RE-CONCEPTUALIZING THE RELATIONSHIP BETWEEN LEGAL ETHICS AND
TECHNOLOGICAL INNOVATION IN LEGAL PRACTICE: FROM THREAT
Copyright 1999, Fordham Law Review, all rights reserved.
For the first time since the invention of the typewriter and the telephone, technology has again begun to exert a significant influence upon the practice of law. New communication technologies 1
* Vice President, Fund for the City of
New York; J. D., Harvard Law School;
A. B., Harvard College. The author wishes to thank his fellow participants in the Working Group on Lim-ited Representation at the Symposium that led to this issue of the Fordham Law Re-view, as well as the following for their advice and assistance in the preparation of this Response: Professor Mary Helen McNeal of the University of Montana Law School and Thomas R. Bruce, Co-Director of the Legal Information Institute of Cornell Law School.
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 RevolutionÐ Cable Modems, Power Line Modems, High
Bandwidth, Regular Phone LinesÐ Will Provide Broader, Faster and Cheaper Access.
. . . . Two: The Interface RevolutionÐ Voice Recognition and Synthesis Software,
Virtual Reality EnvironmentsÐ Will Make Connection To Technology Far Easier.
. . . . Three: The Information Retrieval RevolutionÐ Web Editors and Search
Engines For Multi-Media, Push Technology and Intelligent Search AgentsÐ Will Make It Far Easier to Find Information and Change the Way We Think
About Information. . . . .
Four: The Presence RevolutionÐ Ultra-high Bandwidth, Real-time Video and Working Conferencing "Environments" Such As ICQÐ Will Break
Down Geographically Defined Ways of Thinking. . . . .
Five: The Analysis RevolutionÐ Instantaneous Statistical Analysis, Artifi-cial Intelligence, and Real Time Simulation SoftwareÐ Will Give Us the
Power to Understand and Shape Our World. . . . .
Six: The Identity RevolutionÐ Security and User Authentication Innova-tionsÐ Will Remove Many of the Barriers to Transactions at a Distance.
. . . . Seven: The Mobility RevolutionÐ Mobile Computing With Radio Connec-tion
to the Net and PDAsÐ Will Enable Us to Be Connected Wherever We Are, Increasing Our Effectiveness, and Our Clients Ability to Be in Touch
When They Need Us.
2660 FORDHAM LAW REVIEW [Vol. 67
hold the promise of increased access to legal services for the public
at large, and particularly for the poor. The tide of innovation has, how-ever,
triggered disquiet among experts in legal ethics, particularly in response to the practice innovations that incorporate these
Skeptics fear that lawyers, paralegals, and legal services organiza-tions,
in the rush to serve individual clients who are ever more desper-ately
in need, 2 will do so in violation of long-standing and carefully crafted ethical rules, 3 which were designed to protect values such as
loyalty, zealousness, confidentiality, competence, and commitment in the administration of justice. 4 At its most intense, this fear fuels dec-larations
that new means of assistance constitute the unauthorized practice of law. 5 Conversely, advocates of innovation fear that outmo.
2. 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 communi-cation,
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 over-whelmingly
documented. See, e. g., Russel Engler, And Justice for AllÐ 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 liti-gants inside and outside the courthouse).
3. As a general matter, references throughout
this Response to "the rules" de-note 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 Mc-Neal, 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 articu-lates 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 modi-fied 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 per-mitting the establishment of court-approved family self-help programs). The Court
engaged in a detailed discussion of the problem of staff directing litigants to applica-ble statutes and emphasized the need for staff of such programs not to "advise a liti-gant
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 ser-vice
and advice" context, which reflect this disquiet, see infra note 22.
5. 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 dis-tribution 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 -- continue
ded rules or interpretations will delay necessary experimentation and resulting advancements in the delivery of legal services. 6
Similar concerns can arise as technology makes possible closer cli-ent-serving
relationships between legal service providers and commu-nity
organizations. Through these partnerships, community organizations are becoming the gateway for access to justice for the
poor, blurring the lines between lay and professional organizations and their respective responsibilities. 7
Likewise, tensions emerge as communication technologies and the desire
to ease access to courts prompt courts to employ computers and
the Internet to reach out to assist unrepresented litigants. 8 The extent
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 rela-tionship 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 explic-itly
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-representationÐ 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).
6. 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 serv-icesÐ
some but not all driven by technologyÐ 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.").
7. 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 Na-ture and Potential of the Relationship, 67 Fordham L. Rev. 2123, 2147 (1999) (consid-ering
the arguably analytically simpler situation that arises when the lawyer and social worker are in the same organization).
8. 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 Do-mestic
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
and complexity of these tensions will develop as courts and legal ser-vice
providers enter into closer cooperative relationships and under-take
joint projects to address these growing problems. 9
This Response does not attempt to provide answers to specific ques-tions
under the current ethical rules. 10 Rather, it suggests
ways to think about the broader issues we face as legal providers in a modern era. This Response argues that the skeptics' fear of ethical
ruin is misplaced. Rather than threatening the practice of law, techno-logical innovation can dramatically advance the values that the ethical
rules seek to protect. 11 Such advancement, however, can be achieved only if technological innovation is carefully deployed, with an under-standing
of the underlying values that the ethical rules seek to protect, and if the ethical rules that govern practice are interpreted and modified
to reflect the enormous potential of these innovations. 12
project, conducted by the National Center for State Courts, emphasizes that the suc-cess of the project was closely related to the court, legal services, and community
collaborations. See Zorza & Klemperer, supra (manuscript at 4).
9. 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 be-come associated with such projects.
