Re-conceptualizing the relationship between legal ethics and technological innovation in legal practice: From threat to opportunity

Fordham Law Review

Volumn 67, Issue 5, 1999, Pages 2659-2686

  Zorza, Richard ^a  

^a NONE

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EID: 0033418513     PISSN: 0015704X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (114)

1. The author's summary of the seven technology revolutions may be accessed at Richard Zorza, New Technologies with Implications (visited Feb. 19, 1999) 〈http:// www.equaljustice.org/visions/TechConf/01newte.htm〉. The seven revolutions and their implications for poverty practice are described in summary as follows: One: The Access Revolution - Cable Modems, Power Line Modems, High Bandwidth, Regular Phone Lines - Will Provide Broader, Faster and Cheaper Access. . . . . Two: The Interface Revolution - Voice Recognition and Synthesis Software, Virtual Reality Environments - Will Make Connection To Technology Far Easier. . . . . Three: The Information Retrieval Revolution - Web Editors and Search Engines For Multi-Media, Push Technology and Intelligent Search Agents -Will Make It Far Easier to Find Information and Change the Way We Think About Information. . . . . Four: The Presence Revolution - Ultra-high Bandwidth, Real-time Video and Working Conferencing "Environments" Such As ICQ - Will Break Down Geographically Defined Ways of Thinking. . . . . Five: The Analysis Revolution - Instantaneous Statistical Analysis, Artificial Intelligence, and Real Time Simulation Software - Will Give Us the Power to Understand and Shape Our World. . . . . Six: The Identity Revolution - Security and User Authentication Innovations - Will Remove Many of the Barriers to Transactions at a Distance. . . . . Seven: The Mobility Revolution - Mobile Computing With Radio Connection to the Net and PDAs - Will Enable Us to Be Connected Wherever We Are, Increasing Our Effectiveness, and Our Clients Ability to Be in Touch When They Need Us. Id. A more general and theoretical analysis of the effect on lawyers appears in M. Ethan Katsh, Law in a Digital World (1995). Katsh emphasizes changes in communication, see id. at 21-49, and the structure of legal information, see id. at 65-91. Neither the word "ethics" nor the phrase "professional responsibility" appears in the index to this work. See id. at 291-94.
2. The urgency of the lack of legal assistance for those of limited means is overwhelmingly documented. See, e.g., Russel Engler, And Justice for All - Including the Unrepresented Poor: Revisiting the Roles of the Judges, Mediators, and Clerks, 67 Fordham L. Rev. 1987, passim (1999) (discussing barriers faced by unrepresented litigants inside and outside the courthouse).
3. As a general matter, references throughout this Response to "the rules" denote the general body of disciplinary enactments that have grown up over the years. Where there are conflicts between those enactments, the word refers to the Model Rules of Professional Conduct (1998).
4. For a careful discussion of these issues in one context, see Mary Helen McNeal, Redefining Attorney-Client Roles: Unbundling and Moderate Income Elderly Clients, 32 Wake Forest L. Rev. 295 (1997). Professor McNeal's paper is broadly sympathetic to the goals of those seeking to provide broad assistance, but rightly insists that these ethical issues can not be avoided. See id. at 303-05. She explicitly articulates questions at which others have only hinted in more informal forums. See id. at 308-11. For a proposal intended to alleviate some such concerns, see John S. Jenkins, Speakers Propose Model Rules Amendments to Ethics Commission, Prof. Law., Spring 1998, at 10, 12 (recommending to the Commission on Evaluation of the Rules of Professional Conduct that Model Rule of Professional Conduct Rule 1.2 [C] be modified by adding language that "[l]imited objectives may be particularly appropriate in the case of moderate income clients" and that the comment thereto be similarly enhanced). For an example of a rules change that illustrates how intense are the fears around these issues, see In re Amendments to the Florida Family Law Rules of Procedure (Self Help), No. 93-319, 1998 WL 892680 (Sup. Ct. Fla. Dec. 3, 1998) (adopting rules permitting the establishment of court-approved family self-help programs). The Court engaged in a detailed discussion of the problem of staff directing litigants to applicable statutes and emphasized the need for staff of such programs not to "advise a litigant as to which rule or statute applies because that would constitute the [unauthorized] practice of law," id. For ethical opinions in the non-court "brief service and advice" context, which reflect this disquiet, see infra note 22.
5. For a careful discussion of these issues in one context, see Mary Helen McNeal, Redefining Attorney-Client Roles: Unbundling and Moderate Income Elderly Clients, 32 Wake Forest L. Rev. 295 (1997). Professor McNeal's paper is broadly sympathetic to the goals of those seeking to provide broad assistance, but rightly insists that these ethical issues can not be avoided. See id. at 303-05. She explicitly articulates questions at which others have only hinted in more informal forums. See id. at 308-11. For a proposal intended to alleviate some such concerns, see John S. Jenkins, Speakers Propose Model Rules Amendments to Ethics Commission, Prof. Law., Spring 1998, at 10, 12 (recommending to the Commission on Evaluation of the Rules of Professional Conduct that Model Rule of Professional Conduct Rule 1.2 [C] be modified by adding language that "[l]imited objectives may be particularly appropriate in the case of moderate income clients" and that the comment thereto be similarly enhanced). For an example of a rules change that illustrates how intense are the fears around these issues, see In re Amendments to the Florida Family Law Rules of Procedure (Self Help), No. 93-319, 1998 WL 892680 (Sup. Ct. Fla. Dec. 3, 1998) (adopting rules permitting the establishment of court-approved family self-help programs). The Court engaged in a detailed discussion of the problem of staff directing litigants to applicable statutes and emphasized the need for staff of such programs not to "advise a litigant as to which rule or statute applies because that would constitute the [unauthorized] practice of law," id. For ethical opinions in the non-court "brief service and advice" context, which reflect this disquiet, see infra note 22.
