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“Conference on the Delivery of Legal Services to Low-Income Persons: Professional and Ethical Issues,” 67 Fordham L. 1751 (1999); “Symposium: Lawyering for the Middle Class,” 70 Fordham L. 623 (2001) (discussing need for innovation in legal services delivery mechanisms for both low and middle income clients). We do not dispute this observation or the spirit of concern and experimentation with which it is made. Essentially the same prescriptions as those we outlined in Opinion 302 apply to attorney communications in chat rooms or similar services, including that the communications must be accurate, lawyers may not imply that they are disinterested in particular matters when they are not, lawyers must disclose any fees they pay in order to participate, and such fees may not be linked to or contingent on the amount of legal fees the lawyer may obtain from clients obtained through online services. On the other hand, the ethical impetus that motivates lawyers to help the public become aware of legal problems cannot insulate lawyers from the consequences arising from formation of an attorney-client relationship as the result of providing legal advice. This is especially true for Internet communications, where giving legal advice might create an attorney-client relationship and thus subject an attorney to malpractice liability in a far distant jurisdiction. 1998-2 (1998) (emphasizing need for caution given Internet’s multi-jurisdictional reach). This conclusion is consistent with that of another state bar ethics committee that has considered the issue.
To illustrate, we will use the example we gave above of one chat room conversation we encountered. Such persons, however, may often find it difficult to change status from a visa waiver. 97-10 (analogizing chat room communication to in-person communication due to its “direct and confrontational nature”); Michigan State Bar Standing Comm. Instead, under our Rules we think it best to regard chat room communications as having some qualities that are similar to in-person communications and some that are different. Lawyers communicating about their services in chat rooms therefore must take care not to run afoul of D. Rule 7.1(b)(2), which prohibits solicitations that involve the “use of undue influence,” and D. Rule 7.1(b)(3), which prohibits lawyers from seeking employment by a potential client whose “physical or mental condition” makes rational judgment “about the selection of an attorney unlikely." On the other hand, attorney communications with potential clients in chat rooms are probably less potentially coercive than face-to-face communications. Rules of Professional Conduct do not contain a provision equivalent to EC 2-2, there is every reason to believe, consistent with the traditions of the profession, that these ethical duties to contribute to making legal information available to the public continue to hold strong here. Because the issue under discussion turns on that question, a review of the basic principles concerning the formation of attorney-client relationships is in order here. 1982) (attorney-client relationship formed where attorney failed to indicate lack of consent to accept court-appointed client after receiving notification of appointment by mail). 1980) (attorney-client relationship created where attorney stated that he did not think a prospective client had a cause of action but would discuss it with his partner, did not call client back, and client relied on attorney’s assessment and did not continue to seek legal representation). 17 (1994) (attorney cannot avoid malpractice liability in rendering legal advice to client or prospective client through “900-number” service by disclaiming attorney-client relationship). The potentially greater immediacy of “real time” communications in chat rooms, as opposed to other forms of written communications, may give rise to concerns similar to those about “in person solicitation in circumstances or through means that are not conducive to intelligent, rational decisions,” D. As one state bar ethics committee observed, a potential client solicited through a cyberspace communication, even in real time, has the option of simply “not responding." We reiterate, furthermore, as we emphasized in Opinion 302, that one of the most distinctive characteristics of cyberspace communications—their reach far beyond the bounds of any particular jurisdiction—raises significant issues for practitioners about the applicability of the laws of multiple jurisdictions. We caution, however, that even the use of a disclaimer may not prevent the formation of attorney-client relationships if the parties’ subsequent conduct is inconsistent with the disclaimer. Most courts agree, for example, that neither a retainer nor a formal agreement is required to establish an attorney-client relationship. In , the court looked to (1) whether the putative client had sought advice from the lawyer, (2) whether the advice sought was within the lawyer’s field of competence, and (3) whether the lawyer, either directly or implicitly, agreed to give the requested advice. In light of these general principles, lawyers seeking to avoid formation of attorney-client relationships through chat room conversations would be well advised to avoid providing legal advice in such communications.. Accordingly, even if a communication begins as a public communication in a chat room or similar exchange service, the attorney may be required at some point to reserve his or her communications for the eyes of a particular advice seeker only. Rule 7.1 covers all communications concerning a lawyer’s services; the D. Rules do not include provisions patterned after ABA Model Rules 7.2 and 7.3, which regulate advertising and solicitation, respectively. And the attorney must always take care in cyberspace, as in face-to-face communications, that information he or she receives through on-line communications does not end up creating conflict of interest problems with respect to existing clients.
We previously provided tentative “best practices” guidance on attorney communications over the Internet to avoid such problems, including the use of prominent “click through” disclaimers. Lawyers’ participation in chat rooms may implicate competing ethical values. Thus, in discussing legal information, lawyers should be careful to emphasize that it is intended as general information only, which may or may not be applicable to an individual’s specific situation. The lawyer “must be extremely careful not to impart individual advice.” (Citations omitted). enters into a lawyer-client relationship with the caller and may not avoid it by disclaimer.”); N.