Duties to Prospective Clients (Model Rule 1.18) and Scope of Representation (Model Rule 1.2)

Model Rules 1.18 and 1.2 come into play with client intake or “contact us” forms on firm Web sites, when communicating with prospective clients through cloud-based

17 _{See http://www.digitaldueprocess.org/index.cfm?objectid=37940370-2551-11DF-8E02000C296BA163}

(last visited July 11, 2011).

18 _{Brad Smith, General Counsel, Microsoft Corporation, Speech at the Brookings Institution Policy Forum:}

Cloud Computing for Business and Society, “Building Confidence in the Cloud: The Need for Prompt Industry and Government Action for Cloud Computing” (Jan. 20, 2010), available at

http://blog.seattlepi.com/microsoft/library/20100120smithspeech.pdf (last visited July 11, 2011).

19

See http://www.opencloudmanifesto.org/Open%20Cloud%20Manifesto.pdf (last visited Feb. 4, 2011). AUTHOR LINK BROKEN; PLS VERIFY

social media applications; and when asking prospective clients to register on a Web site or client portal.

For example, a prospective client “follows” a lawyer or firm profile on Twitter and decides to post a 140-character request for legal assistance that includes confidential information about their legal matter. The lawyer’s profile explains that she handles a specific practice area and provides free consultations, but does not specify how these consultations are provided. The lawyer and the firm’s Twitter account regularly posts tweets with general legal information pertaining to the practice area to which the individual’s legal need relates. Does the client have a reasonable expectation that the lawyer would be willing to form a client-lawyer relationship? If the lawyer has been answering legal questions in a Web-based forum, does an unsolicited, direct question posted publically on Twitter to that same lawyer constitute a request from a prospective client to which the lawyer must respond?

Model Rule 1.18 provides that “[e]ven when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal

information learned in the consultation, except as Rule 1.9 would permit with respect to information of a former client.”20 Comment 2 to the rule clarifies that a prospective client is not “a person who communicates information unilaterally to a lawyer, without any reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship . . . .” (Emphasis added.) Comment 3 to this rule provides that the lawyer has a duty to keep the information transmitted confidential regardless of how brief.

Model Rule 1.2(a) provides that “a lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation . . . .”21 Section (c) of the rule allows for limited-scope representation, also termed the

20 _M

ODEL RULES OF PROF’L CONDUCT R. 1.18, available at

http://www.abanet.org/cpr/mrpc/rule_1_18.html (last visited July 11, 2011).

21

MODEL RULES OF PROF’L CONDUCT R. 1.2 (YEAR), available at

unbundling of legal services, which is becoming a popular form of delivering legal services online to clients.

To understand how Rule 1.18 and 1.2 work with cloud computing, it is necessary to distinguish among the different online communications in a variety of delivery

formats. Communications through cloud-computing applications are similar to the use of text messaging, rather than a cell phone call, and occur at must faster speeds than the use of traditional e-mail. Comments are sent quickly and some with word limits. Likewise, responses to comments posted in this environment generally are expected to be within twenty-four hours if not immediate. The transmissions in most cloud-based applications are public. Not only may the lawyer be responding to the prospective client’s post, but other individuals online who are not professionals, and even those who could have conflicting interests with the prospective client, are also able to read and post their own responses either directly to the individual or out to the general public. By doing so, the original request for legal assistance has the potential to be spread around to a large number of individuals.

Ignoring the fact that the lack of privacy and encryption of the transmission of data may compromise the confidentiality of the client’s matter, what are the duties of the lawyer receiving that original request for legal assistance? Within the context of cloud- based communication, such as lawyers’ use of social networking, what is a “reasonable expectation” on the part of a prospective client in online social environments? To be safe, should the lawyer send out standard responses to these requests warning prospective clients not to post confidential information and telling them they cannot represent them? Are disclaimers posted on online profiles sufficient notice to prospective clients?

State bars differ in their opinions in answering these ethics questions. Regarding whether information received from a prospective client online triggers the duty of confidentiality under Rule 1.18, some state bar ethics opinions find that the duty of confidentiality to the prospective client occurs without an adequate disclaimer and even go a step further to claim that just having a law firm Web site is an “implicit agreement”

to consider the formation of a lawyer/client relationship.22 Other state bar ethics opinions do not impose the duty of confidentiality and instead leave the responsibility on the lawyer to decline representation.23 All of these opinions focus on the receipt of unsolicited e-mails from prospective clients rather than cloud-based communications through social media applications or intended online client intake forms or secure client portals. The ethics risks associated with each of these online applications will differ depending on how each operates and is used by the prospective client and managed by the lawyer. The different cloud-based forms of communication between lawyers and prospective clients and how the ethics rules apply might be broken down into two categories: (1) instant, public online communication; and (2) expected online

communications. These different forms of cloud-based communication and how they relate to Rules 1.2 and 1.18 are discussed below.

