Legal advice given over the Internet and Intranet: how does this practice affect the lawyer-client relationship

Attorneys use the client interview as a means of gathering information necessary for counseling their clients. (1) Prior to the advent of the telephone, face-to-face interviews between attorney and client were typically the way that information was exchanged. (2) Today, attorneys have several communication tools at their disposal for gathering information from clients: face-to-face interviews, mailings, and the use of the telephone, facsimile, and electronic mail. The Internet (3) has been touted by many for its ability to connect people to sources and information with relative ease. (4) It should come as no surprise, then, that attorneys also are jumping on the technological bandwagon. (5) Nevertheless, despite advantages such as speed and efficiency, communication via the Internet is largely impersonal. (6) Can attorneys, who are already maligned for their indifference to clients’ needs, (7) afford to be even more impersonal via the convenience of electronic communication

This Note will analyze the potential impact that messages transmitted over the Internet and Intranets (8)–specifically, legal advice that lawyers give clients–will have on attorney-client communication. The different uses by lawyers of the Internet and Intranets will be discussed in the context of the overall effect such uses may have on attorney-client communication. After all, lawyers, optimally, should be effective communicators, (9) so the notion of just what constitutes effective communication will be given more than a cursory review.

Part II will provide brief background information on of Intranets that will highlight the characteristics that distinguish Intranets from the Internet. The various ways that attorneys in firms and corporations use Intranets will be discussed. As will become evident, Intranets hold both promise and the potential for pitfalls depending on how they are used.

Part III will expand on the analysis. Various uses of the Internet and Intranets, particularly as lawyer-client communication devices, will be discussed and analyzed. These uses include the facilitation off (1) the furnishing of legal “information” via the Internet to a web-site visitor, (2) Internet or Intranet forums where corporations and firms can communicate with, and provide case statuses and updates to, their clients, (3) the gathering of initial information from potential clients, (4) instant messaging between attorneys and their clients, (5) mediations between litigants, and (6) on-line client access to their files, including all relevant legal documents and filings.

Part IV analyzes the inevitable ethical concerns that arise when firms and corporations use the Internet and Intranets as a communication and informational tool. Significantly, attorney-client privilege issues and confidentiality concerns may arise from such uses. Finally, the Note will conclude by analyzing the extent to which the medium (on-line communication) and the message (legal advice) match up to facilitate effective communication between attorney and client. (10)

II. INTRANET USE BY FIRMS AND CORPORATIONS

Today, the popularity of Intranets with corporations is unmistakable. (11) By way of background, the term “Intranet” was introduced to and recognized by the public only as recently as 1994. (12) Although the terminology is recent, the technology associated with the construct dates back to the origins of the Internet. (13) Organizations value Intranets because through privacy mechanisms known as “firewalls” (14) they can keep information about their operations secure and isolated from Internet users. (15) Perhaps surprisingly, they are also relatively inexpensive and easy to set up. (16)

Intranets have also become popular with corporations (as well as law firms) primarily because of the ease with which information can be shared and accessed. Indeed, Intranets facilitate learning about a company’s practices by making the “knowledge” of the company available for all employees. (17) Employees need not seek out the experts in a given department or rummage through file cabinets for relevant reports. Instead, all they need to do is navigate their company’s Intranet, and they may find just what they are looking for in the form of a best practices report, for example, without having to leave their desks. (18) This is assuming, of course, that employees will use the Intranet–an assumption that perhaps should not be so quickly made considering people’s tendency to resist change. (19) Nevertheless, with an Intranet in place, departments and even individuals within a company can design Web pages that showcase information about the company. (20)

However, because Intranets are often linking systems in different countries, this autonomy must be tempered. Specifically, lawyers need to be concerned that what they put on an Intranet does not offend practices employed in other countries. (21) For example, legal advice given over an Intranet regarding what constitutes a hostile work environment is further complicated if the company is multinational and the different cultures incongruously define workplace hostility. (22)

Law firms have looked to Intranets as less costly substitutes for collaborative information gathering processes that were traditionally executed by a groupware tool such as Lotus Notes. (23) Attorneys are organizing discussion forums, indexing documents and making them available on their Intranets, which sometimes requires imaging a document and then providing a textual description to accompany the image, as is the case with discovery documents. (24)

As noted earlier, corporate law departments also use the technology, although the users are usually legal professionals. (25) However, since corporate Intranet “legal information” sites are often viewable by many, if not all, of a corporation’s employees, disclaimers, stating that information on the site is not legal advice, may often be included. (26) Despite the guarded approach conveyed by such “not legal advice” disclaimers, the allure of on-line communication, with its efficiency and speed, entices some to use the medium as a forum for disseminating legal information and facilitating the practice of law. (27) Indeed, “‘the Intranet has broken down the walls within corporations,” (28) so corporations utilizing the technology must be alert that their sites do not foster misuse of, or over-reliance on, the shared information.

One company that has recognized this danger and, consequently, has taken steps to avoid such harms is Lucent Technology. Lucent’s Law Division is composed of close to 200 lawyers in forty different groups. (29) Its Intranet (30) sprang from the realization that lawyers in the Law Division were often uninformed about what lawyers in other groups within the company were doing, and, as a result, they often inadvertently “reinvented” the wheel. (31) Lucent’s managers were not sharing company-wide the knowledge of the lessons they had learned. (32) The Intranet was the corporations answer to this problem. However, in order to limit the information accessible and shared, Lucent decided to cordon off a separate Intranet site devoted to its lawyers. (33)

By taking this measure, Lucent’s site facilitates the practice of law, although it does not allow public access to the extent of Internet legal advice sites. (34) It does, however, provide means for the corporation to communicate “appropriate” information to clients via computer. Lucent’s Corporate Counsel, Preston Granbury, notes: “We were mostly using traditional ways to communicate with our clients, which seemed inappropriate for a high tech company. All of these concerns could be thought of as involving … ineffective communications, and … the Intranet might offer a good communications tool for addressing them.” (35) In short, Lucent has found an effective way to weave a new communication technology into its Law Division.

