Does a lawyer's website that lets clients generate estate planning documents online satisfy the duty to protect client confidences?

Plain-English summary

The inquiring lawyer had created a website that let clients have estate planning documents produced over the Internet. He described safeguards he had taken to protect confidentiality: individual client passwords, secure encryption, and an encryption program that would run through the lawyer's office. He asked whether those safeguards, in the context of online communications, complied with the confidentiality provisions of RPC 1.6.

The committee stated that it appeared the lawyer had taken appropriate steps to protect client confidentiality under the circumstances. It added, however, that whether the particular software and methods used were adequate to provide the protections required under RPC 1.6 were questions of law the committee was not permitted to answer. The committee also said it could not analyze the lawyer's forms for compliance with RPC 1.1, 1.3, and 1.4 because it does not interpret the standard of care for practice in any particular field of law.

Finally, the committee observed that use of the Internet to represent clients in a jurisdiction other than Washington was an issue as yet unresolved under RPC 5.5 in Washington, and that some jurisdictions were treating such representation as the unauthorized practice of law in their jurisdictions.

Currency note

This opinion was issued in 2000, before the Washington State Bar Association's adoption of the 2006 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance.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 the committee approve the lawyer's confidentiality safeguards for the website?

A: It said the described steps (passwords and encryption) appeared appropriate under the circumstances, but it declined to decide whether the particular software and methods were adequate under RPC 1.6, calling that a question of law it was not permitted to answer.

Q: Would the committee review the website's estate planning forms for competence?

A: No. The committee said it could not analyze the forms for compliance with RPC 1.1, 1.3, and 1.4 because it does not interpret the standard of care for practice in any particular field of law.

Q: What did the committee say about serving clients in other states through the site?

A: It said using the Internet to represent clients in a jurisdiction other than Washington was unresolved under RPC 5.5 in Washington, and that some jurisdictions were treating such representation as the unauthorized practice of law.

Background and rules framework

The opinion touches several Washington rules that mirror their Model Rule counterparts: RPC 1.6 (confidentiality of information), RPC 1.1 (competence), RPC 1.3 (diligence), RPC 1.4 (communication), and RPC 5.5 (unauthorized practice of law). The committee answered only the confidentiality framing it could address as an ethics question, treating the adequacy of specific technology and the multijurisdictional-practice question as outside what it could resolve.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.6 / Washington RPC 1.6 (confidentiality of information)
• Model Rule 1.1 / Washington RPC 1.1 (competence)
• Model Rule 1.3 / Washington RPC 1.3 (diligence)
• Model Rule 1.4 / Washington RPC 1.4 (communication)
• Model Rule 5.5 / Washington RPC 5.5 (unauthorized practice of law)

See also

• WSBA Ethics Op. 1093: Computer Program for Legal Documents
• WSBA Ethics Op. 1831: Nationwide Internet Law Firm
• WSBA Ethics Op. 1848: Outside Agency Maintaining a Computer Network
• WSBA Ethics Op. 1607: Confidentiality and Fax Machines

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1156

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Advisory Opinion: 1916
Year Issued: 2000
RPC(s): RPC 1.1; 1.3; 1.4; 1.6; 5.5
Subject: Lawyer created Web site that allows clients to have estate planning documents produced via the Internet

The inquiring lawyer has created a web site that allows clients to have estate planning documents produced via the Internet. The lawyer states that he has taken steps to protect client confidentiality, including individual client passwords, secure encryption and McFee Fortress encryption program that would run though the lawyer’s office. The lawyer asks if these safeguards, in the context of online communications, comply with the confidentiality provisions of RPC 1.6.

The committee stated that it appears the lawyer has taken appropriate steps to protect client confidentiality under the circumstances. However, whether the particular software and methods used by the lawyer are adequate to provide the protections required under RPC 1.6 are questions of law that the committee is not permitted to answer.

The committee cannot analyze your forms for compliance with RPC 1.1, 1.3, and 1.4 since the committee does not interpret the standard of care for practice in any particular field of law.

Use of the Internet to represent clients in a jurisdiction other than Washington is an issue as yet unresolved under RPC 5.5 in Washington. Some jurisdictions are treating such representation as the unauthorized practice of law in their jurisdictions.