1. Instant and Public Online Communications

Given the popularity of social media applications that rely on cloud computing, it is unlikely that a prospective client would have an expectation of privacy when

communicating online using a public, cloud-based application. Prospective clients who use these methods regularly read public information posted from individuals that they follow on sites, such as Twitter, Facebook, and LinkedIn.

When registering to use these cloud-based applications, prospective clients must click to accept the terms of use, which typically include statements regarding privacy and confidentiality. These clickwrap agreements for use of the technology are binding and enforceable contracts with that technology provider, but they also could provide evidence that the individual using these application has had adequate notice beforehand of the risks of communicating confidential information using them. In reality, most individuals registering on social media applications do not actually read through these agreements. However, in terms of determining whether there is a “reasonable expectation” that the lawyer will represent the individual following an online transmission, these agreements

22 _{See Assoc. of the Bar of the City of N.Y Comm. on Prof'l and Judicial Ethics, Formal Op. 2001-1 (2001);}

N.J. Sup. Ct. Advisory Comm. on Prof'l Ethics, Op. 695 (2004); Mass. Bar Assoc. Comm. on Prof'l Ethics, Op. 07-01 (2007).

23

State Bar of Ariz. Comm. on the Rules of Prof'l Conduct, Op. 02-04 (2002); Iowa State Bar Ass'n Comm. on Ethics and Practice Guidelines, Op. 07-02 (2007).

point to the fact that prospective clients have been made aware that the method of their transmission is not private and, therefore, should not have a reasonable expectation that their communications to a lawyer using this method will result in legal representation.

In many of these instances, the law firm that has set up an account for the firm is using the cloud-based method as a brand-building or marketing tool and is not intending to communicate directly with prospective clients. However, when a firm builds a “fan” page on Facebook and invites clients and others in the community to become “fans” of the page, this moves the use of the application into another category that may require additional steps by the law firm to avoid ethical missteps. The online presence that the law firm is publically disseminating through the cloud-based application may skew the public’s perception of what expectations it should have regarding communications with the law firm. Accordingly, ethical use of social media applications for the purpose of marketing a law firm may require that that the firm ensure that it uses all the application’s provided privacy settings to restrict the flow of unintended requests for legal services from prospective clients.

2. Expected Online Communication

Similar to creating a “fan page” on Facebook, there are other instances when the lawyer does not intend to establish the lawyer-client relationship through the use of cloud-based technology, but does want to invite prospective clients to find out if the firm’s services could meet their legal needs.

For many law firms still using Web-based and e-mail-driven “contact us” or client intake forms on Web sites, the practice of responding to prospective clients in a clear and prompt manner to avoid the expectation of representation is critical. Lawyers who are contacted over social media applications by prospective clients should be careful to gather only as much information as needed to run an adequate conflicts check, such as the general subject of the legal need and the names of the potential parties involved. Making every attempt to limit the amount of information received before this conflicts check will help the lawyer fulfill his or her duty to protect the confidentiality of the prospective client’s matter. Another way to avoid the ethics risk in this situation might be to also ask the prospective client to consent to waive the protection that Rule 1.18 provides by

having them click to accept that waiver.24 However, there is the question of whether this is adequate.

Any law firm using an online client intake form should be familiar with Barton v. U.S. Dist. Court for the Central Dist. of Cal.25 In Barton, the first case to address this issue, the court held that, when prospective clients filled out an online intake form for the law firm, it gave rise to a lawyer-client relationship that was subject to the lawyer-client privilege and governed by the duty of confidentiality. The court noted that the

communications online might be less secure and that any disclaimers or attempts to have the client waive their confidentiality may not be adequate. The court discussed how the online client’s expectations might differ from the use of the online application, but concluded that a lawyer may be safe using a plain-language disclaimer to avoid the formation of the lawyer-client relationship so long as the lawyer’s actions are also consistent in emphasizing this intention. Accordingly, a combination of both a plain- language disclaimer and clear actions on the part of the lawyer to promptly accept or decline the representation are the current standard to comply with Rules 1.2 and 1.18.

Increasingly, law firm Web sites are evolving from the use of generic “contact us” forms that are e-mail based to the use of secure client portals for existing and prospective clients. The use of a client portal depends on a cloud-computing application to record the clients’ data and register them as a user on the law firm’s site with account access. These forms of interacting with clients online through cloud computing more easily comply with Rules 1.18 and 1.2.

Although more conservative law firms host the client portals on their firm Web sites only for existing clients, other firms invite prospective clients to register to request legal services from the law firm. The registration for the client portal typically includes a clickwrap agreement notifying the prospective client of the intended purpose for the client portal and explaining the nature of the technology used, including confidentiality and privacy notices. Furthermore, the firm’s Web site may have video tutorials or explanations about the purpose of the client portal and how it may be used to request

24

See generally, Michael Loudenslager, E-Lawyering, The ABA’s Current Choice of Ethics Law Rule and the Dormant Commerce Clause, 15 WM.&MARY BILL RTS.J. 587, 601–04 (Dec. 2006).

legal services. Most of these firm sites also include standard disclaimers notifying the prospective client that registering and requesting legal services on the site does not automatically result in the law firm agreeing to represent the client in his or her legal matter. Once inside the client portal, the client is able to request legal services in a more secure, encrypted, digital environment where the lawyer may determine whether the firm will represent the prospective client in his or her matter. The prospective client is given a clear agreement or declination of the representation, which is recorded in digital format for both the client and the law firm to have on record. The combination of the clickwrap agreement, which serves to provide the disclaimer, and the actions required in the registration process by the prospective client and the lawyer to proceed should meet the requirements stated in Barton and comply with Rules 1.2 and 1.18.

