The Increasing Use of the Internet in the Practice of Law: Concerns and Fears Answered
| Publication year | 2000 |
| Pages | 1 |
| Citation | Vol. 69 No. 02 Pg. 1 |
69 J. Kan. Bar Assn. February, 1 (2000). THE INCREASING USE OF THE INTERNET IN THE PRACTICE OF LAW: CONCERNS AND FEARS ANSWERED
Vol. 69, February, 2000
I. Introduction
The use of technology in the practice of law has increased rapidly over the past decade. The Internet has become a valuable research tool; on-line services, such as Westlaw and Lexis, have increased productivity; faxes have decreased communication time; and electronic mail (e-mail) promises to enhance communication capabilities with clients, courts and other attorneys.(fn1)
This use of new ideas and machines in the practice of law has given rise to old fears regarding the ability of lawyers to stay within their ethical limits.(fn2) E-mail, fax machines and the Internet can be very powerful tools to communicate with and market a lawyer's services to others. Fax machines have become a necessary element to the practice of law, with most offices having at least one machine with a dedicated phone line. The speed and efficiency of these tools greatly increases a lawyer's productivity, enabling her to accomplish more in less time. However, the use of these tools also reveals a double-edged sword.
These same technologies that increase an attorney's most precious resource, time, also enables others (senior partners, clients, courts and other attorneys) to demand more from that time. This naturally creates stress, which can lead to carelessness.(fn3) Fax numbers can be mistakenly sent to the wrong "speed dial" group.(fn4) A hurried "point and click" can send a sensitive e-mail to an opponent, rather than to co-counsel.(fn5) A rapid response to a fairly anonymous e-mail with a simple question could lead to the unauthorized practice of law in another state.(fn6) A simple web page for a law firm may result in sanctions for not following the rules of advertising contained within the Kansas Rules of Professional Conduct.(fn7)
The purpose of this article is to identify the potential problems and pitfalls that exist when using novel technological tools. Some of these problems have previously been identified and examined by various commentators.(fn8) Section II will apply the attorney-client privilege to the use of e-mail. Section II will also identify several state bar association opinions that address this issue, along with the rationale for their ultimate decisions. Section III will discuss general Internet concerns, including advertising, solicitation, the unauthorized practice of law and user agreement contracts. Finally, solutions, both obvious and obscure, will be offered in section IV to help an attorney avoid the identified problems.
While this article is unable to address all of the contemporary concerns that come with the use of this and other technology, it will give the practicing attorney guidance on how to conduct business on the Internet. While no firm solution or decision is available on some of the newer concerns, the first step should always be to identify any potential problems that may exist.
II. The Use of E-Mail
Obviously, the concept of facsimile messages and electronic mail can fit within the definition of attorney-client privileged material.(fn9) Each of these media enable persons to communicate; that is their purpose. Should an attorney write a letter to her client which contains advice about a certain legal issue and send it, either by U.S. Post Office, e-mail or facsimile, there is no doubt that such message would fit within the definition of potentially privileged information. However, it is not the content of the message at issue when using novel forms of communication, but the mode in which they are conveyed.
The possibility that a confidential communication may be revealed when using novel forms of communication does not mean that their use should be prohibited. The most basic form of conveying privileged and confidential communications, oral conversation between the attorney and client in the attorney's office, is not infallible.(fn10) Proper precautions in the office, as well as on the computer, are necessary to protect the privilege.(fn11) In other words, an attorney cannot ignore the very real possibility of eavesdroppers, whether they are in the hallway or on a computer halfway around the world.(fn12) Consequently, the use of a powerful tool of communication such as the Internet should not be prohibited, but understood and properly used.(fn13)
E-mail is a relatively new phenomenon, at least to the public.(fn14) Basically, e-mail is very similar to regular mail, its purpose is to transfer written ideas from person to person. Instead of a message written on paper, however, e-mail transfers textual messages, images or computer files digitally through land-based telephone lines. Like regular mail sent through the post office, senders and receivers of e-mail have addresses. These addresses can be across the hall, across town, across the country or across the world. Unlike traditional mail or even mail sent by a private service, such as Federal Express, an e-mail user can send information to any address almost instantaneously, no matter where that address is located.
E-mail utilizes networks of computers in order to function. At least two computers are necessary to send and receive e-mail, although a myriad of computers are usually involved. Many law firms use an internal network of computers to handle their office computer systems. This type of network is self-contained and may only link to other computers in the office. For example, an attorney generates a file in her word processor and saves it to the office network "server," or main computer. After saving that file, any other attorney, secretary, clerk or paralegal in the office can access that file.(fn15) Outside the office, however, the file is inaccessible.(fn16)
The Internet is the world's largest network of computers.(fn17) It is estimated that 135 million people will use the Internet by 2001.(fn18) Just like in the office environment, everyone on the Internet is connected to each other. Instead of one main computer in the office, usually called a "server," the Internet connects many different, decentralized, servers. Each of these servers remains connected to other Internet servers twenty-four hours a day, thus forming a network. Users of the Internet are typically connected through their local office network to the Internet.(fn19)
Similar to the office network, the Internet allows users to share files in the form of Internet Web pages. A user of the Internet can save a file to their server, which can be accessed by any other user on the Internet. E-mail provides a means for users of the Internet to send files privately to another Internet user. However, the degree of privacy when sending e-mail messages has been questioned, and even likened to the sending of post cards in the mail.(fn20)
To understand this problem, the user must first understand the way e-mail is transferred. When a person creates a message that is to be sent by e-mail, the message is saved as a file, or a bundle of digital information.(fn21) That information, when sent, can be accessed without much difficulty by the person to whom it is sent. However, because e-mail passes through at least one, but probably several, servers, each stopping point for the mail is a point where a person can access that file and read its contents.(fn22) It is this perceived accessibility that attorneys fear, and has caused concern within the profession about keeping attorney-client privileged communications confidential.(fn23)
Several states' bar associations or ethics advisory panels have addressed the issue of e-mail confidentiality.(fn24) While most of these decisions have allowed the continued transmission of e-mail as a protected form of communication, they have also been generally suspicious of e-mail. The Iowa Supreme Court Board of Professional Ethics and Conduct issued the decision most critical of e-mail's use in 1996.(fn25) In that decision, the board decided that the communication of "sensitive" information could not be transmitted via e-mail unless the message was itself encrypted or the attorney had the client's consent to send un-encrypted e-mail.(fn26) It is unclear, however, whether the board fully understood the technology associated with e-mail communication.(fn27)
Pennsylvania's Bar Association Committee on Legal Ethics and Professional Responsibility crafted a different view of e-mail communications.(fn28) In its opinion, the Committee recognized that "e-mail does not appear to differ materially from current means of communication employed by lawyers to the extent that a new set of rules is required, or such that its use should be discouraged."(fn29) Intentional interception has been the most commonly identified risk of e-mail transmission, but this risk has only been identified anecdotally. Thus, the Committee focused on whether to encrypt e-mail when communicating with clients or other lawyers.(fn30)
The Pennsylvania Committee echoed most other ethics opinions by not requiring encryption except in the most sensitive of situations.(fn31) The Committee first recognized that the threat of inadvertent or intentional interception of an e-mail communication does not appear to be any greater than when using telephones, cellular phones or facsimile machines.(fn32) Second, the Committee recognized that little-to-no harm would come from the inadvertent or intentional disclosure of the typical e-mail message.(fn33) Third, the Committee asserted that encryption is not readily available, nor is it easy to use.(fn34) Additionally, the interception of electronic communications is federally prohibited.(fn35)
Always a good idea in any questionable situation, the...
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