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.