6. For a careful discussion of these issues in one context, see Mary Helen McNeal, Redefining Attorney-Client Roles: Unbundling and Moderate Income Elderly Clients, 32 Wake Forest L. Rev. 295 (1997). Professor McNeal's paper is broadly sympathetic to the goals of those seeking to provide broad assistance, but rightly insists that these ethical issues can not be avoided. See id. at 303-05. She explicitly articulates questions at which others have only hinted in more informal forums. See id. at 308-11. For a proposal intended to alleviate some such concerns, see John S. Jenkins, Speakers Propose Model Rules Amendments to Ethics Commission, Prof. Law., Spring 1998, at 10, 12 (recommending to the Commission on Evaluation of the Rules of Professional Conduct that Model Rule of Professional Conduct Rule 1.2 [C] be modified by adding language that "[l]imited objectives may be particularly appropriate in the case of moderate income clients" and that the comment thereto be similarly enhanced). For an example of a rules change that illustrates how intense are the fears around these issues, see In re Amendments to the Florida Family Law Rules of Procedure (Self Help), No. 93-319, 1998 WL 892680 (Sup. Ct. Fla. Dec. 3, 1998) (adopting rules permitting the establishment of court-approved family self-help programs). The Court engaged in a detailed discussion of the problem of staff directing litigants to applicable statutes and emphasized the need for staff of such programs not to "advise a litigant as to which rule or statute applies because that would constitute the [unauthorized] practice of law," id. For ethical opinions in the non-court "brief service and advice" context, which reflect this disquiet, see infra note 22.
7. See Unauthorized Practice of Law Comm. v. Parsons Tech., Inc., No. Civ. A. 3:97CV-2859H, 1999 WL 47235 (N.D. Tex. Jan. 22, 1999) (holding that the Texas distribution of Quicken Family Lawyer software violated the state's prohibition of the unauthorized practice of law). Regardless of its ultimate status on appeal, the district court's decision is likely to have limited direct legal effect beyond the boundaries of Texas. In reaching its result, the court rejected the argument that application of the statute prohibiting unauthorized practice of law required there be "a personal relationship between the party charged with the unauthorized practice of law and the party who benefits from the 'advice,'" even though defendant urged that "this is the logic of almost every court to consider the issue." Id. at *6. The district court explicitly relied on the prior Texas case law which articulates the extreme position that the statute prohibits the sale of "a manual entitled 'You and Your Will: A Do-It-Yourself Manual.'" Id. at 5 (citing Fadia v. Unauthorized Practice of Law Comm., 830 S.W.2d 162 (Tex. App. 1992); Palmer v. Unauthorized Practice of Law Comm., 438 S.W.2d 374 (Tex. App. 1969)). Moreover, the district court's holding that the prohibition is conclusively valid because it is content neutral, see id. at *8 (citing United States v. O'Brien, 391 U.S. 367 (1968)), seems rather untenable insofar as the prohibition is targeted at self-representation - a constitutionally recognized value. See Bates v. State Bar, 433 U.S. 350, 351-52 (1977) (noting "that most legal services may be performed legally by the citizen for himself"); Faretta v. California, 422 U.S. 806, 807 (1975) (recognizing the Sixth Amendment right to represent oneself at criminal trial).
8. See Recommendations of the Conference on the Delivery of Legal Services to Low-Income Persons, 67 Fordham L. Rev. 1751, Recommendation 48, at 1774 (1999) [hereinafter Recommendations] ("Recent experiments in the delivery of legal services - some but not all driven by technology - suggest the possibility of significant increases in access to services, provided the rules governing the practice of law are not interpreted to inappropriately narrow the delivery and evolution of services.").
9. An emerging movement in legal services seeks to develop far tighter bonds and partnerships between legal services organizations and community groups in an attempt to meet the overwhelming unmet need. See Tanya Nieman, Using Technology to Create Community and Implement Holistic Approaches, (visited Feb. 19, 1999) 〈http://www.equaljustice.org/visions/TechConf/16-tanya.htm〉. See generally Paula Galowitz, Collaboration Between Lawyers and Social Workers: Re-Examining the Nature and Potential of the Relationship, 67 Fordham L. Rev. 2123, 2147 (1999) (considering the arguably analytically simpler situation that arises when the lawyer and social worker are in the same organization).
10. An emerging movement in legal services seeks to develop far tighter bonds and partnerships between legal services organizations and community groups in an attempt to meet the overwhelming unmet need. See Tanya Nieman, Using Technology to Create Community and Implement Holistic Approaches, (visited Feb. 19, 1999) 〈http://www.equaljustice.org/visions/TechConf/16-tanya.htm〉. See generally Paula Galowitz, Collaboration Between Lawyers and Social Workers: Re-Examining the Nature and Potential of the Relationship, 67 Fordham L. Rev. 2123, 2147 (1999) (considering the arguably analytically simpler situation that arises when the lawyer and social worker are in the same organization).
11. Specifically, courts are moving towards a technology-assisted court access agenda. See Jona Goldschmidt et al., Meeting the Challenge of Pro Se Litigation: A Report and Guidebook for Judges and Court Managers 76-78 (1998) (discussing the Quick Court System in Utah and Arizona); Engler, supra note 2, at 2001 & n.66. As to the belief that these initiatives should create natural partnerships with legal service providers whose institutional commitment to court access parallels that of the courts, see Richard Zorza & Joyce Klemperer, The Internet-Based Domestic Violence Court Preparation Project: Using the Internet to Overcome Barriers to Justice, 4 Domestic Violence Rep. (forthcoming 1999) (manuscript at 1, on file with the Fordham Law Review) (describing an Internet project developed in partnership among courts, domestic violence programs, and legal services programs). The evaluation of that project, conducted by the National Center for State Courts, emphasizes that the success of the project was closely related to the court, legal services, and community collaborations. See Zorza & Klemperer, supra (manuscript at 4).
12. Specifically, courts are moving towards a technology-assisted court access agenda. See Jona Goldschmidt et al., Meeting the Challenge of Pro Se Litigation: A Report and Guidebook for Judges and Court Managers 76-78 (1998) (discussing the Quick Court System in Utah and Arizona); Engler, supra note 2, at 2001 & n.66. As to the belief that these initiatives should create natural partnerships with legal service providers whose institutional commitment to court access parallels that of the courts, see Richard Zorza & Joyce Klemperer, The Internet-Based Domestic Violence Court Preparation Project: Using the Internet to Overcome Barriers to Justice, 4 Domestic Violence Rep. (forthcoming 1999) (manuscript at 1, on file with the Fordham Law Review) (describing an Internet project developed in partnership among courts, domestic violence programs, and legal services programs). The evaluation of that project, conducted by the National Center for State Courts, emphasizes that the success of the project was closely related to the court, legal services, and community collaborations. See Zorza & Klemperer, supra (manuscript at 4).
