1. Brett J. Trout www.bretttrout.com © 2003 Brett J. Trout P.C.
e-Ethics
Brett J. Trout
© 2003 Brett J. Trout P.C.

2. New Ethical Considerations
Websites
Referral Services and LawLists
CLE online

3. Websites

4. Lawyer “Advertising” Subject to restrictions on
Dissemination methods DR 2-101(B)
Biographical content DR 2-101(C)
Fee information DR 2-101(D)
Practice areas DR 2-101(E)

5. Lawyer “Advertising” Subject to restrictions on
Recommendations re institution of litigation DR 2-101(F)
Designation as legal clinic or center DR 2-101(G)
Size of Disclosures DR 2-101(H)

6. Not “Advertising”
Communications or solicitations for business between lawyers
Communications between a lawyer and an existing or former client, provided the lawyer does not know, or have reason to know the attorney-client relationship has been terminated

7. Not “Advertising”
Communications by a lawyer that are in reply to a request for information by a member of the public that was not prompted by unauthorized advertising by the lawyer

8. Old Rules Website=Advertising Prior to February 15, 2002
Websites had to comply with:
DR (Advertising)
DR (Description of Practice Area)

9. New Rules Hyperlinked webpages ≠ Advertising
If your Homepage complies
Hyperlinked webpages no longer subject to:
DR (except (D) and (F))
DR 2-105

10. New DR 2-101
Information available through a hyperlink on a lawyer’s Web site shall not be considered advertising subject to DR and DR 2-105

11. New DR 2-101
A lawyer or law firm hosting a site on the World Wide Web shall display any notice required by these rules notice on the website’s homepage

12. New DR 2-101(B)(5)(b)
Whenever rules require a disclosure or notice, the lawyer hosting the website on the WWW shall display the required disclosure or notice on the website’s homepage

13. Notice no longer required
The determination of the need for legal services and the choice of a lawyer are extremely important decisions and should not be based solely upon advertisements or self-proclaimed expertise. This disclosure is required by Rule of the Supreme Court of Iowa.

14. Notice no longer required
Memberships and offices in legal fraternities and legal societies, technical and professional licenses, and memberships in scientific, technical and professional associations and societies of law or field of practice does not mean that a lawyer is a specialist or expert in a field of law, nor does it mean that such lawyer is necessarily any more expert or competent than any other lawyer. All potential clients are urged to make their own independent investigation and evaluation of any lawyer being considered. This notice is required by rule of the Supreme Court of Iowa." 

15. New Rules Homepage Still must comply with disclosure requirements
DR 2-101(D) Fees
DR 2-101(F) Institution of Litigation

16. Allowable Fee Information DR 2-101(D)
Initial Consultation Fee
Availability of Fee Schedule
Contingent Fee Schedule-Must disclose
If % is before or after costs
Client liable for costs win or lose

17. Allowable Fee Information DR 2-101(D)
Fixed fee or fee range
Must state Only if within described services
Must offer fee until new publication issues or 90 days

18. Institution of Litigation
If communication seeks to advise institution of litigation
Must state bringing case solely to harass or coerce settlement could be illegal and could lead to liability for malicious prosecution or abuse of process

19. Online Audio DR 2-101(B)(5) Single non-dramatic voice
Not voice of the attorney
No other background sound

20. Online Video
DR 2-101(B)(5)
No visual display other than that allowed in print as articulated by the announcer

21. Online Audio/Video Appears to apply only to Homepage Hyperlinked pages
Not “advertising”
Apparently not restricted in this manner

22. Articles and Other Materials
Not on Homepage
DR 2-104(A)(4)
Lawyer may speak or write publicly on legal topics
Must not emphasize lawyer’s own professional experience or reputation
Must not undertake to give individual advice

23. Record Retention DR 2-101(B)(6)
Lawyer shall preserve a copy of all information placed upon the World Wide Web for at least three years
Record names and dates of medium through which material appeared

24. Optional Notices Website information does not constitute legal advice
Unsolicited s
Non-confidential
Do not create attorney-client relationship

25. Optional Notices
Do not rely upon website information without independent verification as to its accuracy and timeliness
Acknowledging accessing webpages is a request for information

26. Take Home Homepage is advertising Keep it simple
Include Menu for access to more information
Nothing unverifiable, emotional or relating to quality of legal services

27. Take Home Webpages Keep Copies Do not give specific legal advice
Do not create attorney/client relationship
Keep Copies
At least three years
Record dates and medium

29. Types of email Non-sensitive information Sensitive information
No unique restriction on communication
Sensitive information
Lawyer shall not knowingly reveal a confidence or secret of a client DR 4-101
Must obtain written client acknowledgement of risk of violating DR 4-101
Must obtain written consent from client to sensitive information

30. Non-Sensitive Information
Ethics Opinion 96-33
Pure exchange of information or legal communication with clients is an exception to Homepage regulation

31. Ethics Opinion 96-33 Sensitive material transmitted via email
Must have written acknowledgment by client of the risk of violation of DR 4-101
Acknowledgment must include consent
Must be protected as agreed between counsel and client.