III. INTERNET AND INTRANET USE BY ATTORNEYS AND THEIR CLIENTS: EVALUATING THE LAWYER’S COMMUNICATION COMPETENCE

Lawyers, firms and “others” (36) have also begun to use the Internet and Intranets in various ways. As noted in the Introduction, these uses include the facilitation of: (1) the furnishing of on-line legal “information” to a web-site visitor, (2) Internet or Intranet forums where corporations and firms can communicate with, and provide case statuses and updates to, their clients, (3) the gathering of initial information from potential clients, (4) instant messaging between attorneys and their clients, (5) mediations between litigants, and (6) on-line client access to their files, including all relevant legal documents and filings. Each will be discussed in turn below, particularly in relation to the extent to which the use possibly furthers the “communication competence” of lawyers.

Today, the Internet is dotted with sites that offer users legal “information.” (37) Individuals using the Internet can get legal advice on-line via a number of avenues: newsgroups, (38) “listservs,” (39) “chat rooms,” (40) and legal advice Web sites. (41) This list is not exhaustive, and the discussion in this section will focus primarily on the last two ways mentioned, chat rooms and legal advice Web sites.

Lawyers, and sometimes even paralegals and law students, will answer legal questions posed on the Internet, but the organizations that sponsor the answering service or the lawyers themselves are quick to point out that while doing so they (the lawyers) are not intending to form a relationship with the advisee. (42) Legal advice Web-site disclaimers illustrate the careful approach typical of lawyers using the Internet as a forum for dispensing legal advice. While a Web site may state that its purpose is to “educate the public about legal options that may exist,” (43) it is doubtful that a legal professional can educate someone without knowing the specifics of that person’s problem. There should be no doubt that legal issues are best addressed by legal professionals and the thoroughness should not be compromised merely because the advice is being given via cyberspace.

To expect a layperson to even know how to ask “general,” as opposed to “specific” legal questions is unrealistic. When people have legal problems they are not going to settle for being told that their questions cannot be too specific. Education about the law, even when addressed only to the availability of legal options, is not achieved this way. Sites which “educate the public about legal options that may exist,” but simultaneously encourage visitors to seek legal advice, e.g., Legal dot Net — Dear Esquire, at http://www.legal.net/1dn2/dearesq.shtml (last visited Mar. 13, 2001), are characteristic of legal referral services, not “legal question and answer” services. The timidity in answering specific questions rings of a fear of legal wrangling, which may very well be warranted given the little guidance that courts have provided attorneys in this area. (44)

The second use of the Internet and Intranets as a communication device is as a forum for discussion between corporations or firms and their clients. In this area, the success or failure of an Intranet will depend on how it is used by the participants. Specifically, since the typical Intranet will likely involve multiple clients, various issues arise (e.g., length and complexity of legal questions

We have both deliberately and unconsciously treated law talk as the talk of
judges to other judges and to lawyers contemplating future litigation….
But the two principal talks of lawyers are lawyer to client (counseling)
and lawyer to lawyer (negotiating). We have assumed without empirical
investigation that these two talks are so heavily determined by judge to
judge and judge to lawyer talk…. What if we began our study of law with
the proposition that law is not what judges say in the reports but what
lawyers say–to one another and to clients–in their offices? … Such an
approach would give us a more accurate description of law as it is. (45)

As a practical matter, if lawyers want to be considered effective communicators in their clients’ eyes, this goal will necessarily involve an assessment of how it is that law is practiced. In other words, looking just at their role as counselors, lawyers will need to dissect the discourse and evaluate–instinctively and by getting client feedback (46)–whether the current setup is facilitating communication. Lawyers are not “in it” for the charity, though. Not every client is going to be worth the extra effort to showcase exceptional communication skills. The reality is that “the lawyering may not look pretty, the client may be unhappy, but any solution to the problem could require wealth redistribution rather than increased lawyer competence or better lawyer-client interaction.” (47)

“For clients, lawyers provide an important source of information about the substance of law and legal rights, and help them relate legal rules and procedures to individual problems.” (48) Clients value their lawyers’ opinions on the law as being informed and accurate. (49) Frequently, the client’s perspective of the law and how it will apply to her situation differs markedly from the advice she receives from her lawyer. (50) The client’s misconceptions about the law can be addressed in communications between the parties. Does this have to be done in a face-to-face meeting to be more effective, or is on-line communication adequate to address the client’s misconceptions?

A third way in which the Internet and Intranets can be employed by firms is as an initial information gathering device, providing the firm with basic client background information and facts regarding the potential claim. For instance, Jacoby & Meyers, a New York-based firm with twenty offices throughout the country, has set up a system called Instant Interview, (51) an interactive Web site aimed at obtaining clients. (52) Potential clients can fill out an on-line questionnaire that elicits information about their situation, and the firm then determines if it will take the case. (53) If the finn does take the case, the plaintiffs have the luxury of checking in periodically on the Web site to see the status of their case. (54)

Instant Interview’s questionnaire also asks prospective clients about details of the accident, the nature of the injuries, if any, and the extent of any property damage. (55) The Web site’s questionnaire also inquires whether the injuries prevent the person from participating in leisure activities or sexual relations. (56) There’s no need to worry about the potential client blushing upon being asked this question, since a computer screen is posing it. Nevertheless, visitors are urged to keep in mind that the Web site is not intended to supplant, but rather supplement communications with an attorney. (57) The site is useful as an educational tool and for keeping the clients informed about the progress of their case, and clients are always free to call or e-mail the attorney assigned to their case should they have any questions about any information online. (58)

Flexibility remains an option for firms employing the Internet and Intranets in the manner that Jacoby & Meyers has done. Specifically, Jacoby & Meyers assures the public that the “personal touch” will not be lost

