The ABA has published a short description of its efforts to examine the impact of technology, including cloud computing & SaaS, social media and websites, and has released a new ethics opinion related to attorney websites.
Last week I wrote a post about the Commission’s call for comments related to cloud computing and protecting client confidences. On October 14th, they will hold a public hearing to gather information from interested individuals and entities on the subject.
The ABA’s review of technology in law practice management is being conducted through the ABA Commission on Ethics 20/20 created in 2009 by then ABA President Carolyn Lamm. One goal of the commission is to review the ABA Model Rules of Professional Conduct to see if revisions are needed given the changes that technology has brought to the practice of law. Part of this review also involves an examination of the regulation of attorneys in our country and how the current system may or may not be working well given the increase in globalization of law firms, outsourcing trends and the use of technology to facilitate these practices.
More recently, the ABA has released a new ethics opinion pertaining to attorney websites. The opinion was issued on August 5 of this year, but has only now been posted online. Formal Opinion 10-457 covers the use of a website by an attorney as a way to communicate with prospective clients. The question of whether the website creates a prospective attorney/client relationship is the key focus calling into play Model Rule 1.18 (protecting confidentiality of the prospective atty/client relationship). This pertains mostly to websites that invite inquiry, such as law firm websites with “contact us” email-based forms or “click here for a free consultation” that prompts the prospective client to engage with the firm through the website. When the firm responds to this inquiry, then according to ethics opinion 10-457, Rule 1.18 kicks in.
This opinion does not address the use of a client portal through a law firm website – the key feature of virtual law practice. That’s because it doesn’t need to. The client portal is different than collecting prospective client information online. It involves the registration of the prospective client and the immediate (often initially automated) response from the law firm which begins the “discussion” described in Rule 1.18. This makes the interaction between the prospective client and attorney through that virtual law office client portal a protected, confidential communication.
Some state bars have suggested in their ethics opinions that websites contain click through or pop-up disclaimers on attorney websites to let the public know that there should be no expectation of an attorney/client relationship through the use of the site. The new opinion references ethics ops from Virginia and D.C. , but I also wrote about another proposed pop-up requirement for Florida attorney webistes here.
The ABA is hosting a webinar about the new ethics opinion on November 2nd entitled “Lawyer Websites: Ethical Traps and How to Avoid Them.” It is sponsored by the ABA Center for Professional Responsibility and the ABA Center for Contintuing Legal Education and includes two of the individuals involved in the committee that wrote the opinion.