13. Among the problems that arise are the danger that court staff be perceived as practicing law, and the fear that courts will compromise their neutrality if they become associated with such projects.
14. Cf. Recommendations, supra note 6, Recommendatiions 47-64, at 1774-78 (setting forth specific proposals for dealing with issues of such limited legal assistance).
15. Many of the tactics being proposed and implemented assume the rapid spread of broad access to the Internet among even the poor. Some advocates have questioned the validity of the proposition. The author believes that in the relatively near future Internet access will be as widely available as cable television, and that any other assumption defeat our duty to protect the poor in, and take advantage of the opportunities offered by, a far more technologically integrated world. See generally Pew Research Ctr. for the People & the Press, Technology 1998: Summary (visited Feb. 19, 1999) 〈http://www.people-press.org/tech98sum.htm〉 (noting that the Internet audience is widening among demographic groups). Even if this assumption is overly optimistic with respect to home usage of the Internet, it is crystal clear that access to the Internet through libraries, work, and schools is accelerating exponentially. It is suggestive, although not determinative, that in a small unpublished survey of litigants in the Manhattan Housing Court conducted in the first half of 1998 by law students at Fordham Law School, 60% reported having some form of access to the Internet - although not necessarily that they were using it. See Memorandum from Walter Luers & Alejandro Forte, Fordham Law School, to the Fund for the City of New York (Apr. 2, 1998) (on file with the Fordham Law Review) (reporting survey results). In any event, the fact that access is increasing for all income and educational levels is beyond challenge. Advocates must prepare for that world when it comes. Moreover, the more we build systems that provide concrete help to those who have that access, the greater the incentive to provide such access and to develop the technologies that will support it for all regardless of technological and non-technological literacy.
16. Many of the tactics being proposed and implemented assume the rapid spread of broad access to the Internet among even the poor. Some advocates have questioned the validity of the proposition. The author believes that in the relatively near future Internet access will be as widely available as cable television, and that any other assumption defeat our duty to protect the poor in, and take advantage of the opportunities offered by, a far more technologically integrated world. See generally Pew Research Ctr. for the People & the Press, Technology 1998: Summary (visited Feb. 19, 1999) 〈http://www.people- press.org/tech98sum.htm〉 (noting that the Internet audience is widening among demographic groups). Even if this assumption is overly optimistic with respect to home usage of the Internet, it is crystal clear that access to the Internet through libraries, work, and schools is accelerating exponentially. It is suggestive, although not determinative, that in a small unpublished survey of litigants in the Manhattan Housing Court conducted in the first half of 1998 by law students at Fordham Law School, 60% reported having some form of access to the Internet - although not necessarily that they were using it. See Memorandum from Walter Luers & Alejandro Forte, Fordham Law School, to the Fund for the City of New York (Apr. 2, 1998) (on file with the Fordham Law Review) (reporting survey results). In any event, the fact that access is increasing for all income and educational levels is beyond challenge. Advocates must prepare for that world when it comes. Moreover, the more we build systems that provide concrete help to those who have that access, the greater the incentive to provide such access and to develop the technologies that will support it for all regardless of technological and non-technological literacy.
17. Suggestive and speculative scenarios that give a sense of the scope of this potential appear on the World Wide Web. See Michael Genz, Technology and Client Community Access to Legal Services (visited Feb. 15, 1999) 〈http://www.equaljustice. org/visions/TechConf/12-Client.htm〉; Julia Gordon, Technology Assists Representation: The Advocate Scenario (visited Feb. 19, 1999) 〈http://www.equaljustice.org/visions/TechConf/13-adv.htm〉 (providing a step-by-step discussion of how attorneys might use the Internet to assist in rendering legal services); John A. Tull, The Technologically Enabled Delivery System from the Perspective of Its Senior Management (visited Feb. 19, 1999) 〈http://www.equaljustice.org/visions/TechConf/14-dir.htm〉 (discussing implications of emerging information technologies from the perspective of a legal services program manager). These scenarios create very different relationships between lawyers and clients, very different divisions of labor between the two, as well as far closer partnerships between community organizations and legal service providers, and closer cooperation between lawyers and courts. Most generally stated, how these possibilities work out - whether ultimately to help or hinder clients - may depend most of all on the values and goals of management.
18. Suggestive and speculative scenarios that give a sense of the scope of this potential appear on the World Wide Web. See Michael Genz, Technology and Client Community Access to Legal Services (visited Feb. 15, 1999) 〈http://www.equaljustice. org/visions/TechConf/12-Client.htm〉; Julia Gordon, Technology Assists Representation: The Advocate Scenario (visited Feb. 19, 1999) 〈http://www.equaljustice.org/visions/TechConf/13-adv.htm〉 (providing a step-by-step discussion of how attorneys might use the Internet to assist in rendering legal services); John A. Tull, The Technologically Enabled Delivery System from the Perspective of Its Senior Management (visited Feb. 19, 1999) 〈http://www.equaljustice.org/visions/TechConf/14-dir.htm〉 (discussing implications of emerging information technologies from the perspective of a legal services program manager). These scenarios create very different relationships between lawyers and clients, very different divisions of labor between the two, as well as far closer partnerships between community organizations and legal service providers, and closer cooperation between lawyers and courts. Most generally stated, how these possibilities work out - whether ultimately to help or hinder clients - may depend most of all on the values and goals of management.
19. Suggestive and speculative scenarios that give a sense of the scope of this potential appear on the World Wide Web. See Michael Genz, Technology and Client Community Access to Legal Services (visited Feb. 15, 1999) 〈http://www.equaljustice. org/visions/TechConf/12-Client.htm〉; Julia Gordon, Technology Assists Representation: The Advocate Scenario (visited Feb. 19, 1999) 〈http://www.equaljustice.org/visions/TechConf/13-adv.htm〉 (providing a step-by-step discussion of how attorneys might use the Internet to assist in rendering legal services); John A. Tull, The Technologically Enabled Delivery System from the Perspective of Its Senior Management (visited Feb. 19, 1999) 〈http://www.equaljustice.org/visions/TechConf/14-dir.htm〉 (discussing implications of emerging information technologies from the perspective of a legal services program manager). These scenarios create very different relationships between lawyers and clients, very different divisions of labor between the two, as well as far closer partnerships between community organizations and legal service providers, and closer cooperation between lawyers and courts. Most generally stated, how these possibilities work out - whether ultimately to help or hinder clients - may depend most of all on the values and goals of management.