10. Cf. Recommendations, supra note 6, Recommendatiions 47± 64, at 1774-78 (setting forth specific proposals for dealing with issues of such limited legal
11. 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 ques-tioned 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 dem-ographic
groups). Even if this assumption is overly optimistic with respect to home usage of the In-ternet,
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 InternetÐ 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. More-over,
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 technolo-gies
that will support it for all regardless of technological and non-technological literacy.
12. Suggestive and speculative scenarios
that give a sense of the scope of this po-tential 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 Representa-tion:
The Advocate Scenario (visited Feb. 19, 1999) <http:// www. equaljustice. org/ vi- -- Continue
If this analysis is correct, then the implications for the guardians
of the ethical behavior of our profession are profound. Rather than
positioning themselves as a bulwark against technologically-driven erosion of our professional values, they should be engaging in a coop-erative
endeavor with technology and service delivery innovators, to shape both emerging technologies, the ways in which they are used, as
well as the technical language of the rules and the interpretations thereof to advance our shared values. 13
I. ETHICAL CONCERNS AND PRACTICE INNOVATION: THE EXAMPLE OF "BRIEF SERVICE AND ADVICE"
The fear of technologically-driven innovation is perhaps best under-stood
by the standard example of "brief service and advice." The
same or related concerns, however, can be raised for some of the other novel forms of delivery of legal services. As alternatives to
traditional "full service" representation, these innovations include web-sites designed by legal service providers that assist litigants with
legal information; 14 court preparation, and the completion of forms required for court; 15 systems by which attorneys provide brief e-mail
advice for free or for a small fee; 16 other forms of formal or informal
sions/ 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 Techno-logically
Enabled Delivery System from the Perspective of Its Senior Management (vis-ited 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
outÐ whether ultimately to help or hinder clientsÐ may depend most of all on the values and goals of management.
13. 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.
14. 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).
15. 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 Pro-ject (visited Feb. 19, 1999) <http:// www. fcny. org/ nydvdemo/> (displaying similar sys-tem
for New York, optimized for touch screen use).
16. 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 -- Continue
unbundling, such as the "ghostwriting" of forms; 17
and pro se clinics, 18 in which groups of individuals
are given sometimes focused, but short-term,
collective advice. 19
The "brief service or advice" methodology of legal representation has
grown out of the dwindling availability of traditional representa-tion.
Though it can take on many forms, this practice consists essen-tially of a brief interaction with the lawyer (or supervised paralegal)
that results in the delivery of a discrete, unbundled service to the cli-ent. The interaction significantly advances the client's legal interests
at minimal marginal and average cost to the legal services entity.
Though such services have long been offered, recent technological innovations
have made their administration much more practical. In
some cases, extensive legal content is electronically organized to help the provider answer questions quickly, efficiently, and accurately. In
others, a summary of the actual interaction is maintained electroni-cally, allowing routine or spot supervisory review. Some systems pro-vide
legal services in the form of electronically-generated and standard printed outputs. In most such systems, the telephone is the
access medium, radically reducing administrative overhead and al-lowing the technology to take care of queuing and appointment sched-uling
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).
17. See, e. g., Colorado Supreme
Court Rules Comm., Proposed Amendments Con-cerning Limited Representation
of Pro Se Parties, Colo. Law., Aug. 1998, at 101
(presenting proposed rules, apparently not adopted, that would have permitted attor-neys 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 con-stituting an entry of an appearance for other purposes).
18. See Margaret Martin Barry,
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).
19. 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).
20. See Legal Servs. Corp., Office
of the Inspector General, Increasing Legal Serv-ices Delivery Capacity
Through Information Technology 18-21 (1996) [hereinafter In-creasing
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 discus-sion of the unauthorized practice of law issues deriving from such practice, see gener-ally
Recommendations, supra note 5, Recommendations 25± 46, at 1759-74 (setting forth the recommendations of the Working Group on the Use of Non-Lawyers). 6
That such systems allow legal service providers to reach a signifi-cantly
larger number of people is undisputed. 21 Whether the
receive services that are fully consistent with the ethical rules, however, is a contested issue. In the context of "brief service and ad-vice,"
critics question the existence and adequacy of client autonomy, confidentiality, zealousness, competence, and continuity of
A. Client Autonomy and Informed Consent
As a practical matter, most clients who make use of "brief service and
advice" servicesÐ or indeed any alternative to traditional full ser-vice
representationÐ do so as a last resort. They can not afford tradi-tional representation in the market and they have been, or are likely
to be, rejected from free services, either because of income limitations or because the free legal services providers are hopelessly overloaded.
Concerns arise that these circumstances force clients to accept far from ideal service either without knowing the significant downside to
the service, or while knowing it, having no choice but to accept it.
For example, brief service may consist of the preparation of a plead-ing,
but the client may have no idea how to use that pleading effec-tively
in court. Or the lawyer may advise the client to follow a course of action without a full analysis of the costs and benefits of alternative
remedies. At a minimum, a short-term client who lacks ongoing rep-resentation and support may encounter far more complex situations
with neither the tools to deal with them, nor the ability to recognize that such tools are needed. 23
21. See Increasing Delivery Capacity, supra note 20, at 19. 22. See McNeal, supra note 4, at 311-18.
22. 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 attor-neys 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 unethi-cal.
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.
