Legal Internet guru Jerry Lawson points to an article called Thwarting Ethical Violations With Web Site Disclaimers by law professor Walter Effross.
I had a bit of a sense of deja vu because, although Jerry doesn’t mention this, he, Brenda Howard and I wrote an article that covered some of the same territory a few years ago. Interestingly, and this is a rare occurrence, I still have the same disagreements with Jerry on a few points that I had in that article.
So, I find myself in the unusual situation where I will be quoting the same language from Professor Effross’s article as Jerry does, but drawing a quite different conclusion.
The topic is email, in particular the practice of law firms of actually allowing visitors to their websites to send email to lawyers from the website. Just to be clear, we are talking about the use of email links on websites, a practice used by roughly 100% of websites that expect any kind of interaction with customers.
Here’s the money quote and the text for our lesson today:
“In this context, it might be an ethically questionable practice to allow visitors to e-mail the firm’s attorneys directly through an e-mail link featured on the site (for instance, on an attorney’s individual page) without interposing a click-wrap box that contains such warnings as those above, and requiring the visitor to click “I agree” before actually composing and sending the e-mail. The box could also specify the jurisdictions in which the attorney in question is licensed to practice, and could state that visitors from other jurisdictions should not contact that attorney for representation. One firm states in such a click-wrap box, “Our policy is not to return e-mail regarding a specific legal matter from anyone who has not already engaged the firm.”
Even if such click-wrap boxes appear when a visitor attempts to send e-mail to an attorney through the site, the site should not display the attorney’s e-mail address, since a visitor could merely write it down or cut and paste it into the address line of an e-mail form generated by the visitor’s own e-mail program, and thereby avoid the warnings entirely.”
I’ll note that these paragraphs are written without any sense of irony and without any suggestion that making phone numbers available in phone books MIGHT BE EVEN MORE DANGEROUS, especially since we cannot yet interpose a clickwrap agreement on phone calls. Giving out a mailing address would, of course, raise the same concerns about regular mail, especially since a firm could not paste disclaimers on all mail boxes.
I point out these paragraphs not to be critical of Professor Effross, even though I disagree with him on these particular points, but to illustrate the types of things a lawyer who wants to use the Internet in any kind of normal way routinely faces because of interpretations and commentary on the current ethical rules and the lack of guidance out there.
The concern about these kinds of emails is grounded in legitimate concerns about whether an attorney-client relationship can be initiated through the sending of an unsolicitated email, confidentiality and related issues, and Professor Effross does a great job of summarizing those issues in a way that those who are not lawyers can understand and appreciate.
However, there is a difference between reasonable approaches to dealing with these concerns and the point of view out there that seems to require that lawyers place walls, moats and barriers between themselves and the public or else risk violating ethical rules.
But that’s not really my point in this post. With a few exceptions, at least in my opinion, Professor Effross’s article is an excellent summary and analysis of the mind-numbing number of issues lawyers who have websites have to deal with and address, almost all of which run contrary to any normal notion of usability of a website in the eyes of normal humans.
I encourage everyone, lawyer or not, to read the article and see the restrictions and recommendations. Count up the number of disclaimers that may be required and what all a lawyer might be expected to disclaim. Look at at the hurdles a lawyer might well be expected to jump over. Substitute phone calls or even meeting someone on the street for email and consider what the implications would be if the same rules applied in those situations (arguably they do) and the fiction that “email is different” no longer is accepted as a basic assumption.
Here’s my favorite passage that illustrates the lengths some law firms go, and some commentators seriously expect lawyers to go, with respect to the simple act of placing articles on a website:
“In addition, a number of terms-and-conditions pages indicate that the material on the corresponding sites is provided “as is,” and is not necessarily accurate, complete, or updated. Firms have also disclaimed both express and implied warranties for the information provided, including the implied warranties of merchantability, fitness for a particular purpose, and noninfringement. (One firm even extends this disclaimer to the biographical and bar admittance information about its lawyers.)
It would certainly be more effective not to confine such warnings to the terms-and-conditions pages, but instead to repeat them on each page of the site that links to such articles, or to install a click-wrap screen that pops up when the visitor clicks on such links. The disclaimers could also be embedded conspicuously in the pages containing the articles themselves, since these pages might be cut and pasted into a computer file, saved in their entirety as computer files, printed out, or bookmarked on the visitor’s Internet browser. The visitor might also e-mail to a colleague the web address of that particular page, allowing the colleague to reach the page directly without passing through a click-wrap screen.
In addition, a firm could add to each web page containing an article or flyer the date when the document first appeared, as well as an indication of whether and when the version on this site has been updated. Warnings that this information is not offered as legal advice and that it may not reflect the current state of the law could also appear on each of these pages.
If a site indicates a date on which it was last updated, care should be taken to warn visitors that not every page in the site was updated at that time. Perhaps separate update notices could be put on each time-sensitive page.
Firms might also consider adding to each of these pages, instead of relegating to the terms-and-conditions page, the statement that views, perspectives, or conclusions espoused in articles, speeches, or client alerts featured on the site do not necessarily reflect the views of the firm or of any of its lawyers or clients.”
Well, who else’s views might they reflect?
I’d love to see Jakob Nielsen analyze the usability of websites that adopt all of the practices set out in this article.
I’ve had a website for nearly ten years and I swear to you that the guidelines and rules for lawyers with websites are less clear now than they were even ten years ago when all of this was new.
As I have long said, if I ever leave the practice of law, I’ll point to issues like these as a big part of what drove me out.
By the way, I have not yet heard whether the proposed legal marketing rule changes in Missouri, which arguably prevent lawyers from using email in any meaningful way to communicate with non-clients, have been enacted or not.
[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]