20. For a proposal intended to alleviate such concerns, see Jenkins, supra note 4, at 12, which describes attempts to modify Rule 1.2 (c) to ensure that the Rules do not inhibit access to justice for the poor.
21. Maryland Law On-Line and Pinetree Legal Services of Maine are national leaders at developing such sites and integrating them into broader service plans. See My Legal Assistant.com, Inc., Maryland Legal Resources for Pro Se Litigants (last modified Feb. 20, 1999) 〈http://www.marylandlawonline.com〉 [hereinafter Maryland Law Online]; Pinetree Legal Assistance (visited Feb. 19, 1999) 〈http://www.ptla.org〉; see also Maricopa County Online (visited Feb. 19, 1999) 〈http://www.maricopa.gov〉 (providing information about Maricopa County, including legal information).
22. Maryland Law On-Line and Pinetree Legal Services of Maine are national leaders at developing such sites and integrating them into broader service plans. See My Legal Assistant.com, Inc., Maryland Legal Resources for Pro Se Litigants (last modified Feb. 20, 1999) 〈http://www.marylandlawonline.com〉 [hereinafter Maryland Law Online]; Pinetree Legal Assistance (visited Feb. 19, 1999) 〈http://www.ptla.org〉; see also Maricopa County Online (visited Feb. 19, 1999) 〈http://www.maricopa.gov〉 (providing information about Maricopa County, including legal information).
23. Maryland Law On-Line and Pinetree Legal Services of Maine are national leaders at developing such sites and integrating them into broader service plans. See My Legal Assistant.com, Inc., Maryland Legal Resources for Pro Se Litigants (last modified Feb. 20, 1999) 〈http://www.marylandlawonline.com〉 [hereinafter Maryland Law Online]; Pinetree Legal Assistance (visited Feb. 19, 1999) 〈http://www.ptla.org〉; see also Maricopa County Online (visited Feb. 19, 1999) 〈http://www.maricopa.gov〉 (providing information about Maricopa County, including legal information).
24. See Maryland Law Online, supra note 14; Legal Services Online (visited Feb. 19, 1999) 〈http://www.fcny.org/gadvdemo/page01.htm〉 (displaying the gateway page to the Georgia domestic violence court preparation system); Domestic Violence Project (visited Feb. 19, 1999) 〈http://www.fcny.org/nydvdemo/〉 (displaying similar system for New York, optimized for touch screen use).
25. See Maryland Law Online, supra note 14; Legal Services Online (visited Feb. 19, 1999) 〈http://www.fcny.org/gadvdemo/page01.htm〉 (displaying the gateway page to the Georgia domestic violence court preparation system); Domestic Violence Project (visited Feb. 19, 1999) 〈http://www.fcny.org/nydvdemo/〉 (displaying similar system for New York, optimized for touch screen use).
26. See Maryland Law Online, supra note 14; Legal Services Online (visited Feb. 19, 1999) 〈http://www.fcny.org/gadvdemo/page01.htm〉 (displaying the gateway page to the Georgia domestic violence court preparation system); Domestic Violence Project (visited Feb. 19, 1999) 〈http://www.fcny.org/nydvdemo/〉 (displaying similar system for New York, optimized for touch screen use).
27. For example, an on-line service run by Richard S. Granat states: We offer legal advice primarily by EMAIL and telephone. The advantage of using EMAIL, as compared to a telephone call, is that you can compose your thoughts and write out a more complete history of your case. You can also attach documents to an EMAIL message and send it to us for review. The cost of our EMAIL service is $35.00 per incident or question. Richard S. Granat, Legal Advice Services (visited Feb. 19, 1999) 〈http://www.granat. com/advice2.html〉 (emphasis in original).
28. See, e.g., Colorado Supreme Court Rules Comm., Proposed Amendments Concerning Limited Representation of Pro Se Parties, Colo. Law., Aug. 1998, at 101 (presenting proposed rules, apparently not adopted, that would have permitted attorneys to prepare pleadings which would have been required to disclose on their face the assistance and identity of the attorney, without that preparation or statement constituting an entry of an appearance for other purposes).
29. See Margaret Martin Barry, Accessing Justice: Are Pro Se Clinics a Reasonable Response to the Lack of Pro Bono Legal Services and Should Law School Clinics Conduct Them?, 67 Fordham L. Rev. 1879, 1881 (1999).
30. Strictly speaking, this list includes at least three kinds of projects, (1) those that provide "pure" information, in the sense that they do not purport to customize or focus that information into a specific context; (2) those that produce a product that is customized to the particular facts, but do not provide individualized advice; and (3) those that offer completely individual service, but not in the traditional context. The "pure" information sites offer the advantage of assisting the client to take on a more empowered role in his or her dealings with the professional, but do not necessarily raise all of the ethical concerns surrounding (2) and (3).
31. See Legal Servs. Corp., Office of the Inspector General, Increasing Legal Services Delivery Capacity Through Information Technology 18-21 (1996) [hereinafter Increasing Delivery Capacity] (describing these systems in detail); Wayne Moore & Monica Kolasa, AARP'S Legal Services Network: Expanding Legal Services to the Middle Class, 32 Wake Forest L. Rev. 503, 526-34 (1997) (same). For a general discussion of the unauthorized practice of law issues deriving from such practice, see generally Recommendations, supra note 5, Recommendations 25-46, at 1759-74 (setting forth the recommendations of the Working Group on the Use of Non-Lawyers).
32. See Increasing Delivery Capacity, supra note 20, at 19.
33. See McNeal, supra note 4, at 311-18. In the related fee-for-service context, the following ethics opinions address related ethical issues: Committee on Att'y Adver., New Jersey Supreme Court, Opinion 17 (concluding that establishment of a "900" service is not per se unethical, but that proposed disclaimer language that "[y]ou should consult with an attorney of your choice prior to taking any action based on the answer or advice provided" would be "in contravention of established law and public policy"); Ethics-Advisory Comm., Kansas Bar Ass'n, Ethics Op. 92-06 (1992) (concluding a "900" telephone service called "Dial-a-Lawyer" is not per se unethical, but that "the practice does lend itself to ethical abuse, especially fee-splitting between non-lawyers and lawyers, and attorneys must take great care to insure that such practices are well within the boundaries of [governing rules]"), available in 1994 WL 163257; Ethics Advisory Opinion Comm., Utah State Bar, Opinion 96-12, (concluding that such a system is not "per se unethical. However . . . all the ethical rules apply to that relationship" and distinguishing pro bono legal referral programs where legal topics, legal access, and legal service providers are discussed, but where no legal advice is rendered, no fee is charged, and any attorney-client relationship is disclaimed), available in 1997 WL 45137.
