CHAPTER 8 NETHICS: LAWYERS IN CYBERSPACE

• Jurisdiction: United States

Ethics And Professional Responsibility In The New Millennium
(2000)
CHAPTER 8
NETHICS: LAWYERS IN CYBERSPACE^*
Lynn P. Hendrix
Phillip R. Clark
Ann E. Lane
Holme Roberts & Owen LLP
Denver, Colorado

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TABLE OF CONTENTS

SYNOPSIS

I. INTRODUCTION

II. THE INTERNET

A. What is the Internet?

B. Communicating on the Internet

III. NETHICS AND E-MAIL

A. E-Mail

1. Precautions

(a) Firewalls

(b) Passwords

(c) Encryption

2. Electronic Communications Privacy Act

B. Attorney-Client Privilege

1. Principles of the Attorney-Client Privilege

(a) Communication

(b) Between Attorney and Client

(c) Purpose of Obtaining or Providing Legal Assistance

(d) Confidence

2. Waiver of Privilege

C. Ethical Duty of Confidentiality

1. Principles of the Duty of Confidentiality

2. Breach of Duty

D. Opinions

1. Attorney-Client Privilege

2. Ethical Duty of Confidentiality

IV. NETHICS AND WEBSITES

A. Websites and Home Pages

B. Ethics and Advertising

1. Advertising and Websites

2. A.B.A. Model Rules and A.B.A. Model Code

(a) No False or Misleading Information

(b) Advertising

(c) Solicitation

(d) Fields of Practice and Specialization

(e) Trade Names, Firm Names and Letterheads

3. Jurisdictional Issues

4. Disclaimers

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V. ADDITIONAL NETHICAL CONSIDERATIONS

A. Chatrooms

B. Listserves and Direct Solicitations

C. Third Party Websites

1. Bar Association Website

2. Law Directories

3. Internet Referral Services

4. Plaintiff Websites

D. On-Line Data Backup

VI. CONCLUSION

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I. INTRODUCTION.

The information age has totally changed the way lawyers practice law. It was only a few years ago that lawyers were introduced to the Internet. At that time the Internet was a luxury; today it is a necessity. The use of the Internet by lawyers raises a number of ethical issues. These issues are not unique to the Internet, but the use of the Internet has resulted in many lawyers revisiting their ethical obligations and applying the ethical rules to this new form of technology.

The purpose of this paper is to discuss the use of the Internet and the ethical issues it raises. In doing so we will reference both the American Bar Association Model Rules of Professional Conduct (A.B.A. Model Rules),¹ and the American Bar Association Model Code of Professional Responsibility (A.B.A. Model Code).²

II. THE INTERNET.

The Internet makes communication and the exchange of information almost effortless. Not only can lawyers and clients communicate over the Internet, but entire documents can be sent quickly in a format that can be printed and modified by the recipient. It makes communication easier, and it saves time and expenses and is more efficient. Clients often demand its use and require lawyers to communicate and transmit documents via e-mail, rather than by facsimile, snail mail or courier services. Lawyers also use the Internet to provide information about themselves or their firms through websites. Additionally, lawyers often participate in listserves and chatrooms on topics relating to their practices. Each of these uses raises ethical issues.

A. What is the Internet?

The Internet is basically a giant network of computers which interconnects innumerable smaller groups of linked computer networks, and is in essence a network of networks.³ Obviously, not all networks are interconnected. Many networks are stand alone or "closed networks." Many networks are interconnected to other networks which are connected to other networks and so forth. These interconnected networks are referred to as the Internet.⁴

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Some of the computers that make up the Internet are owned by government and public institutions, some by nonprofit organizations and some are privately owned.⁵ The Internet is a decentralized, redundant, global system of communication, which is often referred to as "cyberspace."⁶ No person or entity administers the Internet, and there is no centralized storage location, control point or communication channel and it is impossible to determine the size of the Internet at any given moment.⁷ It would be impossible and technically infeasible for a single person or entity to control the Internet or the information sent thereon.⁸

