THE ALPS RISK MANAGEMENT REPORT

Lawyers on Line - Liability Issues in E-Lawyering: An Overview*
By Mark CS. Bassingthwaighte, JD.
mbass@alpsnet. com

A number of liability issues arise with the launching of a law firm web site. The degree to which these issues are a concern depends upon a number of variables including the presentation of the site, the emphasis of the site, the content and the degree of interactivity with visitors to the site. A clear and concise definition of all the exposures on the "net" is simply not possible for several reasons. The Internet is in a constant and quite rapid state of continuing development and there is little in the way of history to which one can turn to read the developed case law. Because of this, determining ways to limit exposure is problematic, but there are reasonable steps that can be taken.

The focus of these materials will be to identify possible sources of liability for the typical small to medium firm web site and make suggestions as to how to limit the exposure. Exposure and solutions will vary depending on the nature of the site and these differences will be discussed. My goal is to raise awareness about how liability might arise from a web site and to offer suggestions on site design to limit exposure. There is no one right solution and no definitive statement on where all exposures might arise, simply because the Internet is evolving and changing at such an incredible pace.

The Unintentional Creation of Attorney-Client Relationships

The Problem

Let's consider two extremes. The first example is a web site that is static, the purpose of which is to be primarily the virtual equivalent of a Yellow Page ad. The appropriate disclaimer', which states that an attomey-client relationship can not be created by visiting this site, is clearly presented on the home page and not hidden behind a disclaimer hyperlink. The only information presented on the site is a brief history of the firm, attorney resumes, firm location and phone numbers and an e-mail hyperlink to a firm address only.

The second example is in essence the opposite of the first. The site is dynamic and its focus is to attract clients to the firm by offering free online consultations. In addition to providing all of the information found at the site of the first example, this firm has a highly visible flashing banner that states "Click here for a $20 online consultation. " There are no disclaimers on the site. All e-mail hyperlinks located on the site (and there are several pages where these links appear), go directly to an individual attorney's address.

With these two examples in mind, now ask the following question. Does the submission of a legal question via4e e-mail hyperlink from the site and a response by attorney create an attorney-client relationship? The answer is not clear but the line that must be crossed that will likely lead to the creation of an attorney-client relationship, in all likelihood, falls somewhere between these two extremes. The thinking is that the individual who submits the question has manifested intent to receive legal services, the attorney has manifested intent by answering the question and the attorney knew or should have known that the advice would be relied upon. ii

Exactly where this line is drawn is somewhat of a concern. Altering example two just a bit exemplifies the concerns. Suppose example two is changed to "free online consultation." In either situation, free or $20 consultation, suppose a question is submitted but the question is never acknowledged or responded to and a statute of limitations expires. Many sites receive minimal traffic or a firm will have an attorney who doesn't regularly check for e-mail. Overlooking e-mail is not a remote possibility. Will liability be found to exist in either of these situations? It would seem certainly possible in both situations. Will disclaimers cut off this liability? Disclaimers can easily be avoided or left unread by the individual and the attorney's actions can be inconsistent with the disclaimer, so the answer could easily be no.

Concerns and Solutions

If questions are going to be encouraged on the site and a fee collected, a disclaimer will likely be completely ineffective, as attorney actions are inconsistent with a disclaimer that states an attorney-client relationship cannot be formed. One solution would be to require that before a question is submitted, the client must agree to the terms of a click-wrap agreement"' that clearly sets forth the terms of the limited engagement and definitively limits the scope of representation to a question and response.

If the decision were to answer questions for free, site presentation would seem to become important. There is a difference between a scrolling banner stating "Free Online Consultations" and simply direct hyperlinks to individual attorneys. The degree to which the site manifests an intent and/or the attorney manifests an intent to create an attorney-client relationship in responding to inquiries is likely to be determinative in liability for bad advice. Depending on the "marketing aggressiveness" of the site a similar click-wrap agreement may be in order. In situations where the site is toned down, clear and prominent disclaimers may be sufficient. These disclaimers should never be hidden behind a disclaimer hyperlink. Another option is to require any visitor to go through a click-wrap agreement to simply document acceptance of the terms of the disclaimer as well as that the disclaimer has been read.

Conflicts of interest are a related concern. When questions come into the firm the individual often details the facts of their specific situation. When these e-mails come directly to the attorney, regardless of the creation of an, attorney-client relationship, should this information be tracked in a conflict database? I can easily foresee clients trying to conflict a competent opposing attorney out o the case simply by asking general questions about the specific case via e-mail with opposing counsel hoping to force a withdrawal. Is this far fetched? Many law firm web sites fail to ask for name and address of the individuals submitting the e-mail. How would the firm ever be able to prevent this from happening? Add to this the real possibility of questions coming into the firm from jurisdictions in which no attorney is licensed to practice. In this situation the response from the attorney may be viewed as the unauthorized practice of law, particularly when the advice given was completely inappropriate for that jurisdiction and a claim is presented.