Despite these benefits, however, some commentators have criticized attorneys’ use of the Internet and Intranets as an initial information gathering tool. For one, technology law expert, Michael L. Prigoff, criticizes the Jacoby & Meyers system, describing it as being a “`very impersonal, callous approach to evaluating client matters.'” (62) As he aptly notes, for someone with a personal injury looking for a legal remedy, finding an attorney to resolve the matter may very well be the most important thing in the person’s life at the moment. (63) Filling out the questionnaire and then having to wait around to see if the firm decides to take the case can be disheartening in the face of such a crisis. (64)

Prigoff’s comments serve as a reminder that while firms should certainly embrace new technology, they should not be so quick to discard or minimize those communication methods that have served them well in the past. No doubt, “traditional communication” (65) is not ineffective communication–at least when practiced correctly. In fact, even in light of the use of the Internet and Intranets, such methods are still the preferred way to conduct communications. For one thing, the information exchanges via the electronic medium are not likely to be as effective as in the face-to-face setting. Also, while the Intranets and Internet may very well suffice as a means of getting a particular message out, where clarification on a legal issue is needed, traditional methods prevail over the more limited Internet and Intranet methods.

Similarly, some have also criticized the fourth use of the Internet and Intranets — facilitating instant messaging between attorneys and their clients. (66) Instant messaging refers to on-line communication whereby participants are on-line at the same time and communicate with each other in “real time,” as if they were talking on the phone. (67) Therefore, if a lawyer is speaking on the phone with one client, he can simultaneously be communicating with another client on-line by sending and receiving messages. (68)

Instant messaging offers the convenient feature of an immediate response to a query

Clients savor instant messaging because it gives them yet another avenue for tracking down their lawyers. (72) Most clients expect their attorneys to be accessible to them when they are needed, and instant messaging satisfies this need–at least when the lawyers want to be found, that is. (73) Critics see this capability of instant demand of someone’s time as intrusive. (74) Some lawyers would rather be contacted by telephone and complain that often the questions are too difficult to answer immediately. (75)

Lawyers are also using the Internet and Intranets in a fifth way — to conduct mediations. (76) Mediation is a form of alternative dispute resolution that involves a neutral third party facilitator who attempts to assist disputing parties in arriving at a resolution. (77) The mediators are often lawyers, although a legal background is not required. (78) In traditional mediation, where the parties and the mediator are in the presence of each other, there are many cues that can signal whether the parties are comfortable with the mediator. For instance, during the discussion of confidentiality, (79) the mediator can observe the parties’ nonverbals to gauge their comfort level. In other words, “communication” in the traditional mediation context is straightforward. With on-line mediation, the mediator doesn’t “hear” or “see” any aspect of your communication as it occurs. What the mediator gets from the client, and the client from the mediator, are responses on a lifeless computer screen.

Parties may favor on-line mediation because it allows them the latitude of responding to comments after they have had an opportunity to reflect. (80) Unlike in traditional mediation, where parties may feel the pressure of having to respond to a statement “on the spot,” on-line mediation offers the disputants an opportunity to regroup and give a more thoughtful response. (81) The above assumes, however, that more time to respond, coupled with the fact that the response is not given in the presence of the other party, will necessarily lead to a more thoughtful answer. (82) If someone takes five days to respond to a question posed by the mediator, it may very well be because that person had not checked his email in the five days since the mediator posted the question, and not necessarily because he got the question immediately and was taking five days to reflect. Ultimately, more time to reflect does not always equal more thoughtful responses. (83)

Finally, firms are also employing the Internet and Intranets in a sixth way — providing on-line client access to their files. Again, Jacoby & Meyers is involved in this area. The firm has made an effort to eliminate paper documents in favor of electronic documents, and along with the Instant Interview site, the firm’s use of the new technology allows attorneys to “do more with less” because of the site’s efficiency. (84) Security is also assured by providing clients with personal identification numbers that allow them access to the system and prevent the unauthorized use of their accounts by others. (85) Other firms have employed similar devices. For instance, Porzio Bromberg & Newman, a New Jersey law firm, allows clients access to documents such as deposition transcripts, briefs, and court filings via a secure dial-up modem connection. (86) Still, “personal techniques such as phone calls and letters [are used] to keep in touch with individual clients,” (87) since “some … clients may not have access to our web site and most of them need more of the personal hand holding a lawyer can provide though personal contact, rather than the Internet.” (88)

As the above discussion and analysis has hopefully made clear, attorneys using the Internet and Intranets as communication devices should keep an important caveat in mind — these tools are only useful as a supplement to already effective communication devices and practices. If used in that vein, both attorney and client will benefit. Indeed, using Internet and Intranet technology to aid clients in learning about their cases is a good thing. Also, as a collaborative tool for attorneys within a firm, the benefits are especially invaluable, for the Intranet allows all those connected to share information almost immediately. (89) But if misused or relied on to too great an extent, the use of the Internet and Intranets can serve to create or exacerbate attorney-client communication problems.

After all, “lawyers are [all too often] thought to be inattentive, unresponsive, insensitive, non-empathetic, uncooperative, and arrogant.” (90) In light of that observation, despite the speed, efficiency, and cost savings of conducting on-line “initial interviews” or handling clients’ documents on-line, such uses may very well set lawyers back even further in the eyes of clients, who all too often view the lawyer-client relationship as an impersonal one. (91) Further, while some may see the possibility of never having to meet with an attorney as a blessing, especially when the attorney is insensitive, inattentive, etc., such a possibility sends some disturbing messages. Through the aid of an Intranet, a “problem” attorney can avoid having to change his behavior knowing that a case can be settled, and presumably the client will be happy, all through the on-line forum. Indeed, lawyers subscribe to the belief that “client satisfaction is overwhelmingly dependent on outcomes.” (92)

But such thinking can be damaging in that it may mask fundamental problems with an attorney’s or firm’s approach towards client communications. It may also lull such “problem” communicators into believing that they have found the “answer” to their problem through the use of the computer to facilitate communications. This is unfortunate. Why should inattentive and insensitive attorneys be any less so simply because they conduct their business with a client on-line? After all, it is much easier to ignore a message on a computer screen than a person sitting in one’s office. So, if attorneys have managed to be brutes in face-to-face meetings, why should we suddenly breathe a sigh of relief knowing that they can conduct their business with us on-line?