23. 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 limita-tion must be consistent with Rule 1.1. See id. cmt. 5. Rule 1.1 requires generally effec-tive
representationÐ thus a lawyer cannot ask a client to agree to limited representation if that will be ineffective. 7
The skeptics worry that, at best, lawyers or legal service organiza-tions
are controlling the choices that clients are making about repre-sentation,
and, at worst, that they are imposing the decisions upon clients. 24 The concern is particularly acute with respect to elderly cli-ents
or those with a diminished capacity to understand or make legal choices. 25
Concerns about confidentiality stem from the fears either that "brief
service and advice" providers will not feel bound by an ongoing
obligation of confidentiality, or, perhaps more likely, that the huge volumes of cases will undercut organizations' practical ability to en-force
the rules of confidentiality. Confidentiality concerns are com-pounded further by the argument that brief service relationships are
not attorney-client relationships at all, and therefore not governed by the rules. 26
C. Conflict of Interest
Skeptics fear that limited service providers will be sloppy about preventing
conflicts of interest. In particular, there is concern that
practitioners who view the attorney-client relationship as limited to the brief period of service or advice will become insensitive to their
obligations to forebear from acting against the interests of those to whom they have ongoing obligations. A high volume of clients might
be viewed as increasing this risk. 27
D. Zealousness and Loyalty
There is also concern that practitioners who engage in only brief encounters
with their clients will not develop the intense loyalty to
those clients that the profession demands. Rather, they will mentally compartmentalize and archive their cases without any interest in the
ultimate outcome. This detachment would thwart the lawyer's duty to
24. 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.
25. See McNeal, supra note 4, at 335.
26. See Model Rules of Professional Conduct Rule 1.6.
27. 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, Ameri-can
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).
optimize her contribution to achieve an outcome in the client's best interest.
The competence concern is closely related to the zealousness con-cern.
At an extreme, critics doubt that anything other than traditional
"complete" representation can constitute fully competent representa-tion, as it is traditionally defined. 28 They doubt that a lawyer can han-dle
only a small part of a client's need in other than an incompetent wayÐ that giving advice, rather than doing the work oneself, is inher-ently
inadequate. A case can be seen only as a whole, and therefore a partial focus will lead to less competent work, even on a small task.
F. Continuity of Representation
Perhaps the most troubling issue, derived in part from the concerns
already enumerated, is that of continuity of representation. Tradi-tional
ethical rules placeÐ or at least appear to placeÐ a high value on continuity of representation. They put limitations on an attorney's
freedom to withdraw from representation, particularly in the litigation context. 29 Critics claim that partial service models implicitly or explic-itly
violate those rules. 30
28. 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.
29. See id. Rule 1.16.
30. Model Rule of Professional Conduct
1.16 puts strong limitations on with-drawal 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 viola-tor'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 disap-proved method of assisting clients, but had done so to increase access to justice, with-out
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 ethi-cal
corners to maximize profits. See generally infra note 93 (discussing "state of mind" and "intent" defenses to violations of the Rules).
II. THE POTENTIAL POWER OF TECHNOLOGY TO TRANSCEND ETHICAL CONCERNS
Regardless of the specific service methodology to which it is ap-plied,
technology can be deployed not merely to mitigate these ethical
concerns, but to transcend them. The remainder of this Response will discuss possible transcending technologies, first without regard to the
specifics of the "brief service and advice" context, and then, by way of brief example, in that context.
In any area of innovation, proponents and critics should identify how transforming capacities can be used to enhance the ethical values
of the profession, rather than focusing on the dangers. To assist this process, this Response will conclude by proposing general ways in
which the deployment of new technologies can be enhanced, rather than hindered, by the ethical enforcement and rule-making
A. Client Autonomy and Informed Consent
As a general matter, emerging technologies offer enormous oppor-tunities
for expansion of client autonomy and informed consent in the
attorney-client relationship. 31
First, emerging Internet-based technologies enable the client to know
far more about the law of his or her case than ever before. On
their own or at libraries or community centers, clients can inform themselves in detail about the governing law, long before they deal
with the advocacy professional. 32 They can communicate with others
31. Both the Model Rules of Professional Conduct themselves, Model Rule 1.4, and an extensive literature endorse the role of client knowledge in advancing auton-omy.
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) [herein-after
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 en-sure that they communicate to the lawyer information that in turn must be communi-cated
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 PoorÐ 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 cli-ents to control decisions about the solutions to their problems").
32. The leading gateway for legal information
is Cornell Law School's
Legal Infor-mation 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 Inno-vation in Legal Practice: From Threat to Opportunity from Thomas R. Bruce, Co- - Continue
in similar situations and share common experiences. Indeed, lawyers
are already reporting informally that their clients are using these tools
to demand more from the attorney-client relationship. 33
Secondly, electronic mail, voicemail, and other technologies allow clients
to keep in closer contact with their attorney than before. 34
This trend is not limited to the higher income client.
3. A Wider Range of Representation Tools
Thirdly, technology is making possible a much wider range of repre-sentation
and self-representation tools. Fully interactive web sites
that diagnose situations and prepare court pleadings and on-line forms, 35 to name just two already in extensive use, are technology-based
innovations that give both the attorney and the client a far wider range of problem solving tools from which to choose.
4. Shaping the Interaction
Perhaps most importantly, technology can be used to shape the in-teraction
between the professional and client to maximize client au-tonomy.
Specifically, emerging technologies will enable the professional and client to quickly and efficiently obtain and share
enough information about the problem the client is facing, in order to make a jointly informed diagnostic decision. On-line, Internet-based
question-and-answer software can be programmed to walk users through the key questions to elucidate the underlying circumstances
of a client's problems.
The client, or the client and attorney together, can walk through a
series of questions about the case. In a domestic violence case, for
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).
33. Likewise, the Internet is producing
better-informed consumers of healthcare
services. For example, America's Health NetworkÐ which began as a cable television channelÐ 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. comÐ 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).
34. For focus on the dubious effectiveness
of lawyer-client communication in the
current non-tech context, see Clark D. Cunningham, Evaluating Effective Lawyer-Cli-ent 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).
