Ethics Updates & Opinions

The following has been republished, condensed and updated by Total Attorneys as of September 2012, with permission from ABA publishing and comes from the book Virtual Law Practice: How to Deliver Legal Services Online, by Stephanie L. Kimbro, Esq. published by the ABA/LPM, October 2010. Please note that this is a sampling of state advisory opinions for guidance only. Please contact your state bar or other regulatory entity to determine which rules and regulations of professional conduct will apply in your jurisdiction(s).

Select a Topic to Review Updates and Opinions


Delivering Legal Services Online

“Suggested Minimum Requirements for Law Firms Delivering Legal Services Online,” ABA LPM eLawyering Task Force (October 15, 2009)

“Draft Suggested Minimum Requirements for Law Firms Delivering Legal Services Online,” published for the purpose of accepting comments by the ABA LPM eLawyering Task Force (October 2009),

State Bar of California draft formal ethics opinion (No. 10-0003) (November 2011) regarding virtual law offices. Florida State Bar Opinion 00-4, FL Eth. Op. 00-4, 2000 WL 1505453, (Fla.St.Bar Assn.), (July 15, 2000). New York State Bar Association Committee on Professional Ethics Opinion 899 “Solicitation; answering legal questions on the Internet”, (December 21, 2011)

New York State Bar Association Committee on Professional Ethics Opinion 709, NY Eth. Op. 709, 1998 WL 957924, (N.Y.St.Bar.Assn.Comm.Prof.Eth.) (September 16, 1998),

North Carolina Bar revised version of a proposed ethics opinion entitled “Subscribing to Software as a Service While Fulfilling the Duties of Confidentiality and Preservation of Client Property”, 2011 FEO 6, October, 2011. North Carolina Bar 2005 Formal Ethics Opinion 10, “Virtual Law Practice and Unbundled Legal Services”, 2005 NC Eth. Op 10, 2006 WL 980309, (N.C.St.Bar.) (January 20, 2006)

New York State Bar Association Committee on Professional Ethics Opinion 709 (September 16, 1998), “Use of Internet to Advertise and to Conduct Law Practice Focusing on Trademarks; Use of Internet E-Mail; Use of Trade Names,” NY Eth. Op. 709, 1998 WL 957924, (N.Y.St.Bar.Assn.Comm.Prof.Eth.) (September 16, 1998),

Ohio Supreme Court Opinion 99-9, “Lawyer-Client Relationship; Advice to Client; Initial Consultation; Internet,” OH Adv. Op. 99-9, 1999 WL 1244454, (Ohio Bd.Com.Griev.Disp.) (December 02, 1999),

Oregon State Bar Ethics Opinion 2005-137 (August 2005), “Unauthorized Practice of Law: Joint Venture to Produce Interactive Legal Information System,” OR Eth. Op. 2005-137, 2005 WL 5679561, (Or.St.Bar.Assn.), (August 2005),

Pennsylvania Ethics Opinion 2009-053, Pennsylvania Bar Association, (issued 2009)

Review of this opinion was published in the Pennsylvania Lawyer Ethics Digest (January/February, 2010). Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility, FEO 2010-200, “Ethical Obligations on Maintaining a Virtual Office for the Practice of Law in Pennsylvania” (only published online for members of the PA Bar). Washington State Bar Informal Opinion 1916 (issued 2000), Washington State Bar Association,

Virtual Law Practice Stephanie’s personal blog covering technology, virtual law practice and ethical concerns for US attorneys.


Addressing Electronic Storage or Transmission of Law Office Data (SaaS and other forms of Cloud Computing)

Alabama State Bar Ethics Op 2010-02 “Retention, Storage, Ownership, Production and Destruction of Client Files” (2010)

Arizona State Bar, Opinion 09-04, “Confidentiality; Maintaining Client Files; Electronic Storage; Internet” (December 2009),

Arizona State Bar Opinion 05-04, “Electronic Storage; Confidentiality” (July 2005)

Arizona State Bar Opinion 07-02, “Maintaining Client Files; Client’s Papers and Documents; Electronic Storage” (June 2007)

California State Bar Ethics Op 2010-179 (December, 2010), Issue: “Does an attorney violate the duties of confidentiality and competence he or she owes to a client by using technology to transmit or store confidential client information when the technology may be susceptible to unauthorized access by third parties?” State Bar of California Standing Committee on Professional Responsibility and Conduct, Formal Opinion Interim No. 08-0002, regarding third party storage of confidential client information. Florida State Bar Opinion 06-1, FL Eth. Op. 06-1, 2006 WL 2502807, (Fla.St.Bar Assn.) (April 10, 2006)

Illinois Ethics Opinion 10-01 (July 2009), regarding a law firm’s use of an outside administrator to manage the firm’s computer network even if the network is accessed remotely.