34. This dilemma is generally explored in McNeal, supra note 4, at 322-23. The applicable rule, Model Rules of Professional Conduct Rule 1.2 (1998), permits the client to agree to a restriction on the mode of representation. However, any limitation must be consistent with Rule 1.1. See id. cmt. 5. Rule 1.1 requires generally effective representation - thus a lawyer cannot ask a client to agree to limited representation if that will be ineffective.
35. For purposes of this discussion, one should acknowledge that this imposition is indeed undesirable. Of course, in one sense this ignores the fact that the market is already using its invisible hand to enforce such choices without any recourse for the vast majority of litigants and potential litigants. A client who cannot pay for anything that is available because only full representation is available has even less choice than one who can afford only brief service.
36. See McNeal, supra note 4, at 335.
37. See Model Rules of Professional Conduct Rule 1.6.
38. The governing Model Rules of Professional Conduct are 1.7, 1.8, and 1.9. This concern is not be confused with the related issue of imputed conflicts. There is debate among those who serve the poor as to whether application of imputed conflict rules in this context does more harm than good. Cf. Center for Prof'l Responsibility, American Bar Ass'n, Ethics 2000 Proposes Work Plan Issues to Be Considered, (visited Feb. 19, 1999) 〈http://www.abanet.org/cpr/wkpliss.html〉 (proposing Rule 1.9(a) and (b) to deal with former client conflicts).
39. This concern is governed by Model Rules of Professional Conduct Rule 1.1. It is also impacted by Rule 1.2, dealing with limitations on the means of representation. See id. Rule 1.2.
40. See id. Rule 1.16.
41. Model Rule of Professional Conduct 1.16 puts strong limitations on withdrawal from representation, by creating an assumption of continuing representation unless it is possible to withdraw "without material adverse effect on the interests of the client." Id. Rule 1.16(b). Withdrawal may also be appropriate under specified circumstances, including "other good cause for withdrawal." Id. Rule 1.16(b)(6). These values also find strong resonance in the legal services culture, in which craft pride and an intense desire to minimize the "ghettoization" of clients combine to cause legal services professionals to emphasize that there should not be one set of rules for the rich and another for the poor. It is the strong personal view of the author that the rules themselves should be stated neutrally with respect to the income level of the client, and even the market status of the legal service provider. However, the rules should be explicit in deciding whether to find a non-de minimis violation, taking into account both the alleged violator's purpose in adopting a challenged practice, and the context in which it occurs, as well as all efforts made to advance the values behind the rules. Thus, a legal services program that had adopted a challenged and ultimately disapproved method of assisting clients, but had done so to increase access to justice, without commercial benefit, and in an attempt, albeit unsuccessful, to meet the values of the rules, should be treated very differently from a commercial provider that cut ethical corners to maximize profits. See generally infra note 93 (discussing "state of mind" and "intent" defenses to violations of the Rules).
42. Both the Model Rules of Professional Conduct themselves, Model Rule 1.4, and an extensive literature endorse the role of client knowledge in advancing autonomy. The rules require an attorney to provide extensive information to the client both as a general matter, see Model Rules of Professional Conduct Rule 1.4, and in specific situations, see id, cmt. 1. See also Center for Prof'l Responsibility, American Bar Ass'n, Annotated Model Rules of Professional Conduct 35 (3d ed. 1996) [hereinafter Annotated Model Rules] (relating this obligation to the general obligation to exercise due care); id. at 34-37 (including a positive duty to advise clients, a duty to respond to requests for information, and an obligation to supervise employees to ensure that they communicate to the lawyer information that in turn must be communicated to the client). Moreover, the legal service literature and history place great emphasis on this value. See, e.g., Alan W. Houseman, Political Lessons: Legal Services for the Poor - A Commentary, 83 Geo. L.J. 1669, 1684 (1995) (noting that historically one of the five critical elements of legal services was that "legal services emphasized the right of clients to control decisions about the solutions to their problems").
43. The leading gateway for legal information is Cornell Law School's Legal Information Institute. See Legal Information Inst., Cornell Univ., Welcome to the Legal Information Institute (visited Feb. 19, 1999) 〈http://www.law.cornell.edu/index.html〉. This site has almost half a million "hits" a day. See Comments on Preliminary Draft of Re-conceptualizing the Relationship Between Legal Ethics and Technological Innovation in Legal Practice: From Threat to Opportunity from Thomas R. Bruce, Co- Director of the Legal Information Institute of Cornell Law School, to Richard Zorza, Vice President, Fund for the City of New York 8 (n.d.) [hereinafter Bruce Comments] (on file with the Fordham Law Review).
44. The leading gateway for legal information is Cornell Law School's Legal Information Institute. See Legal Information Inst., Cornell Univ., Welcome to the Legal Information Institute (visited Feb. 19, 1999) 〈http://www.law.cornell.edu/index.html〉. This site has almost half a million "hits" a day. See Comments on Preliminary Draft of Re-conceptualizing the Relationship Between Legal Ethics and Technological Innovation in Legal Practice: From Threat to Opportunity from Thomas R. Bruce, Co- Director of the Legal Information Institute of Cornell Law School, to Richard Zorza, Vice President, Fund for the City of New York 8 (n.d.) [hereinafter Bruce Comments] (on file with the Fordham Law Review).
45. Likewise, the Internet is producing better-informed consumers of healthcare services. For example, America's Health Network - which began as a cable television channel - has pioneered broadcasting live operations on the web at 〈http://www. AHN.com〉. See Lisa Napoli, Where Dr. Spock Meets E.R. on Line, N.Y. Times, Feb. 22, 1999, at C9; see also OnHealth Network Co., OnHealth.com - Your Personal Guide to Health Information (last updated Feb. 24, 1999) 〈http://onhealth.com/ch1/ index.asp〉 (providing an on-line health guide). "While television can demystify and humanize medical procedures for information hungry viewers . . . the internet allows 'on demand' access about specific procedures and ailments." Napoli, supra (quoting J. Tod Fetherling, president of AHN.com).
