Opinion 00-4
FLORIDA BAR ETHICS OPINION OPINION 00-4 July 15, 2000 Advisory ethics opinions are not binding. An attorney may provide legal services over the Internet, through the attorney’s law firm, on matters not requiring in-person consultation or court appearances. All rules of professional conduct apply, including competence, communication, conflicts of interest, and confidentiality. An attorney may communicate with the client using unencrypted e-mail under most circumstances. If a matter cannot be handled over the Internet because of its complexity, the matter must be declined. Note: After this opinion was written, Rule 4-1.2 was amended to add subdivision (c) addressing representations limited in scope which provides as follows: If not prohibited by law or rule, a lawyer and client may agree to limit the objectives or scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent in writing. If the attorney and client agree to limit the scope of the representation, the lawyer shall advise the client regarding applicability of the rule prohibiting communication with a represented person. RPC: Opinions: Cases: 4-1.1, 4-1.6, 4-1.7 through 4-1.12, 4-5.3, 4-5.5(b), Subchapter 4-7, 4-7.6(b) [no current rule equivalent], 4-8.6(a) 88-13; ABA Formal 99-413, Alaska 98-2, Illinois 96-10, New York 709, Ohio 99-2 and 99-9, South Carolina 94-27 and 97-08, Vermont 97-5 In re the Joint Petition of The Florida Bar and Raymond James and Associate, 215 So. 2d 613 (Fla. 1968); The Florida Bar v. Consolidated Business and Legal Forms, 386 So. 2d 797 (Fla. 1980) A member of The Florida Bar has requested an advisory ethics opinion. The inquiring attorney would like to provide limited, on-line legal services to Florida residents on simple matters not requiring office visits or court appearances. The inquiring attorney contemplates that these services would include simple wills, incorporation papers, real estate contracts, residential leases and uncontested marital agreements. Documents would be generated at the client’s option and the attorney would charge a fee less than the customary in-office charges. The documents would be reviewed by the inquiring attorney or another attorney authorized to provide legal services in Florida rather than by a paralegal or other nonlawyer. Charges would be made via credit card on a secure server. The inquiring attorney will not charge for simple forms obtainable elsewhere without cost and anticipates providing links to other sites, including The Florida Bar and the Florida Secretary of State, where those forms may be accessed directly. The inquiring attorney asks if there are ethical limitations on offering such a legal service via the Internet. There is no express provision in the Rules of Professional Conduct that prohibit the inquiring attorney from practicing law through the Internet. As noted by the New York State Bar Association Committee on Professional Ethics in its Opinion 709, it is permissible to practice over the Internet as long as the attorney complies with the ethics rules. See also Ohio Ethics Opinion 99-9 and South Carolina Ethics Opinion 94-27. In other words, the inquiring attorney would be held to the requirements of all of the Rules of Professional Conduct. For instance, the inquiring attorney must have a conflict screening process to avoid conflicts of interest under Rules 4-1.7 through 4-1.12. The name of the responsible attorney must also be identified. The inquiring attorney also must ensure client confidentiality under Rule 4-1.6. While the Professional Ethics Committee has yet to issue an opinion on the confidentiality implications of using e-mail to communicate with clients, almost all of the jurisdictions that have considered the issue have decided that an attorney does not violate the duty of confidentiality by sending unencrypted e-mail. However, these opinions also generally conclude that an attorney should consult with the client and follow the client’s instructions before transmitting highly sensitive information by e-mail. See, e.g., ABA Formal Opinion 99-413, Alaska Ethics Opinion 98-2, Vermont Ethics Opinion 97-5, Illinois Ethics Opinion 96-10, South Carolina Ethics Opinion 97-08, and Ohio Ethics Opinion 99-2. Thus, sending the e-mail unencrypted would not be an ethical violation under normal circumstances. Of course, the inquiring attorney is obligated to provide competent representation to these clients under Rule 4-1.1. Thus, if the client’s situation is too complex to be easily handled over the Internet, the inquiring attorney must so inform the client. If the client is then unwilling to meet in person with the inquiring attorney, the inquiring attorney must decline the representation or, if representation has already begun, to withdraw. Any work done by the inquiring attorney’s nonlawyer employees must be supervised by the attorney as required by Rule 4-5.3 to ensure that the nonlawyer employee’s conduct is compatible with the professional obligations of the inquiring attorney. As the inquiring attorney’s proposal involves the practice of law, the inquiring attorney can only perform the services through the attorney’s law firm. Florida attorneys are not permitted to practice law through a corporate entity other than a professional service corporation, professional association or a professional limited liability company. See, Rule 4-8.6(a) and Florida Ethics Opinion 88-13. Practicing law through a regular corporation implicates the unlicensed practice of law and would result in the inquiring attorney violating Rule 4-5.5(b). See also, In re the Joint Petition of The Florida Bar and Raymond James and Associate, 215 So. 2d 613 (Fla. 1968) and The Florida Bar v. Consolidated Business and Legal Forms, 386 So. 2d 797 (Fla. 1980). Regarding a related issue, the inquiring attorney, in order to avoid misleading appearances and to avoid any unlicensed practice of law in other jurisdictions, should indicate that the attorney can only answer questions limited to Florida law. If the inquiring attorney is admitted to practice in any other jurisdictions, the attorney should contact those jurisdictions to determine whether this proposal would meet the requirements of their rules. Finally, the inquiring attorney’s website must comply with the provisions of Rule 4-7.6(b) [websites are now subject to the substantive lawyer advertising rules; See Rule 47.11(a)]. Any other advertising of the inquiring attorney’s Internet practice must comply with the advertising rules found in subchapter 4-7 of the Rules Regulating The Florida Bar. In conclusion, the inquiring attorney’s proposal is permissible as part of the attorney’s law practice through the attorney’s law firm. As the proposal involves the practice of law, the inquiring attorney owes Internet clients all the ethical duties contained in the Rules of Professional Conduct.