Tangled in the Web: the need for caution in Internet use

The Internet has transformed the practice of law, generally for the better. E-mail, online filings and secure client extranets allow lawyers to do things today that were impossible a decade ago.

But challenges and dangers are also lurking on the Worldwide Web. Here are some to consider.

Websites

Lawyers are governed by the rules of the states in which they were admitted to practice. The rules of professional conduct governing client development vary greatly from state to state. If a website is used to give advice and overtly seek clients, some states (Iowa and Florida being two examples) have extended their rules to lawyers and law firms that have no presence in the state other than their websites. Suddenly, lawyers seem to be governed by more than one jurisdiction and must be careful in the design and content of their websites.

Another concern is payment for keywords to advance one's website in search engine rankings. A recent disciplinary controversy involved a lawyer who purchased a competitor's name as one of his keywords; anyone entering the competitor's name into the search engine was directed to the purchasing lawyer's website. It was legitimate in the world of the Web, but represented a gray area in legal ethics.

Blogs

Using a web log/blog can be a powerful marketing tool. When effective, blogs create a unique niche by combining personalized observation with facts and insights from lawyers' areas of focus. But blogs only work if you use them correctly. You must target your market, be specific in your blog postings, be frequent and thus demonstrate your value in the marketplace. Remember that blogs are just one element of a marketing strategy -- and that blogs that openly solicit clients are subject to disciplinary regulation.

Listservs

A discussion among family law lawyers on a listserv recently presented an interesting quandary. A request for an expert in a specific case was made on a listserv; a recommendation was made in response; and then a third comment criticized the referred expert. Participating on the listserv, though quiet during this interchange, was a judge who was scheduled to hear the case. Was this an ex parte communication? No, but the Los Angeles County Bar Association Ethics Committee held that lawyers should not openly make listserv criticisms that could be identified to a particular case or controversy "because it is likely that judges will be included in Listservs or other open communication lists." The problem with the ethics opinion is that, in this case, there was no case identified, only the expert.

Internet use policies

Because of recent awards against law firms for harassment, wrongful termination of employment, and other such torts where discovery of Internet activity has been used as evidence, many firms are considering an Internet policy. Several managing partners of large firms, in a recent roundtable discussion that I conducted, stated that their firms had basic policies specifying that the Internet and e-mail are only to be used for work-related, not personal, matters. Many also blocked perceived pornographic sites. Beyond this, most of the managing partners felt that Internet policies were unenforceable. But evolving laws and court decisions may change such attitudes so firms can combat claims that they allowed a hostile, unsafe work environment to exist.