46. Likewise, the Internet is producing better-informed consumers of healthcare services. For example, America's Health Network - which began as a cable television channel - has pioneered broadcasting live operations on the web at 〈http://www. AHN.com〉. See Lisa Napoli, Where Dr. Spock Meets E.R. on Line, N.Y. Times, Feb. 22, 1999, at C9; see also OnHealth Network Co., OnHealth.com - Your Personal Guide to Health Information (last updated Feb. 24, 1999) 〈http://onhealth.com/ch1/ index.asp〉 (providing an on-line health guide). "While television can demystify and humanize medical procedures for information hungry viewers . . . the internet allows 'on demand' access about specific procedures and ailments." Napoli, supra (quoting J. Tod Fetherling, president of AHN.com).
47. For focus on the dubious effectiveness of lawyer-client communication in the current non-tech context, see Clark D. Cunningham, Evaluating Effective Lawyer-Client Communication: An International Project Moving from Research to Reform, 67 Fordham L. Rev. 1959, 1959-61 (1999) (discussing inadequacy of current research, using models from the medical field and progress in development of an international standard survey form).
48. See Maryland Law Online, supra note 14.
49. There is little dispute that automated document assembly, computerized research, and communications technologies have enhanced the quality of underlying representation. See, e.g., Marc Lauritsen, Delivering Legal Services with Computer-Based Practice Systems, 23 Clearinghouse Rev. 1532, 1532 (1990) (seeking to familiarize legal services personnel with practice system concepts); Marc Lauritsen & Ronald W. Staudt, Legal Technology in the Private Sector - Why Should We Care? (last updated Sept. 1998) 〈http://www.equaljustice.org/visions/TechConf/02privpr.htm〉 (discussing how private sector lawyers are utilizing information technology).
50. There is little dispute that automated document assembly, computerized research, and communications technologies have enhanced the quality of underlying representation. See, e.g., Marc Lauritsen, Delivering Legal Services with Computer- Based Practice Systems, 23 Clearinghouse Rev. 1532, 1532 (1990) (seeking to familiarize legal services personnel with practice system concepts); Marc Lauritsen & Ronald W. Staudt, Legal Technology in the Private Sector - Why Should We Care? (last updated Sept. 1998) 〈http://www.equaljustice.org/visions/TechConf/02privpr.htm〉 (discussing how private sector lawyers are utilizing information technology).
51. Cf. National Crime Information Center: 30 Years on the Beat (visited Mar. 22, 1998) 〈http://www.fbi.gov/2000/ncicinv.htm〉 (describing national crime records linking project).
52. The most recent comparative review of case tracking software targeted at poverty practice appears in the Summer 1998 issue of Legal Hotline Quarterly, a newsletter of the Legal Hotline Technical Assistance Project. It is available in .pdf format at 〈http://www.equaljustice.org/hotlines1/hotline_quarterly.pdf〉.
53. A comprehensive listing of commercial software may be found at Center for Practice Technology, Legal Software (last modified July 19,1998) 〈http://www.digital-lawyer.com/resource/software.html〉.
54. For a manual on the easy to use cryptogpraphy protocol, "PGP," see, for example, Seattle WebWorks - PGP & Remailers Made Simple Using Windows (visited Feb. 17, 1999) 〈http://home.earthlink.net/~rjswan/pgp〉 (providing tutorial assistance with PGP on a Windows operating system). See generally President's Comm'n on Critical Infrastructure Protection, Approaches to Cyber Intrusion Response: A "Legal Foundations" Study (1997) (outlining legal mechanisms to protect privacy).
55. For a manual on the easy to use cryptogpraphy protocol, "PGP," see, for example, Seattle WebWorks - PGP & Remailers Made Simple Using Windows (visited Feb. 17, 1999) 〈http://home.earthlink.net/~rjswan/pgp〉 (providing tutorial assistance with PGP on a Windows operating system). See generally President's Comm'n on Critical Infrastructure Protection, Approaches to Cyber Intrusion Response: A "Legal Foundations" Study (1997) (outlining legal mechanisms to protect privacy).
56. In a sense, the sheer volume of information on the Internet and the sheer number of people accessing that information often provide the best protection. More specifically, the Internet Domestic Violence sites have been built with careful attention to security maximization. See Zorza & Klemperer, supra note 8 (manuscript at 3-5) (discussing use of data deletion and encryption to prevent access to potential life-threatening address and identification information).
57. The intensive discussion in Ethics 2000 about relaxation of these rules in the poverty context is the best example. See, e.g., Center for Prof'L Responsibility, American Bar Ass'n Ethics 2000 - July 31-August 1, 1998. Minutes of Meeting (visited Feb. 19, 1999) 〈http://www.abanet.org/cpr/073198mtg.html〉 (discussing Model Rule 1.10, Imputation of Personal Interest Conflicts); cf. Recommendations, supra note 6, Recommendation 52, at 1775 ("There should not be two systems of justice, one for the poor and one for those with resources. Ethics provisions applied to limited legal assistance must not be based on the ability or inability to pay for that assistance.").
58. For example, even the word processor on which this paper is being written offers "sounds like" as one of the options in the "find" menu. Not so long ago this was a high-end database feature.
59. For a listing of court webpages, see National Ctr. for State Courts, Court and Court Related Web Sites (visited Feb. 17, 1999) 〈http://www.ncsc.dni.us/COURT/ SITES/courts.htm〉. For information on how court system information can be obtained electronically, see Data West Corp., CourtLink - Electronic Access to Our Nation's Court Records (visited Feb. 22, 1999) 〈http://www.courtlink.com〉.
60. For a listing of court webpages, see National Ctr. for State Courts, Court and Court Related Web Sites (visited Feb. 17, 1999) 〈http://www.ncsc.dni.us/COURT/ SITES/courts.htm〉. For information on how court system information can be obtained electronically, see Data West Corp., CourtLink - Electronic Access to Our Nation's Court Records (visited Feb. 22, 1999) 〈http://www.courtlink.com〉.
61. Many legal services programs attempt both to avoid conflicts and to advance their substantive family-centered agenda by providing representation in family law matters only to the "prime custodial parent." The ability to identify whether potential clients fit into this category is critical to the effectiveness of the strategy.