In light of these possibilities alone, the web site should have language present at the attorney e-mail hyperlink/s specifically stating that no e-mail will be reviewed or responded to unless the individual has submitted his/her name and address. A state-of-the-art conflicts check requires that the firm only obtain the names of all parties involved in the matter and the type of matter at issue at first contact and nothing else. Contacts from the Internet need not alter this approach. The reality is, however, that many firms do not conduct the conflicts check at this level and do routinely allow for the presentation by the individual of their legal concern. Given this reality these contacts must be tracked in the database regardless of the creation of an attorney-client relationship, meaning declinations as well. Just as one party to a divorce has been known to try to taint every firm in a given area via phone contact, the Internet can be similarly used.

One alternative to tracking these contacts, given the potentially large numbers of names that could be involved here, is to allow for general inquiries only and have all web site traffic sent to a firm e-mail address only. Individual attorney e-mail addresses can still be used with current clients, however all general advertising would only list the firm e-mail address. Firms who do not wish to have legal questions coming to the firm often use this approach. Language detailing the firm's decision to not accept questions from the general public should be clearly posted at the e-mail hyperlink. If this approach is taken with the site, be careful to make certain that other Internet referral sources only list the firm e-mail address as well. A common mistake is providing Martindale-Hubbell with individual attorney e-mail addresses and not stopping to think that legal questions could be presented to the firm as the general public visits the Martindale-Hubbell site.

There are a few general web site based e-mail concerns. The number of names that would need to be tracked in a conflicts database could be very high. This would be particularly true if one or more attorneys participate in a list service group or Usenet group for the purpose of indirect client screening for prospective clients or if the site becomes a real marketing success. This situation would necessitate the use of a computerized conflicts checking program. If no computerized system is in place, this upgrade should be done.

Giving advice in a vacuum is never wise and the limited information provided in e-mails makes this a mistake that can occur far too easily. With phones the attorney has the ability to ask questions and there is much more control over what information is provided. If the decision is to answer legal questions from web-site directed traffic, consider waiting 24 hours before responding. Take the time to consider if additional information is needed, to decide what qualifications should be included and to think through the answer.LAdvice given on the fly can too easily miss the mark.

The larger a firm becomes the greater the possibility that there is an attorney who fails to utilize the technology and thus never checks for e-mail. If questions from the site are encouraged, every attorney must routinely review their incoming e-mail. The possibility of a statute getting blown while an individual waits for a response to her submitted question, particularly in the absence of a thorough disclaimer on the site, could be a real problem.

Site content may also create liability. General advice given in a FAQ format or through the presentation of articles written by firm attorneys may lead to trouble depending on the nature of the
site. The more "aggressive" the site is from a marketing perspective (coupled with an absence of disclaimers) the greater the risk of liability. Disclaimers should effectively deal with most concerns, again if prominently displayed. The disclaimer should clearly state that the information is general in nature and not intended to address any specific legal concern, and that individuals seeking advice should retain the services of an attorney. If the firm is charging for the answers given in response to legal questions submitted from the site, the firm is clearly conducting business on the web, and in this instance perhaps insurance coverage would be a prudent additional step to take. Traditional commercial general liability policies will not provide coverage for this. Instead, a comprehensive media liability insurance policy specifically designed to cover exposures that arise out of web sites and e-mails would be necessary.

Next month we will publish the remainder of this article, which discusses Internet advertising concerns and general web page risks.

i For sample disclaimer language that would be appropriate for web sites, e-mail, list services and newsletters, see Lawyers Weekly USA (97 LWUSA 717) These disclaimers were written by Peter Krakaur, a San Francisco lawyer and president of Internet Legal Services, an 'Internet consulting company for lawyers.
i i For a detailed discussion of these ideas see Lanctot, Catherine J. "Attorney-Client Relationships in cyberspace: The Peril and the Promise, " 49 Duke L.J. 147.
iii A click-wrap agreement typically is used to specify the terms and conditions that apply to the purchase of the product or service from the web site. The buyer will explicitly assent to the terms by clicking on an "I agree" button after having the opportunity to review the terms. Be aware that these agreements may not be enforceable if the terms are too overbearing or harsh.

*Editor's Note: This article was prepared for the American Bar Association to use in its Fall 2000 National Legal Malpractice Conference Proceedings. The ABA agreed to let ALPS use this article in this risk management publication.

About the Author

Mr. Massingthwaighte is a Regional Risk Manager with the Attorneys Liability Protection Society (ALPS).