Overall, then, it would seem that the most effective use of the Internet and Intranets would be in combination with traditional communication methods. This would seem to be in accord with the typical client’s expectations and desires. Likely, a client would prefer to meet with the attorney who is handling his case at some point in the course of representation. Optimally, this contact would take place when the initial interview is conducted. Such contact allows both client and lawyer to gauge what it may be like to work with the other. It also affords clients the appropriate comfort level to conduct further communications on-line. For instance, if the lawyer appeared distracted or inattentive at the initial meeting, then the client would not be surprised when e-mail requests are not answered. In that case, the client would likely attribute such failure to the attorney rather than to external factors (e.g., “the network was down”) that the attorney might proffer as the reason for failing to keep in touch with, or respond to, the client. In that case, the client could quickly bring the situation to a head or even change counsel.

IV. THE ATTORNEY-CLIENT PRIVILEGE AND CONFIDENTIALITY IN CYBERSPACE

Lawyer-client interaction receives little attention. (93) Researching this relationship proves difficult because the exchange of information between lawyer and client often is a private matter protected by legal privileges. (94) The Federal Rules of Evidence note that “the privilege of a witness … shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in light of reason and experience.” (95) Indeed, “the attorney-client privilege is the oldest of the privileges for confidential communications known to the common law.” (96) A formula commonly applied to determine whether the privilege applies is:

(1) Where legal advice of any kind is sought (2) from a professional legal
adviser in his capacity as such, (3) the communications relating to that
purpose, (4) made in confidence (5) by the client, (6) are at his instance
permanently protected (7) from disclosure by himself or by the legal
adviser, (8) except the protection be waived. (97)

How does the formula apply when on-line communication of legal information is involved? The application should not be any different simply because “new” technology is being employed. In other words, given the prevalence of e-mail as a form of communication, clients are likely expecting that their communications are made in confidence. Is such an expectation reasonable, given that attorneys are often disclaiming an attorney-client relationship whenever they give on-line legal advice? (98) Wigmore’s formula provides that unless it is waived, the privilege should exist if all of the steps are satisfied. The privilege should not be considered waived simply because the attorney fears communicating legal advice over a medium that has been largely untapped for such purposes.

The American Bar Association (ABA) has opined that the transmission of client information via unencrypted electronic mail does not violate the Model Rules of Professional Conduct. (99) Rule 1.6(a) states that “[a] lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation.” (100) The ABA views e-mail as “afford[ing] a reasonable expectation of privacy from a technological and legal standpoint,” (101) and likens its privacy considerations to those of traditional mail, telephonic, and facsimile transmissions. (102) That is not to say that lawyers are without limitations in their use of e-mail to transmit sensitive client information, for they must always consider the wishes of the client who may have concerns about the security of this method of transmitting information. (103)

The ABA has addressed several levels of e-mail communication, including Intranet and Internet communication. (104) With respect to the former, the ABA reasoned that (1) despite the likelihood of misdirected e-mails within a law firm or a client’s organization, all of the firm’s members are bound to uphold the confidentiality of all client matters, (105) and (2) that dissemination of client information to unintended recipients within the client’s organization is unlikely to be injurious to the client. (106) As a result, Intranet communications do not suffer from serious confidentiality concerns, any more so than might exist for telephonic or facsimile transmissions. (107)

Given the size and structure of some corporations, where business units within the same corporation often compete with each other, the inadvertent disclosure may not be so harmless after all. (108) The disclosure does not even have to be inadvertent to cause concern, for companies often grant contract workers access to information that was never intended for their perusal. (109) The ease with which electronic communications can be intercepted (110) casts doubt on the ABA’s position. Nevertheless, because telephonic and mail communications suffer from similar threats of snooping, (111) and they are not forbidden communication channels, consistency and convenience demand that e-mail be given the same protection.

V. CONCLUSION

Internet and Intranet use is facilitating the practice of law. Electronic filing (112) appears to be gaining ground, and the cost benefits to lawyers and clients, and the time that the process will save lawyers, can hardly be attacked as downsides of the Internet’s role in legal practice. (113) Similarly, electronic mail allows lawyers to quickly update clients on recent developments in their cases when time is of the essence. (114) And lawyers, especially those in large law firms, may not have much of a choice in the matter: some clients are demanding electronic access to the work generated on their behalf via an Intranet. (115) Law firms in London have leaped ahead of their United States counterparts in embracing the Internet in legal practice. (116)

Prognosticators are calling for legal practitioners to rethink their roles. Richard Susskind, a well-known technology law expert, notes, “[i]f clients can obtain a cheaper, quicker, better, or more convenient service through the Internet, then lawyers may find their traditional work under threat.” (117) Susskind is unequivocal in his outlook:

Will legal practice in its current form survive in this increasingly wired
world? When clients are invariably using online resources to run their
businesses and all other professions are transforming and dovetailing their
services accordingly (as we can already see happening), can we honestly
believe that those who want legal assistance will be content to carry on
with traditional one-to-one, across-the-desk, advisory legal service
delivered in the timehonoured, consultative fashion on an hourly-billing
basis? I am sure not. (118)

Non-Internet-savvy solo practitioners working on uncomplicated matters will be swept up by the proliferation of lawyers riding the Internet wave. (119)

Lawyers, however, possess a skill that laymen lack, even when aided by the most able Internet browsers in search of free legal information: they can judge the quality and cogency of legal information and filter out unnecessary, though perhaps relevant information. (120)

Are the lawyers who refuse to embrace the Internet’s intrusion doomed? The technology surge and its infringement on legal practice has an upside that is not discussed with much frequency, if it is discussed at all. That is, lawyers have an opportunity to impress upon their clients that they bring a personal touch to their interactions that the on-line purveyors of legal information lack. (121) Showing clients the “human face of law” (122) will be a refreshing change for many clients and, hopefully, lawyers as well.