35. See Maryland Law Online, supra note 14. 11
example, the victim can be asked about out-of-state orders, custody
disputes, and other possible complexities. The output can be used
jointly to determine, in a far more informed way, the best and safest way to proceedÐ the ultimate test of client autonomy and informed
These new tools bring together a better-informed client with a bet-ter-equipped
professional, and give the two additional diagnostic and
communicative means to facilitate a detailed, multi-faceted diagnostic process that optimizes client choice. In addition to the ways that tech-nology
can be used by the lawyer to provide higher quality representa-tion, 36 it can provide opportunities to improve client autonomy and
As a general matter, technological innovation surely has ad-vancedÐ
and will continue to advanceÐ the protection of
1. Control Over Data
Put most simply, the key to technological enhancement of confiden-tiality
is control over data. When most information is stored electroni-cally,
it isÐ or rather can beÐ far more strictly controlled. Electronic storage of client interviews, diagnoses, and other documents related to
representation restricts access to those authorized to review those materialsÐ they are not left "lying around" like their paper counter-parts
for anyone to see. Obviously, the foregoing depends on imple-mentation of well-designed security systems, as well as the
management systems to support those systems.
2. Tracking of Access
The capacity to track and keep detailed records of all access to con-fidential
files, long standard in sophisticated systems, is particularly
important. It should be noted, however, that systems protecting large databases, such as criminal records or domestic violence orders, are
far more effective in this respect than attorney case file systems, many of which are cobbled together with simple databases and word
36. There is little dispute that automated
document assembly, computerized re-search, 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 familiar-ize
legal services personnel with practice system concepts); Marc Lauritsen & Ronald W. Staudt, Legal Technology in the Private SectorÐ Why Should We Care? (last up-dated
Sept. 1998) <http:// www. equaljustice. org/ visions/ TechConf/ 02privpr. htm> (dis-cussing how private sector lawyers are utilizing information technology). -Continue
processing files. 37 The technology of small law office
conflict checking continues to advance, 38 and large
law firm software is a major
3. Encryption and Security
Continual advances in encryption make it easier to protect routine electronic
communications from eavesdropping. These advances al-low
for enhanced privacy in the routine context. 40 As a practical mat-ter, obtaining data from a well-protected site is more difficult than
generally realizedÐ at least where what is sought is one particular piece of data, such as my plea bargain, rather than a general set of
data, such as any valid credit card number. 41
In any innovation context, the overall conclusion remains, however,
that technology can be used to enhance confidentiality by securing
and tracking all access to information, the release of which would vio-late the shared value of confidentiality.
C. Conflict of Interest
In the innovation context, conflict of interest concerns can also be
assuaged, rather than intensified, by appropriate deployment and en-hancement
The critical issue for conflict of interest is indexing. If a legal
pro-vider can not identify its conflicts, it can hardly avoid them. For
reason, burdensome prophylactic rules of imputed conflicts have been created, in an attempt to avoid even the possibility of an actual con-.
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 link-ing
38. The most recent comparative review
of case tracking software targeted at pov-erty
practice appears in the Summer 1998 issue of Legal Hotline Quarterly, a newslet-ter of the Legal Hotline Technical Assistance Project. It is available in .pdf format at
<http:// www. equaljustice. org/ hotlines1/ hotline_ quarterly. pdf>.
39. 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>.
40. For a manual on the easy to use cryptogpraphy
protocol, "PGP," see, for ex-ample, Seattle WebWorksÐ 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).
41. 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 atten-tion 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).
flict arising. The inconvenience of these rules, and the attempts to
get around them by relaxing or ignoring them in particular contexts, have
put perhaps the greatest pressure on current ethical structures and created the greatest tension about whether the rules are "out of date"
or disregarded. 42 Computer indexing technologies are advancing all the time, 43 however, increasing the lawyer's ability to identify actual
conflicts with each advance.
2. Use of Additional Information
Moreover, increases in public access databases are facilitating the
exchange of additional information about clients, potential clients,
and their relationships with one another, that should make it easier to identify these conflicts much earlier in the intake process. 44 For exam-ple,
legal providers might use fully automated processes not merely to index names, but also to prophylactically identify likely conflicts,
through access to electronic court records, family records, and the like. Similarly, offices that have conflict avoidance and priority poli-cies,
such as "prime custodial parent," might use this software to begin to identify the potential client's status with respect to the policy,
before any substantive interaction with the client takes place. 45 Of course, once any substantive interaction has occurred with the unde-sired
client, the desired client has been conflicted out. 46
42. 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, Ameri-can
Bar Ass'n Ethics 2000Ð 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, Rec-ommendation 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.").
43. 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.
44. 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 ob-tained
electronically, see Data West Corp., CourtLinkÐ Electronic Access to Our Na-tion's Court Records (visited Feb. 22, 1999) <http:// www. courtlink. com>.
45. 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.
46. 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.
3. Identity Improvements
Similar transformative potential exists in technologies that improve
and enhance client identification ability. 47
As more and more large
governmental systems move beyond birth date identifiers to biometric identifiersÐ such as electronic voiceprints, 48 retina scans 49 and on-line
fingerprints 50 Ðit will become more and more difficult for undesired clients to slip through intake screening systems. Similarly, it will be-come
easier to identify those relationships that create conflicts. 51
5. Walls Between Information
Technological innovation also provides far more flexibility in con-flict-avoiding
information "walling." Electronic tagging of informa-tion
and tracking of access instill confidence that such walling-off rules are actually being followed, and that compliance can be documented,
for use by potentially aggrieved clients or disciplinary bodies. 52
Taken together, these areas of innovation suggest the possibility that
service delivery changes can resolve, rather than aggravate,
problems with actual and imputed conflicts of interest.
D. Zealousness and Loyalty
The core value of zealousness is best served by connection between client
and professionalÐ a connection that leads to the professional to
act only to further, and never to hinder, the client's interest. 53 This value is served by both communication and visibility.
In all contexts, it must be remembered that much critical cultural information may not be well coded in databases.
