How do the advertising, fee-sharing, and confidentiality rules apply to a law firm's website, online services, and email?
Apply this to your situation
This page answers the general question as of 1998. Ezel answers yours: whether it's allowed on your facts, under the current New York Rules of Professional Conduct, with citations.
Plain-English summary
An intellectual-property firm planned a website offering firm information, general patent/trademark/copyright information, and online services such as trademark searches and applications, to be requested through online forms by existing and prospective clients. The opinion addressed five questions under New York's Code of Professional Responsibility.
On filing and retention, the Committee treated a firm's website as analogous to broadcast advertising under DR 2-101(F): generally available but evanescent, so no filing with the Departmental Disciplinary Committee was required, while the firm should retain a copy of each version of its website for at least one year. On a firm-sponsored listserv discussion area, the Committee said the firm could host one but had to exercise caution to avoid forming an attorney-client relationship and to avoid the area being perceived as improper advertising or solicitation; it observed that telling a subscriber who appears to need legal advice that he should consult a lawyer is analogous to handing out a card after a speaking engagement.
On payment to the internet service provider, the Committee concluded that DR 3-102 (dividing fees with a non-lawyer) barred the firm from paying its provider a fee calculated by reference to the fees the firm earned from online services. On the trademark-search intake form, it concluded that satisfying such a request would establish a de facto attorney-client relationship, so the firm could not post the form for new customers (it could not run the necessary conflict checks first), though an existing client could use such a form where conflict checks were possible. On email, the Committee concluded that unencrypted email is, in most cases, an acceptable way to convey client confidences, noting the amendment to CPLR 4547 preserving privilege for electronic communications, but advised the firm to tell clients that internet security is not equal to that of mail or telephone and to use greater care for more sensitive matters.
Currency note
This opinion was issued in 1998, before New York replaced the Code of Professional Responsibility (the Disciplinary Rules and Ethical Considerations cited here) with the New York Rules of Professional Conduct, effective April 1, 2009. The advertising rules in particular have since changed substantially, and later opinions address electronic communications and security in greater depth. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.
Common questions
Q: Did a firm have to file its website with disciplinary authorities?
A: No. The opinion concluded a website was most like broadcast advertising under DR 2-101(F), so no filing was required, but the firm should retain a copy of each version of the website for at least one year.
Q: Could a firm pay its internet provider based on the fees it earned online?
A: No. The opinion concluded that DR 3-102, which bars dividing fees with a non-lawyer, prohibited paying the provider a fee calculated by reference to the firm's earnings from online legal services.
Q: Could the firm let website visitors request a trademark search through an online form?
A: Only existing clients. The opinion concluded that fulfilling such a request would create a de facto attorney-client relationship, so the firm could not offer the intake form to new customers without first running conflict checks, but could to existing clients where conflict checks were possible.
Q: Could the firm use unencrypted email for client communications?
A: Generally yes. The opinion concluded unencrypted email was, in most cases, an acceptable way to convey client confidences, but advised the firm to caution clients that internet security is less than that of mail or telephone and to take greater care with sensitive matters.
Background and rules framework
The opinion interpreted New York's then-governing DR 2-101 (advertising and publicity, the analog of Model Rule 7.2), DR 2-104 (solicitation), and DR 3-102 (dividing fees with a non-lawyer, the analog of Model Rule 5.4), together with the confidentiality duties of Canon 4 (now Model Rule 1.6). The analysis applied advertising-record, fee-sharing, and confidentiality principles to a then-new medium.
Citations and references
Rules of Professional Conduct (then in effect):
- DR 2-101 (advertising and publicity; analog of Model Rule 7.2)
- DR 2-104 (solicitation of professional employment)
- DR 3-102 (dividing fees with a non-lawyer; analog of Model Rule 5.4)
- Canon 4 (confidentiality; concern of Model Rule 1.6)
Statutes:
- New York CPLR 4547 (privilege preserved for electronic communications)
Other opinions cited:
- N.Y. State Bar Opinion 709 (1998): website filing and email confidentiality
- D.C. Bar Opinion 281 (1998): unencrypted email and confidentiality
See also
- ABA Formal Op. 10-457: Lawyer Websites
- ABA Formal Op. 477R: Securing Communication of Protected Client Information
Source
Get today's answer for your situation
You just read a 1998 opinion on this question. Ezel checks the current New York Rules of Professional Conduct and answers your specific situation, with citations.
Opens in Ezel Pro. Every answer cites the rules it relies on.