62. The limits to this approach should be obvious in this particular context, which is merely offered for illustrative purposes. It may not, for example, always be easy or safe to rely on data systems to provide an appropriate definition of prime custodial parent, particularly since that status may change frequently, and since programs often prefer to rely on more family-centered measures, such as time spent with the child. More generally, potential clients about which there is doubt could be routed to an external intake process such as a pro bono attorney, to limit any potential conflicts. If there is no conflict, the case could be reintegrated into the main flow of the provider. In all contexts, it must be remembered that much critical cultural information may not be well coded in databases.
63. See generally National Inst. of Standards and Tech., U.S. Dep't of Commerce, FIPS 190 Guideline for the Use of Advanced Authentication Technology Alternatives (Sept. 28, 1994) 〈http://www.itl.nist.gov/div897/pubs/fip190.htm#FORE_SEC〉 (describing the primary alternative methods for verifying the identities of computer system users).
64. A fascinating chart comparing these technologies appears at Ken Phillips, PC Week: Biometric Identification Comparison Chart (last updated Mar. 26, 1997) 〈http:/ /www8.zdnet.com/pcweek/reviews/0324/24biotab.html〉.
65. See id.
66. See id.
67. The more critical general questions concerning the desirability and dangers of these biometric identifiers are beyond the scope of this Response.
68. See generally Model Rules of Professional Conduct Rule 1.10 (1998) (stating the general rule of imputed disqualification applied to all members of a private firm); id. Rule 1.11 (stating more relaxed rules governing successive government and private employment, and permitting "screening" of confidential information to reduce conflicts); Annotated Model Rules, supra note 31, at 173-75 (discussing the elements of the "screening" of information to avoid imputed conflicts under Rule 1.10, and noting substantial legal acceptance of such techniques in private firms, even though they are not explicitly authorized by the rules).
69. See generally Model Rules of Professional Conduct Rule 1.10 (1998) (stating the general rule of imputed disqualification applied to all members of a private firm); id. Rule 1.11 (stating more relaxed rules governing successive government and private employment, and permitting "screening" of confidential information to reduce conflicts); Annotated Model Rules, supra note 31, at 173-75 (discussing the elements of the "screening" of information to avoid imputed conflicts under Rule 1.10, and noting substantial legal acceptance of such techniques in private firms, even though they are not explicitly authorized by the rules).
70. See Model Rules of Professional Conduct Rule 1.3 ("A lawyer shall act with reasonable diligence and promptness in representing a client."). As the ABA Center for Professional Responsibility tactfully put it, "[t]he Comment is less neutrally worded, requiring 'commitment and dedication to the interests of the client' and 'zeal in advocacy upon the client's behalf.'" Annotated Model Rules, supra note 31, at 26 (quoting Model Rules of Professional Conduct Rule 1.3, cmt. 1).
71. For the argument that the lawyer-client relationship is "deeply troubled" and that this is, at least in part, a result of communication failures, see Cunningham, supra note 34, at +4.
72. See id. (manuscript at 7).
73. See supra note 12.
74. Cf., Richard Solomon, USIP - Virtual Diplomacy Conference: Opening Remarks (April 1, 1997) 〈http://www.usip.org/oc/vd/vdpresents/rhsvdact.html〉 ("The information revolution is substantially taking the initiative away from governments.").
75. For example, 〈http://www.probono.net〉 brings together pro bono attorneys in skill sharing environment. See probono.net, probono.net (visited Feb. 19, 1999) 〈http:\\www.probono.net〉 [hereinafter Probono Homepage]. The site offers New York member practitioners in each of several focused practice areas, skill sharing, news, a calendar, helpful legal resources, and links. Id.
76. The cost of video is not insubstantial.
77. "Knowledgebase" is a new "buzzword" describing an accessible database of knowledge.
78. See, e.g., National Senior Citizens Law Ctr., National Senior Citizens Law Center (last modified Feb. 18, 1999) 〈http://www.nsclc.org〉 (providing information about the National Senior Citizens' Law Center, its programs, and its staff).
79. See Probono Homepage, supra note 58.
80. See Cathy Owen, Data Modeling, Data Warehousing and Data Mining - Or How to Make Your Data Work for You Like Never Before!, 8 DM Review (1998) 〈http://www.dmreview.com/issues/1998/nov/articles/nov98_49.htm〉.
81. See generally McNeal, supra note 4 (exploring the ethical issues associated with the unbundling of legal services).
82. Neither the changed relationships between courts and legal providers, new relationships between legal providers and community organizations, nor direct access by the poor to legal assistance technology, are significantly reached by the foregoing discussion. An example of the latter is web-based assistance in which lawyers do not take part directly.
83. The prototypes are those web pages that list situations in which full assistance from a lawyer is effectively required, and the use of the Internet site is not recommended. See, e.g., Legal Services Online - Purpose (visited Feb. 22, 1999) 〈http:// www.fcny.org/gadvdemo/page03.htm〉 (making clear that those with out of state custody orders, those under 18, and those in uncertain immigration status should not make use of the site).
84. This is analogous to the customer-individualized airline pricing pages, generated by services such as The SABRE Group, Inc., Travelocity.com (visited Feb. 17, 1999) 〈http://www.travelocity.com〉.
85. This technology is already widely used in marketing. See id. The Institute for Interactive Technology of Cornell Law School considers that such systems would also benefit attorneys and the quality of their work, particularly when the persuasive authority of a particular judge's rulings derives from the judge's reputation, rather than formal appellate position. See Bruce Comments, supra note 32, at 23-24.
86. Such access might not require the consent of the client as a matter of law, but obtaining consent would surely be advisable as a matter of improving the attorney-client relationship.
87. See Moore & Kolasa, supra note 20, at 526.
88. Cf. id. at 527 (materials include "a compilation of commonly asked legal questions, with answers; a desk reference manual with outlines of the law on a wide range of legal subjects; and a monthly bulletin of recent developments").
89. For example, those facing problems with their children and likely to talk to various social service organizations might not be fully aware of the obligations of mandated reporters.
90. There should be no real problem with creating appropriate confidentiality practices, since no advice-giver should ever communicate any such information about one person to another in any circumstances.
91. Programs would need to find ways to decline assistance that would not disclose to a caller that a competing party has obtained assistance. While in general such information would not be harmful, it could literally be fatal, for example, in the domestic violence context.
