The Internet legal market exposes ethical pitfalls for lawyers. Legal providers increasingly reach consumers online in response to a growing need for affordable legal assistance and the availability of technology that effectively meets that demand. Online legal assistance poses problems for customers who are unable to decipher quality and authorship amongst the myriad legal sources. Today, many legal website providers are not licensed attorneys. In addition, state rules conflict and do not address changes in technology; thus, lawyers struggle to meet ethical obligations relating to advertising and solicitation, legal website specifications, the unauthorized practice of law, and attorney-client relationships.
Many in the legal field have called for a national standard, rather than state or local standards, to govern legal websites and providers. This consistency would theoretically allow lawyers to meet their ethical requirements and, in turn, improve the quality and currency of legal websites for the public.1 The American Bar Association ("ABA") recently developed and adopted "Best Practice Guidelines for Legal Information Web Site Providers" ("Guidelines").2 The Guidelines seek to inform website developers of best practices so that users will not be misled.3 The Guidelines may serve as the first answer to the request for a national standard; while they require improvement, they offer useful instruction for the legal community. Most importantly, the Guidelines encourage practitioners to consider ethics and be deliberate in the way they create and maintain websites.4
For the most part, members of the legal community have never heard of the Guidelines, nor have they adopted them in their website development.5 A brief survey considered whether practitioners' websites include features consistent with best practices (as articulated by the Guidelines), even if by happenstance.6 The survey found that website providers did display some of those basic features, which may have ameliorated confusion among consumers.7 However, many websites failed to provide clear jurisdictional or dating information, and providers were unaware of consumer confusion and how to address it.
I. BACKGROUND: THE GROWTH OF LEGAL WEBSITES
Legal websites abound. An increasing need for accessible, low-cost legal services intersected with the development of affordable online technologies that address the unmet legal needs of the community. Many low to middle-income people without sufficient means cannot access the legal care they need; nearly two-thirds of Americans with legal problems ignore the matter or attempt to resolve it without a lawyer's advice.8 Others seek cheaper, more accessible options for routine legal matters such as adoptions, divorces, taxes, and wills.9 Increasingly, dedicated legal websites capitalize on this growing market demand by providing a low-cost alternative for millions of financially restricted or cost-conscious consumers.10 Lawyers recognize not only the advantages of reaching a wider economic base but also the cost savings through online marketing, communication with potential and existing clients, and information dissemination.11
As enabling technologies continue to develop, the list of online legal tools and features grows. Currently, legal websites exhibit a range of features including: legal information relating to industry developments, firm capabilities, clients, and practice areas; interactive bulletin boards and chat rooms; bids for legal services; automated client intake; online legal advice; client libraries; online form preparation; solicitations; transmission and dissemination of files; case status updating; and extranets.12 Online consumers can now settle insurance disputes with minimal attorney assistance, at any time of the day, from any location, using automated websites that match settlement offers from each side.13
Based on these features, legal websites fall along a spectrum of interaction, fitting into three categories: "passive websites," "websites in the mid range," and "interactive websites with commercial activities."14 Courts apply this spectrum framework in analyzing whether a lawyer has engaged in the unauthorized practice of law via a website or online medium.15 Each category reaches a particular audience and carries distinct ethical and practical challenges for legal website providers and consumers. This demarcation is critical; consumers must be able to distinguish accessing legal information from receiving legal advice particular to their facts and circumstances.
In addition to new technologies, the growing range of legal providers complicates the online legal landscape. Traditional large law firms constitute only a portion of the online resources; government departments, public interest attorneys, sole practitioners, and non-lawyers in a variety of settings maintain legal websites. Of these providers, non-lawyers who offer legal information pose a new dynamic. Many consumers are drawn to online legal services because they do not trust the legal system and would not retain counsel otherwise.16 For some legal issues, non-lawyers with websites offer an adequate, more affordable option for this market segment.17 Despite the convenience of new technologies and providers, consumers encounter new obstacles. Today, legal websites reach people of varying economic status, awareness, and sophistication, all over the country and globe, and at all hours.18 This broad range of consumers may find difficulty in deciphering quality and authorship among the endless legal information available.19 Additionally, licensed attorneys ideally follow the profession's self-imposed regulations;20 thus, when non-lawyers dispense problematic legal advice, recourse and regulation is less clear.
Even for lawyers, regulation cannot keep pace with online development.21 Ethics regulation poorly matches ever-changing technology and the Internet's lack of temporal or spatial boundaries.22 Because rules vary across jurisdictions, the Internet's global scope often subjects lawyers to local, national, and international ethics rules in conflicting ways and without their knowledge.23 Compliance becomes impossible. Ethical issues facing attorneys include ambiguity over the establishment of an attorney-client relationship, whether legal advertising is considered solicitation, the unauthorized practice of law, confusion over competence and duty to inform, complications with confidentiality and conflicts of interest, and dilemmas over legal fees and duties to prospective clients.24 For example, a sole practitioner based in one state may unwittingly establish an attorney-client relationship via an online chat room exchange with a curious website guest who sits across the country (or the world). In addition to invoking potential confidentiality, conflicts of interest, and advertising and solicitation violations, this relationship may also be a violation of specific website regulation in several states.25
Attorneys must understand and meet their ethical obligations in delivering online legal information while still satisfying the needs of the community. Confusion among lawyers ties to consumers' difficulties; as lawyers better understand their ethical obligations regarding legal websites, consumer awareness and the quality of service will improve.
II. CONSIDERING THE ABA's GUIDELINES FOR LEGAL WEBSITE PROVIDERS
A. THEGUIDELINES
In February 2003, the ABA developed and adopted guidelines entitled "Best Practice Guidelines for Legal Information Web Site Providers."26 The goal of the Guidelines is "to promote the development of quality legal web sites and to provide guidance to legal web site developers" regarding best practices so that "users will be less likely to be misled."27 The Guidelines' scope encompasses legal information only, not legal advice or interactive features.28 Legal advice is defined as "recommendations tailored to the unique facts of a particular person's circumstances," not general or static legal knowledge.29 In summary, the Guidelines present ten conventions for developing and maintaining websites to enable a user to determine authorship, currency, and timeliness, the relevant jurisdiction, and the scope and limits of the information. The Guidelines read:
1. Contact Information-A web site providing legal information should provide full and accurate information on the identity and contact details of the provider of the site. The person(s) or organization(s) responsible for the information on a site is (are) clearly indicated on all pages of the site. Providers should include full contact details, including name, mailing address, telephone, and/or e-mail address.
2. Dating Material-Web site providers should include information about the dates on which the substantive content on their sites was prepared or last reviewed.
