Opinion 00-4 (Reconsidered)
FLORIDA BAR ETHICS OPINION
OPINION 00-4 (Reconsideration)
June 28, 2024
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.
If a matter cannot be handled over the Internet because of its complexity, other means must be
utilized, or the matter must be declined.
Note: 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], 4-7.11(a), 4-8.6(a)
88-13; ABA Formal 99-413, Alaska 98-2, Illinois 96-10, New York 709, Ohio
99-2 and 99-90, South Carolina 94-27 and 97-08, Vermont 97-5, Pennsylvania
22-400, Wisconsin EF-21-02, ABA Formal 477R
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 prohibition 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 99-90 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.
An attorney (and those over whom the attorney exercises supervisory authority) may
communicate with the client using email services that provide industry standard encryption while
communications are in transit. See Pennsylvania Ethics Opinion 2022-400 (“…a system of
communication where only the communicating users can read the messages…”). However, an
attorney should consult with the client and follow the client’s instructions before transmitting
highly sensitive information by e-mail. See 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. Additional reasonable precautions to protect
communications may be required depending on the circumstances.
Rule 4-1.6, regarding client confidentiality, was amended in 2015 to include subsection
(e), which provides, “[a] lawyer must make reasonable efforts to prevent the inadvertent or
unauthorized disclosure of, or unauthorized access to information relation to the representation
of a client.” The Comment to Rule 4-1.6 details the following protection that may be afforded if
such reasonable efforts are taken:
The unauthorized access to, or the inadvertent or unauthorized disclosure of,
information relating to the representation of a client does not constitute a
violation of paragraph (e) if the lawyer has made reasonable efforts to prevent
the access or disclosure. Factors to be considered in determining the
reasonableness of the lawyer’s efforts include, but are not limited to, the
sensitivity of the information, the likelihood of disclosure if additional safeguards
are not employed, the cost of employing additional safeguards, and the extent to
which the safeguards adversely affect the lawyer’s ability to represent clients
(e.g., making a device or important piece of software excessively difficult to use).
Although the availability and need for protective measures will continue to evolve,
examples of such measures have included, but are not limited to, “…using secure internet access
methods to communicate, access and store client information (such as through secure Wi-Fi, the
use of a Virtual Private Network, or another secure internet portal), using unique complex
passwords, changed periodically [as appropriate], implementing firewalls and antiMalware/Anti-Spyware/Antivirus…” protection. ABA Formal Opinion 477R.
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.
Additionally, the Comment to Rule 4-1.1 provides, “[c]ompetent representation also
involves safeguarding confidential information relating to the representation, including, but not
limited to, electronic transmissions and communications.” In order to do this, an attorney needs
to maintain an awareness of available updates in technology, as well as the new types of risk
posed, so the attorney can engage in weighing the benefits of the technology versus the risk
posed. Alternatively, the attorney may consider associating with or periodically consulting a
technological advisor to ensure their technological competency.
Any work done by the inquiring attorney’s nonlawyer employees must be supervised by
the attorney as required by Rule 4-5.3 so that the nonlawyer employee’s conduct is compatible
with the professional obligations of the inquiring attorney. An attorney should develop policies
and implement training so nonlawyer employees, as well as other attorneys at a firm, know the
requirements when transmitting confidential information. See Wisconsin Ethics Opinion EF-2102. These measures would help to further demonstrate reasonable efforts by an attorney to
safeguard confidential information.
As the inquiring attorney’s proposal involves the practice of law, the inquiring attorney
can only perform the services as a sole proprietorship or 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 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 47.6(b) [websites are now subject to the substantive lawyer advertising rules; See Rule 4-7.11(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 as a solo practitioner or 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.