32. Sensitive Material Question of fact Ethics Opinion 96-33
Determined on a case by case basis

33. Sensitive Material DR 4-101
Minimal Test
Information gained in the professional relationship
disclosure of which would be embarrassing to client
disclosure of which would likely be detrimental to the client or
that client has requested be held inviolate

34. Sensitive Material Client’s opinion alone insufficient
Client's judgment should be augmented by counsel's independent judgment
Best guideline would favor the most strict standards.

35. emailing Sensitive Material
This strategy not specifically approved
Send client initial non-sensitive
Include text of DR 4-101
Include written statements in
Client acknowledges risking violating DR 4-101
Client consents to of sensitive information over the Internet

36. emailing Sensitive Material
Request client
Read and respond
Not send sensitive information in response
Respond with “I agree” in subject line
Store client response
Digital back up
Hard copy

37. Encryption Highly sensitive information
Reason to believe higher likelihood of interception
Defendant has demonstrated capability
Others may read
Client’s Employees
Client’s IT administrator

38. Optional Header for All Client email
The following and associated attachments (if any) are intended solely for use by the above-identified party. If you are not the intended recipient, please do not read, copy, store, disclose or utilize this communication in any manner. If you are not the intended recipient, please reply to this , stating you received this in error before deleting the and any attachments from your system. Thank you.

39. Storage and Destruction
Back-up all critical s
Coordinate destruction with other document destruction programs
Make sure deleted is deleted

40. Referral Services and LawLists

41. Referral Services ≠ Impermissible
LawLists = Permissible

42. DR 2-103
Lawyers cannot recommend employment of themselves, their partners, or associates, as a private practitioner, to a non-lawyer who has not sought advice regarding employment of a lawyer.

43. DR 2-103
Lawyers cannot compensate or give anything of value to a person or organization to recommend or secure the lawyer’s employment by a client, or as a reward for having made a recommendation resulting in the employment by a client

44. DR 2-103
Lawyers shall not request a person or organization to recommend or promote the use of the lawyer’s services or those of a partner or associate, or any other lawyer affiliated with the lawyer’s firm, as a private practitioner

45. Prohibited Referral Services
Attorney Find, Inc
Ask the Expert 02-04
Lawpages.com 00-07
ACEPA 00-03
LAW PHONE 89-42
Lawstar 97-16

46. Non-monetary fees also prohibited
Giving “one hour free” coupon 00-09
Giving “$25 off title opinion” coupon 99-15
Collecting fees for referring clients to registered investment adviser 99-04
Allowing client to advertise your name
94-22

47. Allowed Referral Services
Iowa Bar Association DR 2-103(C)(1)
Better Business Bureau referral program 95-26

48. Law Lists DR 2-101(C)
No rule prohibits inclusion in reputable law lists and law directories intended primarily for the use of the legal profession whether in print or online

49. Law Lists DR 2-101(C)
A law list is "intended primarily for the use of the legal profession" if it does not act as a client referral service or engage in active marketing to the lay public.

50. Reputable Legal Directory ICPR
Contains a list of lawyers or firms
Designated geographical areas
Only information permitted under DR 2-101

51. Reputable Legal Directory ICPR
Lawyers’ information presented in same size and type
Information presented in a dignified manner
Sole purpose is to assist lay-persons and lawyers in selecting a lawyer in the geographical area which it covers

52. Fee-based Directory Not reputable unless:
Listing available to every practicing lawyer in the geographical area
Listing available on the same terms and conditions as every other lawyer in the area.

53. Fee-based Directory Always permissible if:
Received the formal written approval of the Iowa Supreme Court Board of Professional Ethics and Conduct; or
Received certification of the Law List Committee of the ABA

54. Continuing Legal Education

55. CLE DR 2-105(B)

56. For Each Field of Practice
100 hours practicing in that area
10 percent of practice of law in that area
10 hours of CLE in that field
Must report in writing which CLE applies to which area of practice

57. Practice Limited to Practicing Primarily in
400 hours practicing in that area
40 percent of practice of law in that area
15 hours of CLE in that field

58. Hardship Extension
Must use Commission forms
No more than six months

59. Iowa Online CLE Effective July 1, 2002
Up to six hours per calendar year
Must be interactive

60. Iowa Online CLE Live with online discussion forum; or
Computer-based transmission
May be prerecorded
Must be interactive

61. Must be Interactive Not defined in rule Determined by Commission
Definition may vary over time
Interactive forum
Must review all prior questions and answers
Must answer new questions within two business days

62. Substantiation Requirement
Certificate of Completion
Activity ID
Signed
Dated
Attach to CLE Report

63. Additional Links
Ethics Opinions

64. Additional Links
Standards of Professional Conduct

65. Additional Links
Code of Professional Responsibility

66. Brett J. Trout www.bretttrout.com
Thank You
Brett J. Trout