was simpler. Although a lawyer might telephone, fax, or FedEx legal material across state lines to a client in a jurisdiction in which he or she was not licensed, and although a law firm might have branch offices in several states, abuses could be adjudicated.
On the Internet, every lawyer with a Web site and a URL is accessible to anyone in the world. The lawyer may state that the Web site is only intended for use by residents of the state where the lawyer is licensed, or that information on the site is not legal advice at all, but the inescapable truth is that there are no boundaries in cyberspace. The bold truth: running a Web site may subject you to charges of UPL.
Yet, ironically, law firms that do not practice on the Internet may find their business eroded by those firms who take the risk.
Of course, there are other ethical issues that confront online lawyers: the pricing of fees; cyber-marketing; confidentiality issues; and conflicts of interests. Although such concerns are not reasons to abandon Internet services, they remind us that problems lurking in the wings represent very real problems that lawyers should consider.
There's an old proverb that says, "Crisis is danger, and opportunity." It no doubt applies to e-lawyering.
Generalists, who handle the most generic and routine matters, may feel the changes first. Routine work is most easily converted into a self-help product, sold electronically, and priced competitively. The overhead cost and practice inefficiencies of traditional law firms may make infeasible for them to compete for the low-end business. They will lack the brand identity or advertising clout to reach their markets even if they decide to go online themselves.
Yet Web tools may allow these same generalists to reach out and serve client who previously would not even consider hiring a lawyer. Generalists may be wise to become conversant, quickly, with the developing technology,to be able to take advantage of the tools rather than become defeated by them.
Litigators, whose physical presence in a courtroom is necessary, may believe smugly that they are immune, but they are not. The emergence on online dispute resolution mechanisms and per se representation (both of which are capable of deliver through online products), present genuine threats to traditional trial practice.
The question, particularly for those lawyers and firms most likely to be affected by e-lawyering practice, is not whether they should enter the electronic marketplace, but how and when. The paradox: In a revolution, the first ones through the door are usually shot, but that in the marketplace, the first ones in are usually the big winners.
Today, lawyers who jump into e-lawyering have the greatest potential and the largest risk. Those who wait may find that the risks are less, but that the Internet only gives them a means to hold their own. Those who ignore technology entirely are most likely to be swept away by the changes that are currently taking place.
Gary Munneke is a professor of law at Pace University School of Law, in White Plains, N.Y. A member of the LTN Editorial Advisory Board, he is immediate past chair of American Bar Association Law Practice Management section.