47. 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> (de-scribing the primary alternative methods for verifying the identities of computer sys-tem
48. 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>.
49. See id.
50. See id.
51. The more critical general questions concerning the desirability and dangers of these biometric identifiers are beyond the scope of this Response.
52. 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 con-flicts);
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).
53. 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
1. Communication and Feedback
As described above, new communication technologies such e-mail and voicemail
enhance the ability of lawyer and client to communicate
on a routine basis. Perhaps less well-recognized is the extent to which these communications may be changing the routine content of attor-ney-
client communication. The inherent informality and spontaneity of the communication can result in a broader dialogue, better inform-ing
the professional about the underlying circumstances of the client's life, and thus instilling greater empathy and zealousness in the
Additionally, these informal and instant communications are likely to
facilitate feedback from client to attorney about the results of the
representationÐ" guess what happened when I went back to welfare," or "that boyfriend came back last night," etc. Of course, these infor-mal
links cannot be formed if affirmatively discouraged by the profes-sional, 55 though they certainly run the risk of overwhelming any legal
services provider. If practitioners take full advantage of their benefits, however, these technologies can offer the promise of significantly en-hancing
connection and thus zealousness. As technology links to-gether a much wider net of professionals and community support
services on a routine and ongoing basis, we can expect even more feedback and creativity in representation. 56
Equally important is the increased visibility that technology brings.
The derelictions of less than zealous professionals will be more appar-ent
to the clients and the profession in the future. The new technolo-gies will better inform the client of the consequences of the lawyer's
actions, and more broadly disseminate models of zealousness against which individual lawyers will be judged. The Internet has already
brought such an increase in the visibility and transparency of govern-ment actions. 57
Likewise, technology can enhance competency of representation in a variety
of service delivery contexts.
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).
54. 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.
55. See id. (manuscript at 7).
56. See supra note 12.
Richard Solomon, USIPÐ
Virtual Diplomacy Conference: Opening Re-marks
(April 1, 1997) <http:// www. usip. org/ oc/ vd/ vdpresents/ rhsvdact. html> (" The in-formation revolution is substantially taking the initiative away from governments.").
1. Knowledge and Skills
At an absolute minimum, the deployment of technology educates the practitioner
by making available and accessible legal information
and a wider range of skills. Technology can disseminate examples of successful actions and communicate them in a focused way to those
who are most likely to make use of them. It also can bring the profes-sional into contact with others who are similarly situated. 58
2. Training Technologies
The rapidly evolving training technologies that deliver easy to un-derstand,
absorb, and search on-line materials are also promising.
Such materials include video, 59 "knowledgebases," 60 and traditional web pages. 61
3. Electronic Peer Review
Thought is also being given to enhancing peer review through elec-tronic
connection. The pro bono community has recently adopted an
Internet protocol which facilitates review of the work of new pro bono lawyers by more experienced volunteer practitioners, either pro bono
or in legal services offices. 62
4. Statistical Tracking and Analysis
Competence is also enhanced by the use of newly developed statis-tical
and tracking systems. Such systems could take the volume of
data that case monitoring systems now routinely collect and analyze it for indicia of competence and lack of competence. 63 Particularly
when linked to court and governmental computers, such systems will make it possible to raise the level of competence in any methodology
of representation. They will also make it possible to track relative outcomes by service methodology, and thus reassure skeptics and the
profession that clients are not adversely affected by electing alterna-tive representation.
58. 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.
59. The cost of video is not insubstantial.
60. "Knowledgebase" is a new "buzzword"
describing an accessible database of knowledge.
61. 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).
62. See Probono Homepage, supra note 58.
63. See Cathy Owen, Data Modeling,
Data Warehousing and Data MiningÐ 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>.
Taken together, these initiatives confirm that technology is a tool
for enhancement of skill regardless of the context. Given that con-cerns
about competence tend to be raised more usually in nontradi-tional representation contexts, 64 however, this capacity is important in
evaluating the overall impact of service methodology innovation.
F. Continuity of Representation
Concerns over continuity of representation are closely linked to matters
of client autonomy. The techniques discussed above that en-hance
client autonomy also suggest that lack of continuity of represen-tation does not necessarily undercut the fundamental values of the
profession. More important to this discussion, however, are uses of technology that accomplish in a nontraditional way the benefits tradi-tionally
associated with continuity of representation.
1. Feedback Systems
Computer-based technology makes possible feedback mechanisms for tracking
the progress of cases that are far more effective than
those that exist in the "paper" world. One of the greatest fears associ-ated with nontraditional service methodologies is that the attorney
will lose touch withÐ or rather never feel any obligation to be in touch withÐ the progress of the case. A case that seems simple and safe for
the client to handle nontraditionally may become complicated and dangerous, while the client is ignorant of the risks and how to resolve
However, technology can provide ways in which the advocate, or perhaps
the advocate's organization, can keep in touch with the pro-gress
of the case and intervene when appropriate. For example, a legal services program and a family court might cooperate to apprise
one another when case circumstances change. Whenever a case that had not involved a custody dispute changed to involve a custody mat-ter,
or whenever a case in which the opposing client had not been represented changed to one in which that person is represented, the
court computer system could automatically inform the original advo-cate and trigger, at minimum, a reevaluation of the case.
On a less formal level, electronic linkages make it easier for advo-cates to keep in touch with governmental and court processes and
with the results of the cases. This keeps advocates better connected and more responsible.
2. Higher Skill
As discussed above, technology increases overall skill levels. As a result, the advocate can take early steps to teach the client to recog-
64. See generally McNeal, supra note 4 (exploring the ethical issues associated with the unbundling of legal services).
nize the circumstances under which she or he may needÐ and should
ask forÐ more help. Moreover, providing this information earlier in
the case can reduce the likelihood that intervention will be needed in the future.
