Can a lawyer set up an online law office to give legal information and advice nationwide, and what limits apply?

Plain-English summary

An attorney with a physical disability wished to approach online services about setting up an electronic law office to provide legal information and advice to people across the United States. The committee separated the inquiry into two scenarios: providing general legal information, and actually representing clients through the online service.

On the first, the committee concluded that maintaining an online presence solely to discuss legal topics generally, without giving advice or representing any particular client, is permitted, so long as the information is not false or misleading. It relied on its Opinions 90-37 and 91-04 (general legal information through seminars and educational programs) and noted other jurisdictions reach the same result for newspaper columns, radio shows, and tapes that do not give individualized advice.

On the second, the committee found that operating a law office through electronic media does not itself violate the rules, but the manner of practice raises several concerns. Advertising on online media reaches a universal audience including jurisdictions where the lawyer is not admitted, so Rule 7.2(a) requires the advertisement to identify the geographic limits of the lawyer's practice, or it omits a fact making it materially misleading under Rule 7.1(a). The lawyer must gather enough information to run a complete conflicts check and should consider Rule 3.6 (trial publicity). On confidentiality, even private electronic mail may be accessible to the online service's system operators, so Rule 1.6 is implicated; reasoning by analogy to cellular-telephone opinions from other jurisdictions, the committee concluded that unless confidentiality of online communications can be assured, representing or communicating with a client over electronic media may violate Rule 1.6 absent an express client waiver.

Currency note

This opinion was issued in 1994, before the South Carolina Bar's adoption of the 2005 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could the lawyer post general legal information online?

A: The committee concluded yes, where the lawyer gives general information rather than advice to a particular client, provided nothing is false or misleading.

Q: What advertising concern does a nationwide online presence raise?

A: Because the audience is universal, Rule 7.2(a) requires identifying the geographic limits of the lawyer's practice; omitting that makes the advertisement materially misleading under Rule 7.1(a).

Q: Why is confidentiality a problem online?

A: The committee noted that the online service's operators may access communications, so unless confidentiality can be assured, representing or communicating with a client electronically may violate Rule 1.6 absent an express waiver.

Background and rules framework

The opinion drew on Rule 1.6 (confidentiality), Rules 7.1, 7.2, and 7.3 (communications, advertising, and solicitation), and Rule 3.6 (trial publicity), together with multijurisdictional-practice concerns about advertising into states where the lawyer is not admitted. The committee relied on its Opinions 90-37 and 91-04 and on opinions from other jurisdictions. The South Carolina rule numbers correspond to the like-numbered Model Rules as they existed in 1994.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.6 / Model Rule 1.6: confidentiality of information.
• South Carolina RPC 7.1 / Model Rule 7.1: false or misleading communications (Rule 7.1(a)).
• South Carolina RPC 7.2 / Model Rule 7.2: advertising and geographic-limit disclosure (Rule 7.2(a)).
• South Carolina RPC 7.3 / Model Rule 7.3: direct contact with prospective clients.
• South Carolina RPC 3.6 / Model Rule 3.6: trial publicity.

Other opinions cited:

• SC Bar Adv. Ops. 90-37, 91-04: general legal information through seminars and educational programs.
• Rhode Island Adv. Op. 93-9; Oregon Adv. Op. 1991-107; Iowa Adv. Op. 91-16; Illinois Adv. Op. 94-4: general public legal information in other media.
• Massachusetts Adv. Op. 94-5; New York City Adv. Op. 1994-11; New Hampshire Adv. Op. 1991-92/6: confidentiality of cellular-telephone communications.

See also

• SC Bar Ethics Op. 94-26: Direct-Mail Brochures and Solicitation
• SC Bar Ethics Op. 94-11: Collecting Unpaid Legal Fees

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-94-27/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 94-27

Attorney with a physical disability wishes to approach one or more on-line services about the feasibility of setting up an electronic law office for the purpose of providing legal information and advice to persons across the United States. There is no such service available at this time via electronic media.