B. Communicating on the Internet.

Methods of communication on the Internet generally fall into six categories: (i) one-to-one messaging, such as electronic mail or "e-mail"; (ii) one-to-many messaging, such as "listserve"; (iii) distributed message data bases, such as "USENET newsgroups"; (iv) real-time communications, such as "Internet Relay Chat"; (v) real-time remote computer utilization, such as "telnet"; and (vi) remote information retrieval, such as file transfer protocol or "ftp," "gopher," and the "World Wide Web."⁹ Most of these methods allow several types of transmissions; such as text, data, computer programs, sound, and visual images, including moving visual images.¹⁰

Messages between computers on the Internet do not necessarily travel entirely along the same path. Because the Internet is a redundant series of linked computers, messages can travel over any number of routes.¹¹ Internet communications use "packet switching" communication protocols that allow individual messages to be subdivided into smaller packets that are sent independently to the destination and are reassembled by the receiving computer. Usually all packets of a given message travel on the same path to the destination, but if computers along the same route become overloaded, some packets may be rerouted to lessloaded computers.¹²

III. NETHICS AND E-MAIL.

A. E-Mail.

Electronic mail, or e-mail, is an electronic message that is sent from one computer to another usually through a host computer on a network. E-mail is comparable to sending a first-class letter; you can address and transmit a message to one or more other people.¹³ E-mail on the Internet however, is not routed through a central control point and could take many different paths to the recipient.¹⁴ Generally, e-mail transmissions travel from computer to computer and network to network over land-line telephone lines. When an e-mail transmission reaches a computer, it is stored and then forwarded to the next computer until it reaches its final destination. An e-mail message at any of these intermediate computers can be read, analyzed, altered or blocked, all without indication to either the sending or receiving party and with no appreciable time delay.¹⁵ Accordingly, e-mail messages can exist on any number of computers, in memory, at any one time. Unlike postal mail however, e-mail generally is not sealed or secure and can be accessed or viewed on the intermediate computers unless the message is encrypted.¹⁶ In addition, the intermediate computers can be programmed to capture messages as they travel

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over the Internet (a process called "sniffing"), or programmed to trick the message into believing it is the recipient's host computer (a process called "spoofing").

1. Precautions.

There are a number of precautions that can be taken when using the Internet to communicate with or about clients or to transfer documents and confidential information. None of the precautions are infallible or provide absolute security.

(a) Firewalls.

A firewall is basically a defensive or protective device that restricts the flow of information between computer systems.¹⁷ Typically, a firewall is composed of software and hardware components that are installed at the point where a firm's network connects to the Internet. The principal function is to restrict parties outside the organization's network from obtaining access to the network.¹⁸

(b) Passwords.

Passwords are a unique string of characters that restrict access to a computer system or to programs or files within a computer system. A user types in the password, which acts as an identification code, and if the password is legitimate, the computer system allows the user to have access to the system or the program or file.¹⁹ Passwords can be programmed to allow varying degrees of security access.²⁰ Because passwords are usually limited in the number of characters, they provide only minimal protection.

(c) Encryption.

Messages can be encrypted so that only the intended addressee can view the message.²¹ Passwords and firewalls protect access, while encryption protects the transmission stream. Two general forms of encryption are in current use: "private key encryption" (also known as single key encryption) and "public key encryption." Each of these use so-called "keys," which are basically mathematical algorithms that factor large numbers. To unlock (or decrypt) a message that is locked (or encrypted), one must have the correct key.

Private key encryption requires the private exchange of a secret key and is often limited to closed environments involving a relatively small number of interacting parties. Encryption and decryption are performed using the same key and both the sender and receiver must share the same key.²²

The most common form of encryption used for Internet communications in current use is public key encryption. In public key encryption, there are two keys: a public key and a private key. The private key is held by the user and not disclosed to anyone else. The public key, a function of the private key, is disclosed publicly.

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If a person desires to send a private message to a receiver, the sender uses the public key belonging to the receiver to encrypt the message. Only the receiver can unlock (or decrypt) the message because the receiver is the only one having the receiver's private key. This provides security for the transmission from unwanted interception.

Conversely, a person can send a message encrypted with the sender's private key, and when the receiver decrypts the message with the sender's public key, the receiver knows that the message could...