3. Precision in Goals
The real need for continuity in representation is often the absence
of clear goals or of a strategy to reach those goals, particularly in non-litigation
situations. Higher competency, technology-assisted repre-sentation can provide for more focused goals earlier in the representa-tion,
minimizing the need for lengthy representation.
III. RETURNING TO THE EXAMPLE - TRANSFORMATIVE TECHNOLOGY AND BRIEF SERVICE
Building on these ideas, ways emerge in which brief service technol-ogies
can advance the values that the ethical rules seek to protect.
Since brief service methodologies implicate so small a part of the menu of work involved in lawyering, and so small a percentage of ser-vice
innovations, they necessarily only touch on the broader range of possible ways that technology could assist in advancing these values in
other methodological contexts. 65
A. Client Autonomy
With respect to client autonomy, part I showed that technology can make high quality brief service much easier to administer. It can also
help both attorney and client to better understand the transaction and its limitations. Innovators might include the following technology-en-abled
features to maximize these goals in the context of "brief service and advice."
1. Client Diagnosis Software
As suggested above, an interactive web page could be programmed to assist the client and practitioner in determining whether brief ser-viceÐ
or any other nontraditional assistanceÐ is appropriate. 66 Such software could be extended into more general legal need diagnostic
65. Neither the changed relationships
between courts and legal providers, new re-lationships between legal providers
and community organizations, nor direct access by
the poor to legal assistance technology, are significantly reached by the foregoing dis-cussion. An example of the latter is web-based assistance in which lawyers do not
take part directly.
66. 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 recom-mended. See, e. g., Legal Services OnlineÐ Purpose (visited Feb. 22, 1999) <http://
www. fcny. org/ gadvdemo/ page03. htm> (making clear that those with out of state cus-tody orders, those under 18, and those in uncertain immigration status should not
make use of the site).
software, increasing the clients overall access to, and control over, legal support.
2. Computer Customized Advice on Access to Knowledge
At the end of every interaction, the provider of brief service could
mail to the client a printed document listing electronic resources with
additional information relevant to the client's problem. Appropriate software could select these resources according to the issues identified
during the intake advice process. For clients with Internet access, the software could generate a customized web page of links to appropri-ate
information. This page could be password protected, with a pass-word chosen by the client during the interaction. 67
3. Customized Updating of Legal Information
Similarly, those with e-mail could receive updates on changes in the
law relevant to their situation. Imagine the impact of such a distribu-tion
system during periods of rapid change in the substance or admin-istration of the law, such as those now taking place in the welfare
context. 68 Of course, the e-mail would be computer generated, depen-dent on the profile of the client established during the brief serviceÐ
perhaps enhanced by information obtained from other on-line sources. 69
4. Customized Internet Access Advice
With access to client addresses, the appropriate software could eas-ily
identify local public access Internet resources and provide those by
paper mail to the client. Once the client had obtained Internet access, the client could receive additional information electronically.
With respect to confidentiality, there is every reason to believe that
technology can guarantee as least the same level of security for "brief
service and advice" as for any other system.
67. This is analogous to the customer-individualized
airline pricing pages, gener-ated by services such as The SABRE Group,
Inc., Travelocity. com (visited Feb. 17,
1999) <http:// www. travelocity. com>.
68. 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 au-thority
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.
69. 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
1. Standardized Reminders for Advice Staff
The software that supports the brief service system could be programmed
to offer standardized reminders about obligations of
confidentiality. This may be more necessary than might at first ap-pear, since some brief service organizations employ part time staff. 70
2. Focused Attention to Areas of Risk
Similarly, the softwareÐ which will include summaries of relevant
law that is likely to implicated by callers questions 71
specific areas of risk for violation of confidentiality. This might in-clude prompts that remind the software user to emphasize to the cli-ent
the importance of maintaining secrecy when talking to others involved in the disputes, as well as warn of those individuals who have
mandated reporting duties. 72 This could be highly customized, based on the case history and the identity of those involved in the situation.
C. Conflicts of Interest
With respect to conflicts, the enhanced capacity of technology to locate
and prevent actual conflicts may make it possible to reduce bur-densome
prophylactic imputed conflict rules, but only with care and attention to possible unintended consequences.
1. Conflict Identification
Notwithstanding the brevity of service, issues of conflict of interest may emerge most particularly with respect to the possibility of the
appearance of conflict. Even if legal service providers lack the institu-tional memory to recall that opposing parties have been helped by
their organization, all would agree that it does not help the image of the profession if two parties to a custody dispute discover that they
have both talked to the same organization, or, even worse, the same person. 73
The harshest problems are removed if the advice-giver, immediately upon recognizing such a rare conflict, ceases the interaction and
makes a substitute referral. 74 Software that manages the interaction
70. See Moore & Kolasa, supra note 20, at 526.
Cf. id. at 527 (materials
include "a compilation of commonly asked legal ques-tions,
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").
72. 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. 73. 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.
74. Programs would need to find ways to decline assistance that would not dis-close to a caller that a competing party has obtained assistance. While in general such
through guided questions could help guarantee that such conflicts are
quickly identified. 75 In the family law context, appropriate
could immediately direct the advice giver to screen his or her organi-zation's records for the relative likely to be the adverse party. In
other contexts, such as housing, conflicts are far less likely and the program could be tailored to minimize this aspect of the
With respect to zealousness there is every reason to believe that brief
service, when technologically provided, can meet appropriate cli-ent
goals. Ways to advance this agenda, beyond those already listed, include:
1. Giving the Professional Focused Risk Management Information
Here again, focused brief advice software can inform the advice giver
of the risks that the client faces, and make sure that the advice
giver has done all that is possible to minimize these risks. The software could deliver a customized output, based on the information
already provided. For example, particular information on the caller's age and home ownership status could trigger the software to highlight
the additional risks that the elderly face with respect to consumer credit and the home, even if the caller had not identified that issue. 77
2. Pattern-Based Risk Assessment
Building on this, the software could also perform a risk assessment
based not on experts' predictions, but rather on ongoing statistical
analysis of issues identified by other similar users. For example, if the software found that women who identified a domestic violence and a
school problem also frequently had a welfare problem, the software could suggest the possibility of that additional area of need. Such sys-tems
could be designed to be self-improving and self-monitoring.
information would not be harmful, it could literally be fatal, for example, in the do-mestic violence context.