(1.) E.g., DAVID A. BINDER & SUSAN C. PRICE, LEGAL INTERVIEWING AND COUNSELING 1 (1977).

(2.) R. Scott Simon, Note, Searching for Confidentiality in Cyberspace: Responsible Use of E-mail for Attorney-Client Communications, 20 U. HAW. L. REV. 527, 531 (1998).

(3.) “The Internet is the `world-wide network of networks that are connected to each other, using the [Internet Protocol] and other similar protocols.'” Nabil R. Adam et al., The Development and Practice of Law in the Age of the Internet, 46 AM. U. L. REV. 327, 332 n.10 (1996) (quoting ED KROL, THE WHOLE INTERNET USER’S GUIDE & CATALOG 509 (2d ed. 1994))

(4.) E.g., Mike Wilds, A Practitioner’s Guide to Free Legal Information on the Internet, 33 TULSA L.J. 463 (1997).

(5.) Catherine J. Lanctot, Attorney-Client Relationships in Cyberspace: The Peril and the Promise, 49 DUKE L.J. 147, 150 n.3 (1999) (citing figures which show that close to 66% of law firms in America were set up with Web sites in 1997, with Internet use in small firms surveyed by the American Bar Association jumping from 38% in 1996 to approximately 80% in 1999)

(6.) CLIFFORD STOLL, SILICON SNAKE OIL 79 (1996) (countering much of the hype surrounding the immensely popular technology). “Maybe it’s that I miss the closeness of a real letter or the warmth of a voice across the telephone line. My electronic screen just isn’t as friendly.” Id.

(7.) E.g., Charles Silver & Frank B. Cross, What’s Not to Like About Being a Lawyer?, 109 YALE L.J. 1443, 1443-46 (2000) (book review).

(8.) “An Intranet is an internal network of computers, servers, routers and browser software designed to organize, secure, distribute and collect information within an organization.” Scott S. Kokka, Property Rights on an Intranet, 3 J. TECH. L. & POL’Y 3, [paragraph] 3 (Spring 1998)

(9.) Suffice it to say that professionals who deal with the public, especially in what are often crisis situations, should possess excellent communication skills. Of course, satisfying the client does not always require an emphasis on communication skills. See infra text accompanying notes 46-47.

(10.) This Note will not shy away from questioning the presupposition that lawyers effectively communicate with their clients. Whether cyberspace counseling adds to or detracts from the calculus of the lawyer-client relationship will be a recurrent theme of this Note.

(11.) Amy Cortese, Here Comes the Intranet, BUS. WK., Feb. 26, 1996, at 76 (noting a market research company’s prediction that sales of Intranet server software were expected to increase from $476 million in 1995 to more than $46 billion in 1997, with a continued surge resulting in expected sales of $8 billion in 1998–quadruple the size of server business for the Internet)

(12.) Kokka, supra note 8, [paragraph] 3 (noting that Dr. Steven Telleen, then associated with the Amdahl Corporation, was first credited with using the term).

(13.) Id.

(14.) “A `firewall’ is a single boundary machine, or gateway, that connects an internal network to the Internet.” Adam et al., supra note 3, at 334 n.22. “The firewall protects the internal network from unauthorized intrusions and security attacks by blocking the passage of unauthorized messages.” Id.

(15.) Kokka, supra note 8, [paragraph] 3

(16.) Thyfault, supra note 8, at 15. A large pharmaceutical company linked three thousand employees on its Intranet, and the network did not require major upgrades in hardware since the task was accomplished simply by adding Web software to existing machines, all for $80,000. See id. Intranets also save companies money by reducing the paper needed to print documents that are now available electronically and viewable by all employees with access to the Intranet. Cortese, supra note 11, at 76

(17.) Cortese, supra note 11, at 76. “[M]ost Intranet Web sites are used for basic information sharing: publishing job listings, benefits information, and phone directories,” yet they are expected to be more fully utilized soon. Id. at 79. But see Good Fences Make for Lousy Intranets, BUS WK., Feb. 26, 1996, at 126 (“The ease of Intranets is tempting some executives to use them to communicate down rather than across. Endless streams of announcements about issues peripheral to today’s work and tomorrow’s product innovation clog the systems…. [I]ntranets can make for excellent command-and-control systems….”).

(18.) Cortese, supra note 11, at 77 (noting that an Intranet can dispose of the piles of paper that clutter offices by converting the information on those documents into electronic data accessible by other employees).

(19.) Gail Edmonson, One Electronic SOS Clinched the Deal, BUS. WK., Feb. 26, 1996, at 83 (noting that getting people to use the Intranet really comes down to changing behavior, which is no easy task)

(20.) Edmonson, supra note 19, at 83. Very few personnel are needed to run an Intranet, and many firms can get by with just one administrator. See id.

(21.) Charles Goldberg, Legal Issues Galore Surround Company Intranet Use, CORPORATE LEGAL TIMES, Mar. 1998, at 22. In the United States, the terms “encrypt” and “decrypt” are routinely used in discussions around data handling procedure, but in other countries, such terminology is seen as offensive because it denotes covert activity (i.e., burying data), and the terms “encode” and “decode” are preferable. See id.

(22.) Id.