Iowa Ethics Opinion 11-01 (September, 2011) regarding SaaS.

Maine Ethics Opinion 194 (June 30, 2008),

Maine Ethics Opinion 183 (January 28, 2004),

Massachusetts Bar Ethics Opinion 05-04,

Massachusetts Bar Association Ethics Opinion 12-03, regarding cloud computing, May 17, 2012

Missouri Advisory Committee of the Supreme Court of Missouri, Formal Opinion 127, “Scanning Client Files” (May 19, 2009),

Nevada State Bar Standing Committee on Ethics and Professional Responsibility Ethics Opinion No. 33 (February 9, 2006),

New Jersey Advisory Committee on Professional Ethics Opinion 701, “Electronic Storage and Access of Client Files” (184 N.J.L.J. 171, April 10, 2006) (15 New Jersey Lawyer, N.J.L. 897, (April 24, 2006),

New York State Bar Association, Opinion 842, September 10, 2010 regarding online storage providers storing confidential client information.

North Carolina 2008 Formal Ethics Opinion 5, “Web-Based Management of Client Records” (July 18, 2008),

North Dakota State Bar Association Ethics Committee Opinion No. 99-03 (June 21, 1999),

Oregon State Bar Formal Ethics Opinion No. 2011-188, “Information Relating to the Representation of a Client: Third-Party Electronic Storage of Client Materials”

Pennsylvania Bar Association’s Committee On Legal Ethics And Professional Responsibility Formal Opinion 2011-200, Ethical Obligations For Attorneys Using Cloud Computing/Software As A Service While Fulfilling The Duties Of Confidentiality And Preservation Of Client Property, (November 2011).

Virginia State Bar Ethics Opinion No. ABA-398 (October 27, 1995). This is not specifically related to online storage but to the related issue of allowing a computer maintenance company to access lawyer’s files on the computer and duty to protect client’s confidential information in those files.

Virginia State Bar Ethics Opinion No. 1818 (September 30, 2005).

Vermont Ethics Opinion 2003-03 (undated) regarding the law firm’s use of an outside computer consultant to handle database files containing client confidential information.

Vermont Ethics Opinion No 2010-6 (2012) allowing the use of SaaS with “reasonable precautions” to protect confidentiality:


Electronic Communications in General

ABA Standing Committee on Ethics and Prof. Responsibility, Formal Opinion 11-459 “Duty to Protect the Confidentiality of E-mail Communications with One’s Client.” (August 2011)

ABA Formal Ethics Opinion No. 99-413, “Protecting the Confidentiality of Unencrypted EMail” (March 10, 1999)

Alaska Ethics Opinion No. 98-2, “Communication by Electronic Mail”, AK Eth. Op. 98-2, 1998

WL 156443, (Alaska Bar.Assn.Eth.Comm.) (January 16, 1998)

Arizona State Bar Opinion 97-04, “Computer Technology; Internet; Advertising and Solicitation; Confidentiality” (April 1997),

California State Bar Formal Opinion No. 2007-174, “Electronic Client Files”, CA Eth. Op. 2007-174, 2007 WL 2461914, (Cal.St.Bar.Comm.Prof.Resp.) (2007),

Delaware State Bar Ethics Opinion 2001-2 (issued 2001),

District of Columbia Bar Opinion 281, “Transmission of Confidential Information by Electronic Mail” (February 18, 1998),

Florida State Bar Opinion 06-2, FL Eth. Op. 06-2, 2006 WL 5865322, (Fla.St.Bar Assn.) (September 15, 2006),

Kentucky Bar Association Ethics Opinion KBA E-403 (March 1998),

Massachusetts Bar Ethics Opinion No. 00-1 (issued 2000),

Michigan State Bar Ethics Opinion RI-276 (July 11, 1996),

Minnesota State Bar Lawyers Professional Responsibility Board Opinion No. 19, “Using Technology to Communicate Confidential Information to Clients” (January 22, 1999),

Missouri Informal Advisory Opinions 990007 (issued 1999), 970230 (issued 1997), 970161, “Client-Lawyer Relationship, Confidentiality of Information” (issued 1997),

Nevada State Bar Standing Committee on Ethics and Professional Responsibility Ethics Opinion No. 32 (March 25, 2005),

New York State Bar Association Committee on Professional Ethics Opinion 749, “Use of Computer Software to Surreptitiously Examine and Trace E-Mail and Other Electronic Documents”, NY Eth. Op. 749, 2001 WL 1890308, (N.Y.St.Bar.Assn.Comm.Prof.Eth.)