Public online forums, chat rooms, and cloud-based applications where the lawyer would be providing expert responses are other examples of “expected communication” with prospective clients. This form of interaction raises many different ethics red flags, including unauthorized practice of law in other jurisdictions, which will be discussed in more detail below. Several state bars have issued opinions on the subject of providing online legal advice and concluded that, if the lawyer’s intention is to avoid forming the lawyer-client relationship, he or she must avoid specifically addressing any single

prospective client’s questions and instead limit the communication to posting online only items that cover general legal issues and are educational in nature.26

D. Competency (Model Rule 1.1) and Diligence (Model Rule 1.3)

Model Rules 1.1 and 1.3 come into play when selecting a technology provider and with the daily use of the cloud-computing technology to handle the representation of a client.

For example, a lawyer decides to use a popular cloud-based project management application to map out a trial for the client’s case. The application is still in beta, but the

26 _{See, e.g., D.C. Bar Legal Ethics Comm., Op. 316 (2002),}

http://www.dcbar.org/for_lawyers/ethics/legal_ethics/opinions/opinion316.cfm (accessed February 4, 2011); State Bar of Ariz., Formal Ethics Op. 97-04 (1997)

http://www.myazbar.org/Ethics/opinionview.cfm?id=480 (accessed February 4, 2011); Ass'n of the Bar of the City of New York, Comm. on Prof'l and Judicial Ethics, Formal Op. 1998-2 (1998) http://

lawyer has read positive reviews online and wants to try it out. The lawyer and other members of the firm input data from the client’s case into the application leading up to the time of the trial. However, during this time, the technology provider is acquired by a larger company, and users are given notice that the beta version of the application will be ending and access will be terminated for paying users within a three-month period. The lawyer must remove the client’s data from the application, but wants to retain the

mapping and other organizational planning and strategy created for the case in that cloud- based system before the beta ends. The lawyer did not diligently research the software to ensure that the data would be exportable in a standard file format that would then easily transfer to another application. The lawyer is only able to export the data into an Excel file format that does not retain its usefulness for the management of the client’s case. The law firm must attempt to recreate months of online preparation into another format, whether traditional or within another cloud-computing application, for use at the trial. In this example, the client may not be provided with diligent or thorough representation of his or her case at trial as a result of the firm’s misuse of a cloud-computing technology.

ABA Model Rule 1.1 provides that “[a] lawyer shall provide competent

representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Rule 1.0(j) defines “reasonably” as when “…a lawyer of reasonable prudence and competence would ascertain the matter in question.” Rule 1.3 requires that lawyers “act with reasonable diligence and promptness in representing a client.”

When using cloud computing in practice management, the lawyer cannot rely on the technology provider to ensure that the cloud-based tools the firm has chosen to implement in its practice are kept up to date with the most current industry standards. Rule 1.1 requires that the lawyer is thorough and makes preparations that are necessary to provide representation to the client. When applied to the use of cloud-computing

applications in practice management, this implies that, at a minimum, the lawyer must understand the technology and security issues when using their chosen cloud-based method of handling the client’s case. The lawyer must also act diligently by following regular best practices for daily management of that cloud-based technology because it is being used as a tool in representing the client.

No matter how confident the law firm is in the ability of the cloud-based technology, an application cannot replace the competent actions of a licensed professional. This is a particularly important point for lawyers using cloud-based

document assembly and automation programs where the software may create a seemingly complete and ready-to-go legal document for the client’s matter. The lawyer must review the final product to ensure competent delivery of legal services. The creation of law firm policies regarding the use of cloud-based technology as it applies to client representation may help minimize these ethics risk.

Also related to compliance with Rule 1.3, a lawyer’s use of social media may also give rise to claims that the lawyer is not providing the client with diligent representation. For example, a 2009 article in the New York Times noted a judge’s negative response to viewing a lawyer’s Facebook page showing what the judge perceived to be a lack of diligent representation on the part of the lawyer. The lawyer’s Facebook page showed photos of the lawyer at a party when the lawyer had just requested a continuance from the judge on a case due to the death of a relative.27

It may also be argued that, to comply with Rule 1.3, lawyers should use online social media, search engines, and other cloud-based methods of researching information about parties related to their client’s case. Is a lawyer engaging in diligent representation by failing to check online for information that may be critical to understand his or her client’s case? At the same time, opposing counsel may be researching online for

information the lawyer’s client has posted to cloud-based social media applications or on a blog or public forum. For this reason, it can be argued that, to comply with Rule 1.3, all