75. 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 Recommenda-tions, supra note 6, Recommendation 60( a), at 1776.
76. This would help advocates of these
programs to avoid becoming bogged down in demanding and costly technicalities
that have no practical relationship to the un-derlying
values of the ethical rules.
77. 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>.
Thus, changes in law would lead to changes in recommendation, with-out lawyer or programmer interference. 78
3. Statistics on Effectiveness of Approaches and Players
During the interaction, the practitioner could use computer-gener-ated,
customized statistics on the likely outcomes of various strate-gies.
79 For example, in an eviction situation, the advice giver might
have statistics on the success rate of various claims in particular courts or even in front of particular judges. 80 Such information ensures that
the advice giver will be as zealous as possible in the particular context of the situation.
The technology implementations enumerated above would enhance the competence
of limited service by providing information and skill
to the advice giver and focusing the interaction on client needs. In addition, brief service systems can employ technology-assisted moni-toring
and quality assurance tools.
1. Follow-Up with the Client
Software can make it easier for service providers to follow up with
the client and measure satisfaction. Software can produce satisfaction
surveys. 81 Technology can generate phone, mail, or e-mail question-naires, contextualized to the actual help the client received, and can
make data analysis automatic.
2. Institutional Follow-Up
Systems could also be built that followed up, and measured results,
with the institutions with which the client dealt, such as welfare agen-cies,
the schools, or the courts. Indeed, such follow-up is ultimately
78. This is similar to software that
automatically suggests that book or music buy-ers might enjoy additional
titles based on the buying patterns of the entire customer
database. See Amazon. com, Inc., supra note 77.
79. 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 Hard-ware and Humans Will Merge in the Courtroom of the Future, Crim. Just., Spring 1997,
80. One of the advantages that legal
services providers have over smaller organi-zations
is the ability to generate such systematic and integrated information. Cf. Rich-ard 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).
81. See Fund for the City of New
York, Housing Court Online: Helping You Pre-pare 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).
critical to effective evaluation of innovation and comparison of service methodologies.
3. Quality Assurance Review
Tapes of conversations or on-line notes can be reviewedÐ and the
results analyzed statistically in combination with the above informa-tionÐ
to identify when the wrong service methodology is being used. 82
Technology can also minimize the risks of brief service related to continuity.
1. Highlighting Areas of Potential Future Need
To minimize the costs of discontinuity in the "brief service and ad-vice"
context, appropriate software could be programmed to help the
client identify those situations that are most likely require fuller repre-sentation. In the welfare context, software could identify future criti-cal
dates, such as expiration of welfare eligibility. 83 The client could use a "checklist" on a regular basis as her case proceeded. A web
based version could be updated by the brief advice provider through e-mail, even if it were not in ongoing direct contact with the clientÐ or
viewed her or him as a client.
2. Case Monitoring by System Linking
As described above, linking court and brief service provider com-puter
systems might enable the brief service provider to continue to
monitor cases and intervene when a crisis erupted or when events in court indicated the need for intervention. Upon such a triggering
event, the brief service client would be contacted automaticallyÐ per-haps electronicallyÐ and the attorney-client interaction resume for
full, continuous representation. Electronic systems would also make it easier to keep track of changing client addresses.
G. The Central Caution: Consumer Capacity and Consumer Protection
Though the potential benefits enumerated above are real, integra-tion
of technology into nontraditional representation scenarios is not
82. See Moore & Kolasa, supra
note 20, at 528 (reporting that a review of comput-erized case files
in one hotline program "revealed quality problems"). The reason for
the problem was diagnosed as a lack of desktop resources.
Wendy Pollack, Temporary
Assistance for Needy Families: Assessments, In-dividual
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).
failsafe. These measures require a relatively informed and intelligent
consumer of legal assistance. 84 Technologies must be
deployed to en-sure
that consumers who are, in fact, not capable of playing an affirm-ative role in the representation relationship are not made worse-off
than they would have been without such help. 85
Regardless of the conclusion one reaches about the risks associated
with any particular innovation, this analysis strongly suggests that the
ethical rules that govern our profession should not be construed to prohibit all nontraditional service delivery. Rather, the rules and their
interpretation place two responsibilities upon innovators and non-traditional service providers: (1) ensuring that the alternative service
methodology incorporates technology and includes other helpful sup-ports to protect the values that guide the rules 86 and; (2) ensuring such
service alternatives are employed only when appropriate and with the right safeguards to protect against inappropriate use with inappropri-ate
IV. TOWARDS A GENERAL ANALYSIS: HOW THE ETHICAL RULES AND THEIR ADMINISTRATION
SHOULD RELATE TO
CHANGES IN TECHNOLOGY
Drawing on the foregoing discussion of the general opportunities that
technology offers and its possible applications in one context, this
Response concludes with a number of recommendations as to how the evolution and administration of the ethical rules might be structured
to assist in the use of technology to advance an access to justice agenda while ensuring the protection of ethical values.
1. The ethical implications of an innovation or a technology should
be based on the underling values, rather than on the prior techni-cal
rules that have developed in response to an earlier technologi-cal environment.