Question:
Would such a service violate the South Carolina Rules of Professional Conduct? If such a service is ethical, what limitations and conditions would apply?

Summary:
Participation on general discussions on legal topics via electronic media is permissible. However, the practice of law via electronic media creates several issues that may violate the South Carolina Rules of Professional Conduct.

Opinion:
Several of the South Carolina Rules of Professional Conduct are implicated by the factual scenario set forth.

The question presents two distinct scenarios which must be analyzed. The first is the providing of legal information generally, such as through participation in educational and informational programs. The second is the representation of clients via the electronic media.

To the extent that the attorney maintains a presence on electronic media solely for the purpose of discussing legal topics generally, without the giving of advice or the representation of any particular client, this practice would be permitted. The committee has previously discussed similar issues in Advisory Opinions 90-37, in which the committee opined that a lawyer could furnish general legal information to members of the public through educational seminars, provided the information provided does not contain any false or misleading information. Rule 7.3. Similarly, in Advisory Opinion 91-04, the committee stated that participation in legal education programs and the provision of materials to members of the public in connection with an educational program is permitted.

Other 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. Rhode Island Ethics Advisory Opinion No. 93-9 (newspaper advice column on law-related topics); Oregon Advisory Opinion No. 1991-107 (distribution of audio or video tapes to members of the public which provide general legal information is not the practice of law and does not violate the model rules); Iowa Advisory Opinion No. 91-16 (a lawyer may participate in a local estate planning group and be included in a list of sponsors of the event which is publicized in brochures mailed to the public); Illinois Advisory Opinion No. 94-4 (law firm may participate with health care organization in distributing brochures discussing living wills and powers of attorney).

The attorney also seeks an opinion on the propriety of representing clients exclusively through contacts from the on- line service. The operation of a law office via electronic media does not, in itself, violate any provision of the rules. However, the manner in which the practice of law occurs raises several issues of concern.

The attorney is subject to restrictions set forth in Rule 7.1, 7.2 and 7.3 regarding communication, advertising of services, and direct contact with prospective clients. Since a public advertisement on electronic media is necessarily available to a universal audience, the attorney will be placing advertising designed to reach potential clients in jurisdictions in which he is not admitted to practice. Under Rule 7.2(a), any notice or advertisement disseminated public media must clearly identify the geographic limitations of the lawyer's practice, so that it is clear that he may not practice law except in those states in which is he admitted to practice. Otherwise, the advertisement will "omit a fact necessary to make the statement considered as a whole not materially misleading." Rule 7.1(a).

The attorney must obtain sufficient information to identify his client in order to make a complete conflicts inquiry. He should also consider the provisions of Rule 3.6 regarding trial publicity.

The attorney must consider his ability to engage in privileged communications with his client via electronic media. Even assuming that such communications occurred through private electronic mail rather than through public notices on electronic bulletin boards, the very nature of on-line services is such that the system operators of the on-line service may gain access to all communications that occur on the on-line service. Thus, the confidentiality requirements of Rule 1.6 are implicated by any confidential communication which occurs across electronic media, absent an express waiver by the client.

While no authorities directly on point have been located, the committee finds that prior discussions of confidential communications via cellular telephone have applicability here by way of analogy. The Ethics Advisory Committees of at least three jurisdictions have stated that a lawyer should not use a cellular telephone to discuss confidential information with clients, absent informed client consent, where there is a risk the conversations may be overheard. Massachusetts Advisory Opinion 94-5; New York City Advisory Opinion No.

1994-11; New Hampshire Advisory Opinion No. 1991-92/6 (this opinion suggests that confidential communications via cellular telephone with a client may be permissible if a scrambler of similar device is used.) Thus, it is the opinion of the committee that unless certainty can be obtained regarding the confidentiality of communications via electronic media, that representation of a client, or communication with a client, via electronic media, may violate Rule l.6, absent an express waiver by the client.