(23.) Adam et al., supra note 3, at 349 (noting that Lotus Notes is superior to an Intranet in terms of functionality, yet the frequency with which Intranets are being used demonstrates their attractiveness as alternatives). Most important of all, Notes is not as cheap as Web software, and it requires more training for people to learn to use than does clicking on a blue link and knowing where the “back” button is. Cortese, supra note 11, at 77.

(24.) Adam et al., supra note 3, at 349

(25.) See, e.g., Interview with W. Preston Granbury, Corporate Counsel, Law Practice Excellence for the Law Division of Lucent Technologies, Inc., available in Using the Intranet to Achieve Law Practice Excellence, METRO. CORP. COUNS., Mar. 1999, at 26 [hereinafter Interview] (describing the company’s Law Division Web site which is operated solely by the Law Division members).

(26.) See generally Philip L. McGarrigle, Creating an Intranet Web Page, INTELL. PROP. TODAY, Sept. 1998, at 11 (explaining that the Web page the author had created for a former employer’s intellectual property division was for educational purposes only, that is, to educate employees about the company’s intellectual property rights, not to serve as a source of legal advice about intellectual property).

(27.) For a discussion of disclaimers on Internet legal advice sites, see infra notes 42-44 and accompanying text.

(28.) Cortese, supra note 11, at 76 (quoting Steven P. Jobs, CEO of NeXT Computer, Inc.).

(29.) Interview, supra note 25, at 26.

(30.) Of course, Lucent is not the only company to utilize Intranet technology. For example, Compaq Computer Corp. employees use the company’s Intranet to monitor their 401(k) plans, and Ford Motor Co. used an Intranet to connect design centers in Europe, Asia, and the United States to enable the completion of the Ford Taurus design. See Cortese, supra note 11, at 76.

(31.) Interview, supra note 25, at 28.

(32.) Id.

(33.) Id.

(34.) By enabling lawyers to communicate with each other, the Intranet site facilitates the practice of law. Note that this is different from, although it certainly does not exclude, the actual giving of legal advice on-line.

(35.) Interview, supra note 25, at 28.

(36.) As will be noted and discussed below, many websites provide answers to legal queries from a host of “lawyers, paralegals, and law students.” See infra note 42 and accompanying text.

(37.) In practice, many sites actually offer what is more rightly understood to be legal “advice,” but disclaimers warn that the information imparted is just that — information. This practice is discussed further directly below in the text and accompanying footnotes. Suffice it to say at this point that while the author does not agree with the use of the word “information” in this context, since the Internet operators who provide these services use that term, it is repeated here for purposes of consistency and clarity.

(38.) Newsgroups are discussion groups that list messages (sorted by topic) posted by the newsgroups’ subscribers. LAW & THE INTERNET: REGULATING CYBERSPACE 186 (Lilian Edwards & Charlotte Waelde eds., 1997).

(39.) Lanctot, supra note 5, at 151. A “listserv” is basically a mailing list, with queries posted to a central location (e-mail address) and then rerouted to the list’s subscribers. Id.

(40.) “Chat rooms” are on-line meeting places where people can communicate in “real time” (i.e., the messages, and the responses to them by others, are viewable almost instantaneously). Id. at 152. An example of a chat room is DivorceNet Chat, which has discussions about, of course, divorce. DivorceNet Chat, at http://www.divorcenet.com (last visited Mar. 13, 2001), cited in Lanctot, supra note 5, at 152 n.9. For a discussion of “instant messaging,” see infra notes 66-75 and accompanying text.

(41.) E.g., FreeAdvice.com, at http://www.freeadvice.com (last visited Mar. 13, 2001), cited in Lanctot, supra note 5, at 152 n. 12.

(42.) Lanctot, supra note 5, at 152. Examples of on-line legal disclaimers follow:
The purpose of Dear Esquire is to educate the public about legal options
that may exist. Dear Esquire is not intended to provide specific legal or
other professional advice upon which guests may rely. Posting of answers in
no way constitutes an endorsement by us of the information given by
individual attorneys, paralegals or law students. Guests are advised and
encouraged to seek the help of a competent legal professional in all
matters where specific legal advice and/or action may be required.

Legal dot Net — Dear Esquire, at http:// www. legal. net/ 1dn2/ dearesq.shtml (last visited Mar. 13, 2001).

You, the questioner/client, expressly agree to the following terms as a
condition to accepting the benefit of our legal services and receiving a
written e-mail response to your legal question:

You agree to ask a short legal question of 200 words or less and our
firm will provide a written e-mail response for the fee $25 (U.S.) which
will be billed to your credit card via our secure server.

Each question will be responded to within a reasonable time and although
both parties understand that an attorney/client relationship may be created
hereby, it is understood and agreed to that such relationship will
terminate upon the sending of our e-mail response to your e-mail address
and no further legal services or advice will be required. It is further
agreed to by you that the submission of your question shall not place upon
attorneys the duty to protect any statute of limitations or any other
rights on your behalf or cause attorneys to have a legal duty to take any
action on your behalf whatsoever, unless we agree in writing.

Representation by our firm as your attorneys shall only be for the
limited purpose of answering a single 200 word question in writing via
e-mail and we make [no] guarantees regarding our answer, only that
attorneys will use their best efforts and judgment to respond, given the
limited facts presented. Questioner/client agrees to waive all claims for
lack of confidentially which may occur via Internet communications and you
agree to accept the risk of asking the question and receiving our reply via
the Internet. You further understand and are advised that there is no
malpractice insurance for Internet advice.

By accepting these terms, you agree that you are interested in answers
according to the federal law of copyright, trademark and the music industry
and you understand that our general answer to [your] general question is
not intended to replace an in-person consultation or any further
representation that may be required.

You further agree to waive any conflict-of-interest that may arise in
the future from the use of this brief advice service. Such conflicts
include but are not limited to situations where you use this online service
to attempt to keep our firm from representing another client against you.
You warrant that you are not a member of any corporation or other business
organization or entity attempting to create such a conflict by asking your
legal question herein and you agree that any such conflict is hereby
waived. You further understand and agree that any attorney/client
relationship created herein will terminate upon your receipt of our e-mail
response and that the scope of our representation is limited to our
response to a short legal question on the federal law of copyright,
trademark & the music industry.

