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ETHICS SPOTLIGHT ATTORNEY MALPRACTICE FOR WEB SITE CONTENT Laura W. Morgan, Senior Attorney for Family Law, National Legal Research Group Executive Editor, Divorce Litigation There is little doubt that attorneys are now using the Internet as a means of marketing - to attract new clients and retain current clients. Indeed, it now estimated that there are 20 million home pages for business in the United States, and, according to an article in the February 1999 issue of Trial magazine, by the year 2001, 135 million people in the United States will be using e-mail. As part of the business population, attorneys are joining the Internet in ever increasing numbers. See Marketing a Law Firm On-Line and Building an Internet Presence, New York Law Journal at 5 (October 24, 1995); Firms Join the Web Marketing Craze, National Law Journal at A1 (February 12, 1996); Marketing in Cyberspace, American Bar Association Journal at 84 (July 1995); Should You Have a Page on the World Wide Web?, Lawyers’ Weekly USA (June 19, 1995). Much of the literature thus far concerning lawyers’ web pages has focused on the application of ethical rules to lawyers’ web pages. See Gregory H. Siskind & Timothy J. Moses, The Lawyers’ Guide to Marketing on the Internet (ABA 1996); T.K. Read, Pushing the Advertising Envelope: Building Bill Boards in the Sky Along the Information Superhighway, available at http://www.computerbar.org/netethics/read.htm. In particular, the literature has focused on Rule 7.1 of the Model Rules of Professional Conduct, which prohibits false and misleading communications concerning a lawyer’s services, Rule 7.2 of the Model Rules of Professional Conduct, which permits advertising not involving solicitation, and Rule 7.4 of the Model Rules of Professional Conduct, which prohibits a statement of specialty. See Note, Attorney Advertising and Solicitation on the Internet: Complying with Ethics Regulations and Netiquette, 13 J. Marshall J. Computer & Info. L. 697 (Summer 1995). The State of Texas has issued a specific rule governing Internet advertising, available at http://www11.pair.com/sare/adrules.htm. Less has been devoted to the issue of malpractice. Specifically, can a layperson who reads an attorney’s web page and relies on the information contained therein sue the attorney for malpractice if the information was false or the information outdated? Perhaps the reason for the paucity of literature and case law on this topic is that most, if not all, attorneys provide a disclaimer: This web page is a public source of general information which is intended, but not promised or guaranteed, to be correct, complete, and up-to-date. However, this Web page is not intended to be a source of advertising, solicitation, or legal advice; thus, the reader should not consider this information to be an invitation for an attorney-client relationship, should not rely on information provided herein, and should always seek the advice of competent legal counsel in the reader’s state. The owner does not intend links on the web page to be referrals or endorsements of the linked entities, and the owner of this web page will not accept referrals for employment from unregistered referral services. Furthermore, the owner of this web page does not wish to represent anyone desiring representation based upon viewing this web page in a state where this web page fails to comply with all laws and ethical rules of that state. Finally, the use of Internet e-mail for confidential or sensitive information is discourages. What if, despite all the above, a lay person reads legal information on an attorney’s web site, which information proves to be false or out of date, and relies on that information? Can that lay person sue for malpractice? First, when a lawyer responds an on-line legal question, even with only general information, the lawyer carries the risk creating an attorney-client relationship, and thus exposure to malpractice liability. Formality is not an essential element for the creation of the relationship, nor is the presence of a fee agreement. See generally Law. Man. Prof. Conduct 31:102-03. Even without an express contract, courts have found an attorney-client relationship when reasonable reliance can be established from the facts; the test is a subjective one that focuses on the client's belief that the relationship exists, and evaluation of the reasonableness of the client's subjective beliefs depends on the facts and circumstances of each case. Law. Man. Prof. Conduct 31:103. An attorney-client relationship may be predicated on casually rendered advice. Thus, there is a likelihood that some users of the web site "will subjectively and reasonably believe that an attorney who answers questions that they have proposed is their attorney." Peter Jarvis and Bradley Tellam, Electronic Ethics and Malpractice Issues (CLE Seminar: Lawyers and the Internet). Said another commentator, "If it looks, tastes and smells like legal advice, then a court may decide that it's legal advice." A Shingle in Cyberspace, National Law Journal (September 27, 1993). The disclaimer will probably reduce the likelihood that a reasonable person would believe that an attorney-client relationship has been created. However, once a lawyer has answered a specific question with specific advice, the disclaimer will not protect the attorney. On the other hand, so long as the attorney gives only GENERAL advice not to any specific person, malpractice liability will probably be avoided. For example, the South Carolina ethics committee decided it is permissible for attorneys to maintain a presence on electronic media for the purpose of discussing legal topics generally, ``without the giving of advice or the representation of any particular client." Its own earlier opinions had approved the concept of furnishing general legal information to the public at educational programs, and "[o]ther jurisdictions have similarly recognized that the participation in educational seminars, newspaper columns, and radio shows for members of the public generally, which do not provide specific legal advice to individuals, are permissible." South Carolina Ethics Opinion 94-27. Second, even without specific inquiries and answers, it is possible that malpractice liability could be imposed based only on the information contained on the web site. Restatement (Second) of the Law of Torts § 552(1) recognizes liability for negligent misrepresentation resulting from "justifiable reliance'' upon "false information" supplied in the course of a business or profession for "the guidance of others in their business transactions," if the supplier "fails to exercise reasonable care or competence in obtaining or communicating the information." Section 552(2) further provides that liability is limited to loss suffered (a) by "the person or one of a limited group of persons for whose benefit" the supplier intends to supply the information, and (b) through reliance on the information in a transaction the supplier intends the information to influence or in a substantially similar transaction. Contributory negligence is a defense under Section 552A. Conceivably, a user who relies on information posted at a lawyer's web site could invoke Section 552 without an attorney-client relationship between the user and the lawyer, since some cases have applied Section 552 when evaluating a lawyer's liability to a third party non-client. E.g., Haberman v. Washington Public Power Supply System, 744 P.2d 1032 (Wash. 1987) (action by bondholders against attorneys and other professionals hired by bond issuer). A notice or disclaimer at the site or in the message cautioning users not to rely on the information might help avoid reliance or, in the event of a lawsuit, help show that the user's reliance was not ``justifiable.'' Thus, if the attorney does not have a disclaimer such as the one above, and a lay person reasonably believes he has the right to rely on any advice or information contained in the attorney’s web pages, and that an attorney-client relationship has been formed, malpractice liability might arise. Laura W. Morgan is a Senior Attorney in Family Law at the National Legal Research Group, in Charlottesville, Virginia, a firm that writes memoranda and briefs for attorneys nationwide. Ms. Morgan is the author of "Child Support Guidelines: Interpretation and Application," and is currently Chair of the Child Support Committee of the American Bar Association Family Law Section. She can be reached at: goddess@supportguidelines.com, or phone 1-800-727-6574 or 1-804-977-5690 © 1999 National Legal Research Group and LawTek Media Group, LLC all rights reserved No information or materials posted here are intended to constitute legal advice, nor can we guarantee the accuracy of posted information, especially as to each individual situation. LawTek does not independently check the information contained herein and does not refer or endorse any product, service, or firm. This site does not constitute an attorney-client relationship; local counsel should always be consulted. FAM-LAW-LIT: A SURVEY OF CURRENT PERIODICAL LITERATURE ADDRESSING FAMILY LAW ISSUES Family Law Advisor® HOME PAGE Lawyer-to-Lawyer