New York State Bar Association Committee on Professional Ethics Opinion 782, “E-Mailing Documents that May Contain Hidden Data Reflecting Client Confidences and Secrets,” NY Eth. Op. 782, 2004 WL 3021157, (N.Y.St.Bar.Assn.Comm.Prof.Eth.) (December 08, 2004).

North Dakota State Bar Association Ethics Committee Opinion No. 97-09 (September 4, 1997),

Ohio, Supreme Court of Ohio Board of Commissioners on Grievances and Discipline Opinion 99-2, OH Adv. Op. 99-2, 1999 WL 231598, (Ohio Bd.Com.Griev.Disp.) (April 09, 1999),

South Carolina Bar Ethics Advisory Opinion 97-08 SC Adv. Op. 97-08, 1997 WL 582912 (S.C.Bar.Eth.Adv.Comm.) (issued June 1997)

Utah State Bar Ethics Opinion 00-01, UT Eth. Op. 00-01, 2000 WL 543777, (Utah St.Bar.) (March 09, 2000)

Virginia State Bar Ethics Opinion 1818, “Whether the Client’s File May Contain Only Electronic With No Paper Retention” (September 30, 2005)

Virginia State Bar Ethics Opinion 1791, “Is it Ethical Not To Meet Face-To-Face With Your Client if you Communicate by E-Mail or Telephone Instead?” (December 22, 2003)

Washington State Bar Informal Opinion 2175 (issued 2008),

West Virginia State Bar Ethics Opinion 2009-01 (June 10, 2005), regarding metadata in electronic documents,

Wisconsin State Bar Ethics Opinion E-00-03, “Electronic files; client’s demand for electronically stored documents”(issued 2000),


UPL over the Internet

New York City Ethics Op. 2000-1 “Duty to Preserve Confidences of a Prospective Client (PreRetention Communication); Conflict of Interest”, NYC Eth. Op. 2001-1, 2001 WL 1870203, (N.Y.C.Assn.B.Comm.Prof.Jud.Eth.) (March 01, 2001)

Ohio Supreme Court Ethics Opinion 2001-2, OH Adv. Op. 2001-2, 2001 WL 417663, (Ohio Bd.Com.Griev.Disp.) (April 06, 2001),


How to Avoid UPL over the Internet

Arizona Ethics Opinion 99-10, “Directories; Legal Directories; Specialization; Biographical Data; Internet,” (issued September1999),

California Formal Ethics Opinion 2001-155, 17 Law. Man. Prof. Conduct 456 (issued 2001),

Massachusetts Ethics Opinion 98-2 (issued May 29, 1998),

North Carolina Ethics Opinion 2000-3 (July 21, 2000),

Philadelphia Ethics Opinion 98-6, 14 Law. Man. Prof. Conduct 130 , Phila. Eth. Op. 98-6, 1998 WL 112691, (Phila.Bar.Assn.Prof.Guid.Comm.) (March 1998)


Establishing the Attorney-Client Relationship Online

Arizona Ethics Opinion 02-04, 18 Law. Man. Prof. Conduct 714 “Confidentiality; E-mail; Internet; Initial Consultation; Disclaimers” (issued September 2002),

Nevada Ethics Opinion 32, 21 Law. Man. Prof. Conduct 299 (March 25, 2005),

North Carolina Ethics Opinion 2000-3, “Responding to Inquiries Posted on a Message Board on 14 the Web,” (July 21, 2000),

Philadelphia Ethics Opinion 98-6, 14 Law. Man. Prof. Conduct 130, Phila. Eth. Op. 98-6, 1998

WL 112691, (Phila.Bar.Assn.Prof.Guid.Comm.) (March 1998),

Vermont Ethics Opinion 2000-04 (issued 2000)


Duty to Prospective Clients Online

ABA Model Rule 1.18, “Client-Lawyer Relationship: Duties To Prospective Client”

ABA Formal Ethics Op. 90-358, “Protection of Information Imparted by Prospective Client”, (September 13, 1990)

Arizona Ethics Opinion 02-04, 18 Law. Man. Prof. Conduct 714, “Confidentiality; E-mail; Internet; Initial Consultation; Disclaimers” (issued September 2002),