Law Offices of Richard P. Baker, P.A., Legal Services Agreement – Terms and Conditions, at http://www.legalquestion.com/ask-a-question-terms.html (last visited Mar. 10, 2001). This is not, as is obvious, an example of a “free legal advice” Web site.

(43.) Legal dot Net — Dear Esquire, at http:// www. legal. net/ 1dn2/ dearesq.shtml (last visited Mar. 13, 2001).

(44.) David A. Grossbaum, Casting Your Nets for Clients: Using the Internet to Attract Clients Has Its Risks, 87 A.B.A.J. 74 (2001) (noting the ultimate test of whether a lawyer-client relationship has been formed often hinges on the advisee’s reasonable understanding of the relationship). Historically, bar associations have decided that an attorney-client relationship is formed when something more than generalized legal advice is given. Lanctot, supra note 5, at 161.

(45.) AUSTIN SARAT & WILLIAM L.F. FELSTINER, AM. BAR FOUND., WORKING PAPER NO. 8723, LEGAL REALISM IN LAWYER-CLIENT COMMUNICATIONS 1 (1987) (quoting Martin Shapiro, On the Regrettable Decline of Law French, 90 YALE L.J. 1198, 1201 (1981)). The discussion throughout this paper will assume that lawyers are acting in their role as counselors or negotiators, as described in the quotation above, when communicating with others (either clients or, in the case of negotiations preparation, fellow attorneys) over Intranets.

(46.) Asking lawyers and clients to judge the effectiveness of lawyers’ communication skills may be a pipe dream. After all, while lawyers are easy enough to find in the yellow pages–“traditional” hard copy or cyberspace yellow pages–clients move and tend not to be “listed.” STEWART MACAULAY, LAWYER-CLIENT INTERACTION: WHO CARES AND HOW DO WE FIND OUT WHAT WE WANT TO KNOW? 32 (Disp. Processing Research Program, Working Paper No. 1984-4).

(47.) Id. at 34.

(48.) SARAT & FELSTINER, supra note 45, at 3.

(49.) Id.

(50.) Id. at 18. Sarat and Felstiner reviewed transcripts of lawyer-client conferences in divorce cases in Massachusetts and California over a thirty-three month period, and their findings about lawyer-client interactions form the proposition that clients’ perspectives on law are often not in tune with that of lawyers’. Id. at 21. Despite the difference in context between lawyer-client conversations around divorce versus, say, a sales department manager inquiring as to whether it is legally permissible to terminate an employee, the gap in what the client thinks the law allows and what the lawyer informs him the law actually allows will likely exist in both scenarios.

(51.) “Instant Interview is essentially an Intranet through which Jacoby & Meyers exchanges information with customers or clients. It supplements the widespread use of e-mail between clients and attorneys … allowing them to send, read, edit and return case documents quickly and cheaply.” Evelyn Apgar, So, Do I Have a Case?: Log On and We’ll See, N.J. LAW., Nov. 15, 1999, at 1 (noting the view of technology law expert Michael L. Prigoff)

(52.) Apgar, supra note 51, at 1.

(53.) Id.

(54.) Id.

(55.) Id.

(56.) Id.

(57.) Id.

(58.) Id.

(59.) Id.

(60.) Id.

(61.) Id.

(62.) Id. Again, it bears emphasizing that the criticism of the use of technology here as being an impersonal touch comes from a technology law expert, someone whom you would expect to be in favor of, not opposed to the exercise of technology.

(63.) Id. at 10.

(64.) Id.

(65.) Face-to-face and telephonic communications are to be considered traditional communication methods for the purpose of discussion in this Note.

(66.) See e.g., Hope Viner Samborn, Client on Line 1–and Online, A.B.A.J., Dec. 1999, at 79, 79.

(67.) Id. The service also allows you to create a “buddy list”–a listing of those people whose on-line presence you would like to track. When someone on your list is on-line, a box pops up with that person’s screen name in it so that you can then instant message that person and begin a chat session. Users can choose to block out certain names and even make themselves “unavailable” when on-line–sort of “like a `Do not disturb’ sign.” Id. The service is an invaluable means of saving on long distance charges since the cost of linking up on-line is usually that of a local call. Id.

(68.) Id.

(69.) Id.

(70.) Id.

(71.) Id.

(72.) Id.

(73.) Id. Again, through use of the “unavailable” feature, participants can remove themselves from involvement in any discussion. See supra note 67. This feature detracts from the advantage of real time communication, i.e., knowing that the person is available for discussion, and so it can almost be viewed as another excuse for the attorney who just does not want to be bothered. Admittedly, though, an attorney who was truly inattentive and unresponsive would probably never commit to using instant messaging in the first place, although his clients may not give him much say in the matter.

(74.) Id.

(75.) Id.

(76.) Joel B. Eisen, Are We Ready for Mediation in Cyberspace?, 1998 BYU L. REV. 1305.

(77.) Id. at n.1.

(78.) E.g., 4 AM. JUR. 2D Alternative Dispute Resolution [section] 16 (1995).

(79.) E.g., id. [section] 67 (discussing the reasons why confidentiality is wanted in alternative dispute resolution).

(80.) Eisen, supra note 76, at 1325.

(81.) Id. at 1326.

(82.) Id. at 1325-26.

(83.) Id. at 1326-29.

(84.) Apgar, supra note 51, at 1.

(85.) Id.

(86.) E-mail from Lauren E. Handler, Esq., Porzio Bromberg & Newman, to Jorge Amieva (Apr. 10, 2001, 14:59:41 EST) (on file with author).(87.) Apgar, supra note 51, at 1.

