The inquirer presented a series of questions to the Professional Guidance Committee involving two scenarios and his participation in on-line chat rooms and bulletin boards on the Internet.
1) The inquirer has filed a class action suit against ABC Corp., for violation of the securities laws. Thereafter, in an existing on-line chat room (which is real time) or on a bulletin board (which is only postings) created to discuss the stock price of ABC Corp., one of the following occurs: (1) someone asks what happened to the stock price of ABC Corp.; (2) someone provides wrong information about the class action (i.e. avers that only mutual funds are included in the class when in truth all purchasers of ABC Corp.'s stock are included); or (3) generally asks what the litigation is all about. Noting that an attorney representing a putative class has some obligation to protect the rights of the putative class he/she seeks to represent, the inquirer asks if there is any difference in his rights/obligations to respond to the comment or question if it comes from a putative class member.
2) When the inquirer has not filed suit but is still in an existing on-line chat room or on a bulletin board previously created to discuss the stock price of ABC Corp. someone asks: (1) if anyone knows why the stock price of ABC Corp. dropped; (2) specifically if ABC Corp. violated the securities law; or (3) if a lawyer is willing to discuss the situation, the inquirer asks if he can respond to any of these items, and whether the answers in either of the scenarios is different should the question or comment be made in an on-line chat room as opposed to simply a bulletin board.
The internet is a new phenomenon and poses ethical issues that can be further explored only as specific situations arise. Articles and commentaries appear with frequency on the subject of the interaction of ethical rules with emerging communication technologies, in particular, the internet. A review of them shows the law in this area is in a sorting-out period.
Nevertheless, we do not believe that the inquirer is prohibited from engaging in any of the conduct that he proposes. A thoughtful practitioner can communicate with persons on the internet as the inquirer intends and steer clear of ethical violations as long as he or she is mindful of the rules. Set out below are several Pennsylvania Rules of Professional Conduct to which the inquirer should pay particular attention.
The inquirer should be mindful that he must be truthful in all comments made. (See Rule 4.1)
The inquirer should also be mindful of the fact that he may not communicate about the subject of a representation with a party he knows to be represented by another lawyer in the matter (see Rule 4.2), and may not deal on behalf of a client with a person who is not represented while the inquirer is stating or implying that he or she is disinterested, or give advice to an unrepresented person whose interests are or have a reasonable possibility of being adverse to the inquirer' s client (see Rule 4.3). In view of the anonymity of internet chat rooms and bulletin boards, it is not possible to know whether or not someone with whom one is communicating is represented. A lawyer could perhaps claim that Rule 4.2 does not prohibit any communication because he would not "know" the other to be represented by a lawyer, but Rule 4.3 seems to presume knowledge one way or another. It is fair to say that the persons whose interests might require representation, that is the owners of stock in the ABC company during the relevant time period, must of necessity either be 1) represented by the inquirer; 2) represented by another lawyer; or 3) represented by no one. (Of course, there may be many more persons with whom the inquirer would be communicating who have no real legal interest in the matter because they did not own stock in ABC at all.) Leaving aside those represented by the inquirer, either Rule 4.3 or 4.2 applies to the communication. Accordingly, we believe that a lawyer communicating should be mindful of this issue and take steps to avoid violating Rules 4.3 and 4.2. These steps could include advising all persons with whom he is communicating exactly who he or she is, asking them not to communicate with him if they are represented, and being mindful, given all of the facts of the matter, if any unrepresented persons could have interests that are or might become adverse to his existing clients. (One could argue that merely by being on the internet and communicating with some persons, one is "communicating" with all those in that same chat room or visiting the same bulletin board. If that is so, a notice not to communicate with the inquirer, if one is in a group with whom communication would be improper, would be too late. The communication will already have taken place. This view seems to the Committee, however, to go too far. It is not unreasonable for the inquirer to expect that his advice would be heeded and if someone wants to listen in, by viewing the inquirer's proper communications with others, that should not render those legitimate communications improper.)
Consideration should be given to the unauthorized practice of law. Although the inquirer is apparently a licensed practitioner in Pennsylvania, there is ambiguity about the ethical rules which would apply to this kind of activity. Some states have taken the position that it is possible that their ethical rules could apply if the internet "conversation" is taking place with a person located within their boundaries, thereby subjecting lawyers on the internet to ethical oversight by those states. The inquirer should consider including on any communication a notice that he is a lawyer licensed in Pennsylvania, and he is not purporting to give any kind of advice other than in accordance with that status and that he is not purporting to practice law in any other jurisdiction. (N.B. We offer no assurance this would be recognized by all states.)
The inquirer should be careful that he does not engage in any activity which constitutes improper solicitation. In the opinion of the Committee, conversation interactions with persons on the Internet do not constitute improper solicitation, but in any one particular case the interaction may evolve in such a way that it could be characterized as such. (See Rules 7.1, 7.2, 7.3, 7.4.)
The inquirer should also be mindful that in the course of an interaction with any person on the internet an attorney/client relationship may begin with all that such a relationship implies including creation of potential conflicts of interest (see Rules 1.7 and 1.9) and expectations of confidentiality (see Rule 1.6). Generally speaking, an attorney/client relationship begins when a person would have a reasonable expectation that such a relationship was formed. That is not necessarily the same time a lawyer might think it is formed and consideration should be given as to how to advise persons with whom one is communicating that it is not one's intent and is not the result.