Ethics Advisory Opinion 94-27

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 94-27

Attorney with a physical disability wishes to approach one or more on-line services about the feasibility of setting up an electronic law office for the purpose of providing legal information and advice to persons across the United States. There is no such service available at this time via electronic media.

Question:
Would such a service violate the South Carolina Rules of Professional Conduct? If such a service is ethical, what limitations and conditions would apply?

Summary:
Participation on general discussions on legal topics via electronic media is permissible. However, the practice of law via electronic media creates several issues that may violate the South Carolina Rules of Professional Conduct.

Opinion:
Several of the South Carolina Rules of Professional Conduct are implicated by the factual scenario set forth.

The question presents two distinct scenarios which must be analyzed. The first is the providing of legal information generally, such as through participation in educational and informational programs. The second is the representation of clients via the electronic media.

To the extent that the attorney maintains a presence on electronic media solely for the purpose of discussing legal topics generally, without the giving of advice or the representation of any particular client, this practice would be permitted. The committee has previously discussed similar issues in Advisory Opinions 90-37, in which the committee opined that a lawyer could furnish general legal information to members of the public through educational seminars, provided the information provided does not contain any false or misleading information. Rule 7.3. Similarly, in Advisory Opinion 91-04, the committee stated that participation in legal education programs and the provision of materials to members of the public in connection with an educational program is permitted.

Other jurisdictions have similarly recognized that the participation in educational seminars, newspaper columns, and radio shows for members of the public generally, which do not provide specific legal advice to individuals, are permissible. Rhode Island Ethics Advisory Opinion No. 93-9 (newspaper advice column on law-related topics); Oregon Advisory Opinion No. 1991-107 (distribution of audio or video tapes to members of the public which provide general legal information is not the practice of law and does not violate the model rules); Iowa Advisory Opinion No. 91-16 (a lawyer may participate in a local estate planning group and be included in a list of sponsors of the event which is publicized in brochures mailed to the public); Illinois Advisory Opinion No. 94-4 (law firm may participate with health care organization in distributing brochures discussing living wills and powers of attorney).

The attorney also seeks an opinion on the propriety of representing clients exclusively through contacts from the on- line service. The operation of a law office via electronic media does not, in itself, violate any provision of the rules. However, the manner in which the practice of law occurs raises several issues of concern.

The attorney is subject to restrictions set forth in Rule 7.1, 7.2 and 7.3 regarding communication, advertising of services, and direct contact with prospective clients. Since a public advertisement on electronic media is necessarily available to a universal audience, the attorney will be placing advertising designed to reach potential clients in jurisdictions in which he is not admitted to practice. Under Rule 7.2(a), any notice or advertisement disseminated public media must clearly identify the geographic limitations of the lawyer's practice, so that it is clear that he may not practice law except in those states in which is he admitted to practice. Otherwise, the advertisement will "omit a fact necessary to make the statement considered as a whole not materially misleading." Rule 7.1(a).

The attorney must obtain sufficient information to identify his client in order to make a complete conflicts inquiry. He should also consider the provisions of Rule 3.6 regarding trial publicity.

The attorney must consider his ability to engage in privileged communications with his client via electronic media. Even assuming that such communications occurred through private electronic mail rather than through public notices on electronic bulletin boards, the very nature of on-line services is such that the system operators of the on-line service may gain access to all communications that occur on the on-line service. Thus, the confidentiality requirements of Rule 1.6 are implicated by any confidential communication which occurs across electronic media, absent an express waiver by the client.

While no authorities directly on point have been located, the committee finds that prior discussions of confidential communications via cellular telephone have applicability here by way of analogy. The Ethics Advisory Committees of at least three jurisdictions have stated that a lawyer should not use a cellular telephone to discuss confidential information with clients, absent informed client consent, where there is a risk the conversations may be overheard. Massachusetts Advisory Opinion 94-5; New York City Advisory Opinion No.

1994-11; New Hampshire Advisory Opinion No. 1991-92/6 (this opinion suggests that confidential communications via cellular telephone with a client may be permissible if a scrambler of similar device is used.) Thus, it is the opinion of the committee that unless certainty can be obtained regarding the confidentiality of communications via electronic media, that representation of a client, or communication with a client, via electronic media, may violate Rule l.6, absent an express waiver by the client.