California Formal Ethics Opinion 2005-168, CA Eth. Op. 2005-168, 2005 WL 3068090, (Cal.St.Bar.Comm.Prof.Resp.)(2005),

New York City Ethics Opinion 2001-1, “Duty to Preserve Confidences of a Prospective Client (Pre-retention Communication); Conflict of Interest,” NYC Eth. Op. 2001-1, 2001 WL 1870203, (N.Y.C.Assn.B.Comm.Prof.Jud.Eth.) (March 01, 2001),


Accepting Credit Card Payments from a Client

California State Bar Formal Opinion 2007-172, CA Eth. Op. 2007-172, 2007 WL 1721961, (Cal.St.Bar.Comm.Prof.Resp.) (2007),

New Mexico State Bar Advisory Opinion 2000-1, “Use of Credit Cards to Fund Trust Account Retainer Deposits” (2000),

Virginia State Bar, Opinion 186A, “Participation in Plan Providing for Use of Credit Cards for Payment of Legal Fees and Expenses” (June 18, 1981)

Virginia State Bar, Opinion 999, “Law Firm — Credit Cards” (November 13, 1987)

(accessed June 8, 2010)

Virginia State Bar, Opinion 1848, “Use of Credit Cards for Legal Services”, a request to revisit Opinion 186A, (April 14, 2009)

American Bar Association Formal Opinion Formal Opinion 00-419, “Use of Credit Cards for Payment of Legal Fees”, (July 7, 2000)


Residency Requirements Affecting Virtual Law Practice

Missouri State Bar Informal Advisory Opinion 970098 (issued 1997),

New Jersey Advisory Committee on Professional Ethics and the Committee on Attorney Advertising, Joint Opinion, ACPE 718/CAA 41 (March 2010),


Cloud Ethics Opinions Around the U.S

American Bar Association, Legal Technology Resource Center – Cloud Ethics Opinions Comparison Chart


Rules of Professional Responsibility and Attorney Advertising

ABA Model Rule 7.2 directly addresses attorney advertising, with the remaining Rules 7.1-7.6 addressing related issues such as solicitation. Many states have adapted these rules rather than adopting them wholesale, so it’s important to be aware of the specific rules in your state and the ethics opinions interpreting those rules.

As a starting point, the American Bar Association offers this helpful resource which identifies state variations from the ABA Model Rules:

Differences Between State Advertising and Solicitation Rules and the ABA Model Rules of Professional Conduct (January, 2011)

You can also find a link to the applicable rules by selecting your state from this menu:

State by State Ethics Rules and Resources


Key Cases and Opinions re Attorney Advertising

Recent Developments
Public Citizen, Inc. et al. v. Louisiana Attorney Disciplinary Board, et al.: The 5 Circuit struck down several restrictions on attorney advertising, including limitations on factual statements re past results and restrictions on the use of nicknames, mottos or “monikers”. The court upheld prohibitions on promising favorable results.

Alexander v. Cahill: The 2nd Circuit Court of Appeals in large part upholds a district court decision striking down most of the new advertising and solicitation restrictions which were to take effect in New York in February of 2007 as violating the 1st Amendment. The United States Supreme Court later declined to review the case.

Key Historical Cases
Bates v. The State Bar of Arizona, 433 U.S. 350 (1977): The seminal U.S. Supreme Court case holding that the First Amendment prohibited an outright ban on attorney advertising; this is also the case in which Justice Blackmun declared the belief that lawyers were somehow “above” trade an anachronism.

Central Hudson Gas & Electric Corp. v. Public Services Commission of New York, 447 U.S. 557 (1980): Establishes a four-part test for determining whether restrictions on commercial speech comport with the 1st Amendment.

Peel v. Attorney Registration & Disciplinary Commission, 496 U.S. 91, 108 (1990): Striking down disciplinary action against attorney for listing truthful non-misleading information on certification on letterhead, and rejecting a claim that certain speech was potentially misleading for lack of empirical evidence.

Lynch v. Alabama, 655 So.2d 982 (Ala.1995) : The Supreme Court of Alabama held that R.W. Lynch, a California advertising agency specializing in attorney advertising, did not operate a lawyer referral service when it produced its “Injury Helpline” television marketing program.

State Developments
On July 15, 2011 the Ethics Committee at the North Carolina State Bar adopted Formal Ethics Opinion 10, Lawyer Advertising on Deal of the Day or Group Coupon Website, ruling that attorneys can advertise on a website that offers daily discounts to consumers where the website company’s compensation is a percentage of the amount paid to the lawyer if certain disclosures are made and certain conditions are satisfied.