92. There is a view that where advice given is truly brief, and provided the above safeguards are followed, there is no need for comprehensive conflict checking. This is not so where the same program operates both a brief service program and a tradi-tional service program. It is necessary to check that provision of brief service would not conflict with the duty of loyalty to an existing full service client. See Recommendations, supra note 6, Recommendation 60(a), at 1776.
93. This would help advocates of these programs to avoid becoming bogged down in demanding and costly technicalities that have no practical relationship to the underlying values of the ethical rules.
94. In a sense this is analogous to software that suggests books based on the user's interest, see Yahoo! (visited Feb. 19, 1999) 〈http://www.yahoo.com〉, and its links to Amazon.com, Inc., Amazon.com (visited Feb. 19, 1999) 〈http://www.amazon.com〉.
95. In a sense this is analogous to software that suggests books based on the user's interest, see Yahoo! (visited Feb. 19, 1999) 〈http://www.yahoo.com〉, and its links to Amazon.com, Inc., Amazon.com (visited Feb. 19, 1999) 〈http://www.amazon.com〉.
96. This is similar to software that automatically suggests that book or music buyers might enjoy additional titles based on the buying patterns of the entire customer database. See Amazon.com, Inc., supra note 77.
97. An analogy is the outcome prediction software at the Midtown Community Court in Manhattan, which takes statistically validated factors and gives judge and counsel in minor cases a prediction as to the likelihood of compliance with various forms of alternative sanctions. See Richard Zorza, Beyond Technology: How Hardware and Humans Will Merge in the Courtroom of the Future, Crim. Just., Spring 1997, at 5-6.
98. One of the advantages that legal services providers have over smaller organizations is the ability to generate such systematic and integrated information. Cf. Richard Zorza, Bringing Criminal Justice Agencies On-Line: The Neighborhood Defender Service Experience, Crim. Just., Fall 1993, at 2 (describing these issues in the public defender context).
99. See Fund for the City of New York, Housing Court Online: Helping You Prepare for Court (visited Feb. 17, 1999) 〈www.fcny.org/housing/〉 [hereinafter Housing Court Online] (site at date of visit in draft form, including on-line user survey).
100. See Moore & Kolasa, supra note 20, at 528 (reporting that a review of computerized case files in one hotline program "revealed quality problems"). The reason for the problem was diagnosed as a lack of desktop resources.
101. Cf. Wendy Pollack, Temporary Assistance for Needy Families: Assessments, Individual Responsibility Plans and Work Activities, 31 Clearinghouse Rev. 401, 414 (1998) (describing efforts to respond to the needs of clients receiving Temporary Assistance for Needy Families in the era of welfare reform, highlighting a telephone hotline effort based in Chicago).
102. See McNeal, supra note 4, at 323 (discussing client competency).
103. Cf. Recommendations, supra note 6, at Recommendation 60(b), at 1777 (recommending that a diagnostic mechanism of some form should be required for any assistance beyond "brief specific advice"). In an ideal world, with services fully available as a matter of right, the question would be whether this form of assistance was optimum for the client. Given the huge and recognized absence of such help, the above-stated far less stringent question has to be enough.
104. Such values include avoiding second-rate service.
105. At the limit, there might be some innovations that would be inappropriate in all situations. The point is to reach that point at the end, not the beginning, of the inquiry. For a general discussion of evaluation methodologies, see Gregg G. Van Ryzin & Marianne Engleman Lado, Evaluating Systems for Delivering Legal Services to the Poor: Conceptual and Methodological Considerations, 67 Fordham L. Rev. 2553 (1999).
106. For example, in Unauthorized Practice of Law Commission v. Parsons Technology, Inc., No. Civ. A. 3:97CV-2859H, 1999 WL 47235 (N.D. Tex. Jan. 22,1999), the district court discussed, in the context of its constitutional analysis, the importance of the states interest in protecting its citizens from "being lulled into a false sense of security that if they use [the
107. Cf. Jerold S. Auerbach, Unequal Justice 110-14 (1977) (discussing a 1920s debate concerning attempts to structure the rules governing law schools and admission to the bar and their impact on access to legal help for immigrants and the poor); Morton J. Horwitz, The Transformation of American Law, 1780-1860, at 63-97 (1977) (discussing the trend, in the nineteenth century, to relax rules of tort liability in the interest of subsiding economic development).
108. Cf. Jerold S. Auerbach, Unequal Justice 110-14 (1977) (discussing a 1920s debate concerning attempts to structure the rules governing law schools and admission to the bar and their impact on access to legal help for immigrants and the poor); Morton J. Horwitz, The Transformation of American Law, 1780-1860, at 63-97 (1977) (discussing the trend, in the nineteenth century, to relax rules of tort liability in the interest of subsiding economic development).
109. See generally Susan L. Keilitz & Barbara C. Kelly, Internet-based Domestic Violence Court Preparation System Evaluation attachment 2 (1998) (publishing charts of timing data).
110. See, e.g., Housing Court OnLine, supra note 81 (providing touch screen enabled court preparation system in the eviction prevention context).
111. This is a technology that is advancing with particular speed. It is also a particularly intuitive technology. The author once heard the true story of a Spanish speaker who came to the United States, believing it to be the land of hi-tech. He approached a Coca Cola machine, read the instruction that then - many years ago - said "Dime," and responded appropriately by talking directly to the machine "One Coca-Cola." He was way ahead of his time in understanding the instruction as "Di me" - "speak to me."
112. The Model Rules of Professional Conduct recognize that intent and state of mind are critical when it comes to behavior under the rules. See Model Rules of Professional Conduct Rule 8.4 cmt. 2 (1998) (noting with respect to Rule governing misconduct, that "[a] lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists," and incorporating by reference provisions of Rule 1.2(d) permitting the attorney (in terms of Rule 8.4 on his or her own behalf) to "make a good faith effort to determine the validity, scope, meaning, or application of [unclear or challenged] law"). This language would appear to provide, depending on the circumstances, the elements of a solid safe harbor for good faith experimentation.
113. This might be analogized to, and seen as growing from, the recommended "aspir[ation]" of "at least (50) fifty hours of pro bono publico legal services per year." Id. Rule 6.1 (recognizing the need for legal assistance for low-income people).
114. 117 S. Ct. 2329 (1997). According to the Supreme Court, the District Court made 410 findings of fact, including 356 paragraphs of stipulations of the parties, and 54 "findings based on evidence received in open court." Id. at 2334.