The above "brief service and advice" example suggests the limits of
analyzing an innovation merely terms of traditional service scenarios
rule applications. Rather, we should focus on the impact an innova-
84. See McNeal, supra note 4, at 323 (discussing client competency).
85. Cf. Recommendations, supra note
6, at Recommendation 60( b), at 1777 (rec-ommending
that a diagnostic mechanism of some form should be required for any assistance beyond "brief specific advice"). In an ideal world, with services fully avail-able
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.
86. Such values include avoiding second-rate service.
87. 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).
tion may have on the more general values underlying the rules. 88
A rigid textual approach might have led to the conclusion that "brief
service and advice" fails to provide for informed consent concerning the limitations upon the representation. However, broader analysis
shows that the technology can be deployed to realize such consent to a far greater degree than might first have appeared possible. The task
of the rules then becomes ensuring that the technologies are deployed in an appropriate manner so that consent will be sought and obtained.
2. The rules governing technological or service innovation should be as general as possible.
As a corollary, new rules should encourage flexibility by stating their
principles as generally as possible to accommodate the rapidly
developing state of the art. For example, a specific set of rules requir-ing that brief service be provided only to clients with appropriate
cases and in appropriate circumstances should be stated generally. A rule that mandates a particular screening procedure with a particular
technology, threshold questions, or diagnostic system is doomed to be inadequateÐ even if such measures are considered state of the art
when the rule is drafted. The only thing that can be predicted with any certainty is that the state of the art will change rapidly.
3. Ethical rules should be structured to encourage experimentation
and innovation, provided such innovation and experimentation
seeks to meet the goals embodied by the rules.
Similarly, ethical rules should be written with a flexibility that stim-ulates,
rather than penalizes, experimentation. Particularly in the
non-market context, rules and penalties should emphasize actual ef-fect, state of mind, and intent, rather than technical compliance with
prior rules. Perhaps a safe harbor is appropriate for certain kinds of experimentation, provided that certain standards are met. Such a safe
harbor would not determine whether a technical violation were com-mitted, but rather would temper the sanctions for well-intentioned
88. For example, in Unauthorized Practice
of Law Commission v. Parsons Tech-nology, 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 challenged software] they will have a 'legally valid' docu-ment that's 'tailored to [their] situation' and 'best meets their needs. '" Id. at *9. It
failed, however, to seriously evaluate the interest of the state in providing broad ac-cess to justice for those same citizens.
89. Cf. Jerold S. Auerbach, Unequal
Justice 110-14 (1977) (discussing a 1920s de-bate 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).
4. The rules should be structured to ensure that innovations are
used appropriately, by focusing on the development of circumstance-sensitive
and self-monitoring technologies.
If the legal community is to encourage innovation, it must also pro-vide
protections to ensure that any innovation is only used appropri-ately.
Rules can be used to impose on researchers and innovators a responsibility to make a good faith effort to limit the use of new tech-nologies
and alternative methodologies in appropriate environments and with appropriate clients. For example, developers of court prepa-ration
domestic violence web sites have always been careful to limit access to those sites, creating an environment that is safe and support-ive
for domestic violence victims.
The legal community can build upon evaluation and feedback tech-nologies
to ensure that this rule is followed. For example, on-line us-age
timing technologies, which monitor whether a user gets blocked or abandons an attempt to get help, might be used to determine whether
a particular technology is inaccessible and inappropriate for a particu-lar user or class of users. 90
5. The rules should be structured to encourage additional develop-ment in the technology itself, not just its applications.
Perhaps most importantly, the rules must find ways of affirmatively
encouraging technological innovation. An important example is in
the interface area. A major concern regarding technology-assisted legal service is that the poor lack the training and experience to use
computers. Innovations such as touch screens 91 and voice recogni-tion, 92 and their application to broadly distributed access systems such
as the Internet, will be crucial to expanding alternative means of assistance to the poor.
Similar innovations can be accomplished by safe harbor provisions for
good faith experimentation, 93 and by emphasizing the
90. See generally Susan L. Keilitz
& Barbara C. Kelly, Internet-based Domestic Violence Court Preparation
System Evaluation attachment 2 (1998) (publishing
charts of timing data).
91. See, e. g., Housing Court OnLine,
note 81 (providing touch screen ena-bled
court preparation system in the eviction prevention context).
92. This is a technology that is advancing
with particular speed. It is also a partic-ularly
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 thenÐ many years agoÐ 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"Ð" speak to me."
93. 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 Pro-fessional
Conduct Rule 8.4 cmt. 2 (1998) (noting with respect to Rule governing mis-conduct, 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 refer-
of innovators to keep pushing. The ethical rules might also emphasize
the obligation of the legal profession to collaborate, rather than com-pete,
in the low cost deployment of these technologies. 94
6. The rule-making process should be restructured to incorporate the technological perspective.
Finally, the rule-making process must fully incorporate the techno-logical
perspective. Just as the court in Reno v. American Civil Liber-ties
Union 95 required technological insight to fully understand the Internet and render an appropriate judgement, so too must the ethical
rule making process continuously take stock of technological innova-tions to reflect the true potential of these rapid changes. This goal
may be achieved by altering the selection process for ethical rule-mak-ing and disciplinary bodies to incorporate the technological perspec-tive,
by appointing knowledgeable special masters in appropriate ethics cases, and by focusing attention to these matters by the national
In summary, this Response urges re-conceptualization of the rela-tionship between the ethical rules and technology-assisted innovation.
We must come to see technology not as the enemy of ethical practice,
but as its ally. If, as lawyers and policy makers, we learn to take full
advantage of the potential technology offers, we will truly enhance and advance the ethical practice of law.
ence 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, mean-ing,
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
94. This might be analogized to, and
seen as growing from, the recommended "as-pir[
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).
95. 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. 28