(88.) Id. (quoting Lauren E. Handler, a principal with the firm of Porzio Bromberg & Newman).

(89.) See supra notes 17-24 and accompanying text.

(90.) Clark D. Cunningham, Evaluating Effective Lawyer-Client Communication: An International Project Moving from Research to Reform, 67 FORDHAM L. REV. 1959, 1962 (1999). Sociological studies of lawyer-client meetings, observations by leaders of the bar, reports from lawyer disciplinary review boards, client focus groups, and academic literature all confirm the following:

alweys frequently fail to treat clients with respect, do not consider
the nature of interpersonal relations with clients to be an important
aspect of law practice, are motivated more by financial returns than by
professional values, are inaccessible and unresponsive, are poor
communicators, do not know how to deal with clients effectively, are
indifferent to clients’ feelings, and are indifferent to the pace of
clients’ legal affairs.

Id. at 1963 (citing William L.F. Felstiner, Professional Inattention: Origins and Consequences, in THE HUMAN FACE OF LAW 121, 124 (Keith Hawkins ed., 1997)).

(91.) E.g., Carolyn Elefant, Bridging the Gap: Connecting Through Technology, Even If Clients Aren’t up to Speed, N.J.L.J., Mar. 5, 2001, at 31. The author, a solo practitioner who praises the Internet’s capability of facilitating communication with clients, nonetheless recognizes the technology’s limitations when she comments on the utility of an extranet that would allow clients to access their accounts and obtain updates on their cases:

Quite frankly, when my clients call for information about their case, they
don’t just want a basic status report
their prospects of prevailing or they want to vent about the injustice of
our opponent or the system.

To date, I am unaware of any technology that can substitute for the
personal counseling sessions that come as part of the package when a lawyer
represents clients.

Id.

(92.) Cunningham, supra note 90, at 1963. Interestingly, the author posits that the law profession can learn a lot from the medical profession. He discusses the surveys through which hospitals measure patient satisfaction with their physicians. Some of the topics covered on one such survey include: does the doctor spend enough time with the patient, answer patient’s questions, listen to what the patient is saying, and explain the patient’s diagnosis to the patient’s satisfaction

(93.) MACAULAY, supra note 46, at 1-2 (noting that the privacy involved in attorney-client communications prevents researchers from eavesdropping and, nevertheless, that very few people are really interested in the relationship between lawyer and client).

(94.) Id. at 2.

(95.) FED. R. EVID. 501.

(96.) Upjohn Co. v. United States, 449 U.S. 383,389 (1981).

(97.) 8 WlGMORE, EVIDENCE [section] 2292 (McNaughton rev. ed. 1961).

(98.) See supra note 42.

(99.) ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 99-413 (1999).

(100.) MODEL RULES OF PROF’L CONDUCT R. 1.6(a) (1983).

(101.) ABA Comm. on Ethics and Prof’l Responsibility, supra note 99.

(102.) Id.

(103.) Id. (noting that RPC’s 1.1, 1.4(b), and 1.2(a) are relevant in determining whether to use a particular medium for transmitting information).

(104.) Id.

(105.) Id.

(106.) Id.

(107.) Id.

(108.) Admittedly, even non-lawyers may be governed by company policy that requires confidentiality

(109.) Goldberg, supra note 21, at 22 (“A related problem is that of license and nondisclosure agreements that restrict use of information to employees of the company and its affiliates. Even internal machines connected through an intranet can be accessed by non-employees. Companies routinely have on-site contractors with access to their systems.”).

(110.) Lucy Schlauch Leonard, Comment, The High-Tech Legal Practice: Attorney-Client Communications and the Internet, 69 U. COLO. L. REV. 851, 857-67 (1998) (describing how the secrecy of the message is jeopardized even before it’s dispatched since the message remains on the sender’s own computer once typed and is susceptible to interception by hackers)

(111.) Communication via cellular phones is notoriously susceptible to eavesdropping, yet this does not appear to have stopped lawyers from using them nor given them much cause to fear disciplinary action. Similarly, if someone wants to intercept your mail all that person has to do is tear open the letter–this is certainly easier than trying to access code on a computer, yet mail is considered a safe way to communicate.

(112.) “The filing of documents at a court or agency via e-mail, thereby enabling an attorney to file documents within minutes of completion without even leaving the office.” Elefant, supra note 91, at 31.

(113.) Id. (noting that electronic filing allows lawyers extra time to work on the case for which filings are being made).

(114.) Id. at 30 (noting the advantages where several clients are to be informed–sending one e-mail to all is far more convenient than faxing each party the information).

(115.) Jean Eaglesham, Law Firms Finally Wake up to Internet Possibilities, FIN. TIMES (London), May 3, 2000, at 16. The author notes that lawyers’ resistance to on-line document exchange is due to the realization that the more control clients have over the progress of their case, the easier it is to keep a running tally on their bill. Id.

(116.) Id. (noting the introduction of virtual deal rooms by the London firm of Allen & Overy, with its sophisticated on-line legal services, which also include virtual caserooms that provide for the on-line storage of case documents, all of which can be accessed at http://www.newchange.com)

(117.) SUSSKIND, supra note 3, at 46

(118.) SUSSKIND, supra note 3, at 110.

(119.) See id. at 46 (noting that the traditional model of lawyer-client interactions will necessarily survive in “high value, complex and socially significant, … as well as arcane, obscure or esoteric legal work”).

(120.) See Edwin H. Greenebaum, Is the Medium the Message? A Discussion of Susskind’s The Future of Law, 6 INT’L J. LEGAL PROF. 197, 201 (1999).

(121.) See id. (noting the importance of ensuring that lawyers serve as translators for their clients, so that they are educated on the law as it applies to their situation and not mystified by it).

(122.) See source cited supra note 90.

Jorge Amieva, J.D., Rutgers School of Law — Newark, January 2001