(This article appeared in Journal 27,2, Summer 2022)
The Ethics Committee published its first formal ethics opinion pertaining to the internet in 1996. In RPC 239 (October 18, 1996), the Ethics Committee addressed the propriety of a law firm having its own website. RPC 239 boldly states that it is permissible for a lawyer to display information about his legal services on “a site on the World Wide Web which can be accessed via the Internet, a global network of interconnected computers.”
In 1996, the predominant ethical issue pertaining to internet advertising was the permissible content on law firm websites. Recent inquires, however, have more to do with the use of intermediary advertising platforms than the content of the law firm’s website. These inquiries lead to the unique situation of ethics counsel trying to understand and evaluate complex operations of nonlegal entities, while acknowledging that the State Bar’s authority is limited to regulating a lawyer’s participation in internet advertising programs and not the advertising platforms themselves. Furthermore, the Bar does not want to discourage the development of internet platforms that increase or simplify the public’s access to legal services. Finally, opining on internet advertising platforms is problematic because internet advertising programs tend to appear, evolve, and then disappear at a rapid rate, thus leading to the possibility of a formal ethics opinion becoming moot even before the ink is dry.
For these reasons, the Ethics Committee has been hesitant to formally opine on specific internet advertising platforms. Nonetheless, in a good faith effort to provide guidance to the bar, and in deference to the importance of confidentiality in the legal profession, the Ethics Committee published Proposed 2021 FEO 5 (Lawyer Participation in Pay-Per-Lead Advertising Program). The feature of the advertising program that resulted in the inquiry to the Ethics Committee was the recording and retention of potential client communications by the advertising platform company. In addition, the communications could be disclosed to third parties subject to the company’s privacy policies. Concern as to the vulnerability of possibly confidential information relating to a legal matter motivated the Ethics Committee to opine on the advertising program. Proposed 2021 FEO 5 concluded that the structure of the advertising program renders a lawyer’s participation in it prejudicial to the administration of justice in violation of Rule 8.4(d) because the structure does not comply with a person’s reasonable and historic expectations of privacy and exclusivity in communicating with a lawyer. Moreover, the structure allows important client information to be vulnerable to unauthorized and potentially harmful disclosure.
After the proposed opinion was published for comment, members of the bar criticized the proposed opinion’s conclusion. There was a general theme throughout the comments that today’s consumers know and understand that nothing is really private on the internet—consumers are aware their communications are being monitored to some extent. In addition, we received criticism that the privacy policy that governs the recordings at issue (allowing disclosure of recordings to certain third parties) are indistinguishable from the privacy policies of communications that are retained by numerous other internet services and applications. Therefore, prohibiting law firms from participating in this advertising program would also prohibit lawyers from using these other internet services and applications, which would ultimately do more harm to the administration of justice than good—specifically regarding the accessibility of legal services to the public. Similarly, some criticisms suggested that substantial technical questions needed to be answered about the advertising program and how it is similar to other widely used technologies before the Ethics Committee issued an opinion on the matter. Other comments suggested that the proposed opinion goes too far in applying a lawyer’s duty of confidentiality to individuals who are not current or prospective clients.
Ethics staff at the State Bar is appreciative of the thoughtful feedback received on the proposed opinion. Indeed, such engagement is an important and valuable part of self-regulation. A review of these thoughtful comments led the Ethics Committee to conclude that the recordings at issue are not uniquely vulnerable to harmful third-party disclosures, and that adopting a specific ethics opinion related to this particular advertising platform would not benefit the legal profession or the consumers of legal services. Therefore, at its meeting in April 2022, the Ethics Committee withdrew Proposed 2021 FEO 5.
However, lawyers are reminded of their duty to make reasonable investigations into any advertising program—or technology service—before deciding whether to participate in the program or utilize the technology. (See the discussions set out in 2008 FEO 5, Web-Based Management of Client Records, and 2011 FEO 6 regarding SAAS providers storing confidential client information). A lawyer should evaluate the vendor’s experience, stability, and reputation; evaluate the vendor’s measures for safeguarding the security and confidentiality of stored information; confirm the vendor’s compliance with privacy laws such as the Stored Communications Act (18 U.S.C. §§ 2701-2713); perform “due diligence” as to operation and privacy policies of the particular vendor program; educate law firm employees on proper law firm procedures relating to the program; and continue to monitor evolution of the vendor and the particular service to ensure compliance with applicable laws and the Rules of Professional Conduct.
Specifically in relation to the use of intermediary services,1 lawyers need to remember that the duty of confidentiality set out in the Rules of Professional Conduct only applies in the context of an attorney-client relationship. Internet advertising programs have significantly blurred the line between a potential client and a prospective client. Therefore, when using intermediary advertising programs or initial intake services, a lawyer should take steps to ensure that a potential client does not inadvertently turn into a prospective client to which the duties set out in Rule 1.18 apply. A person becomes a prospective client by consulting with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter. As stated in comment [2] to Rule 1.18:
[A] consultation is likely to have occurred if a lawyer, either in person or through the lawyer’s advertising in any medium, specifically requests or invites the submission of information about a potential representation without clear and reasonably understandable warnings and cautionary statements that limit the lawyer’s obligations, and a person provides information in response. In such a situation, to avoid the creation of a duty to the person under this Rule, a lawyer has an affirmative obligation to warn the person that a communication with the lawyer will not create a client-lawyer relationship and information conveyed to the lawyer will not be confidential or privileged. See also comment [4].
If employees are properly educated, appointment-setting phone calls should neither create a reasonable expectation of privacy nor delve into information beyond what is necessary to avoid conflicts of interest. Comment [4] to Rule 1.18 provides that, to avoid acquiring disqualifying information from a prospective client, “a lawyer considering whether or not to undertake a new matter should limit the initial consultation to only such information as reasonably appears necessary for that purpose.”
In addition, the responsibility to warn the person that a communication with the law firm will not create a client-lawyer relationship and that information conveyed to the lawyer will not be confidential or privileged will often fall on nonlawyer employees. The lawyer must ensure that these employees provide the necessary disclosures and obtain the necessary consent. See Rule 5.3. For example, lawyers may want to instruct employees who answer calls forwarded by an intermediary advertising program to instruct the potential client in the following fashion:
Because you called us by clicking on an advertisement, the advertising company is able to record this call and anything you say will not be confidential. But if you will give me your phone number, I will be happy to call you back on a private line.
We’ve come a long way since opining on a lawyer’s mere presence on the “World Wide Web.” As technology advances, services never thought possible become our reality (and the bane of ethics staff’s existence). Though it may seem difficult to keep up, lawyers have a duty to remain technologically competent. See Rule 1.1, cmt. [8]. And from both an ethical and practical perspective, a good rule of thumb is that, like most things, if you’re going to use something, you better know what it does. n
Endnote
1. Lawyers should also review new Rule 7.4 addressing a lawyer’s participation in intermediary organizations.