E-Lawyering, the Aba's Current Choice of Ethics Law Rule & the Dormant Commerce Clause: Why the Dormant Commerce Clause Invalidates Model Rule 8.5(b)(2) When Applied to Attorney Internet Representations of Clients

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ABSTRACT

The Internet is becoming the primary manner in which some attorneys serve clients. States have already taken differing views on whether it is acceptable for an attorney to engage in electronic representations of clients. Thus, determining what jurisdiction's law applies to such attorney conduct can be very important in deciding whether this activity constitutes the unauthorized practice of law and, if not, determining the exact duties of an attorney in such representations.

This Article argues that the current version of Model Rule of Professional Responsibility 8.5(b), which governs choice of ethics law, can be interpreted to apply the legal ethics rules of the state in which the attorney is located to all electronic representations. The dormant commerce clause, however, prohibits a state from regulating activity that does not occur or have a significant effect in its physical boundaries. It is not clear that the state in which the lawyer is located has a significant enough interest, under a dormant commerce clause analysis, to prohibit, or even regulate, this type of representation in most situations. Often, the effect of an electronic representation will be born wholly by the other state where the client is located, and this state's ethical regime would be ignored under the likely interpretation of Model Rule 8.5(b)(2).

Therefore, jurisdictions should either eliminate the language from the rule that results in the application of the ethics regime of the attorney's home jurisdiction in all situations or define key terms in the rule to focus the analysis on the location of the client affected and the jurisdiction where the legal advice provided is acted upon. Either option will allow for the application of the ethics rules of the jurisdiction where the client is physically located when the most significant effect from the representation is felt in the client's home jurisdiction. Because this state has a much more significant interest in protecting the resident client from potentially damaging legal representations, this jurisdiction more properly should determine the manner in which attorneys can represent its residents and whether any constraints should be placed on electronic representations.

INTRODUCTION ................................................. 589

I. THE GROWTH OF E-LAWYERING ................................ 593

A. The Different Types of E-Lawyering .......................... 593

B. Demand for E-Lawyering .................................. 595

C. Formation of Attorney-Client Relationship Through E-Lawy ering ..598

II. HISTORICAL TREATMENT OF CHOICE OF LEGAL ETHICS LAW BY MODEL CODE AND MODEL RULES ..................................... 605

A. Model Code of Professional Responsibility and the Original 1983 Version of Model Rule 8.5 .................................. 605

B. 1993 Version ofModelRule 8.5 ............................. 607

C. 2002 Version ofModelRule 8.5 ............................. 610

III. CASE LAW AND ETHICS OPINIONS AIDING IN INTERPRETING THE CURRENT LANGUAGE OF MODEL RULE 8.5(B)(2) ................... 612

IV. THE DORMANT ASPECT OF THE COMMERCE CLAUSE ................ 620

V. APPLICATION OF THE DORMANT COMMERCE CLAUSE TO STATE REGULATION OF THE INTERNET ................................. 624

A. Case Law Applying Dormant Commerce Clause to State Regulation of Internet Activity .............................. 624

B. Reconciling the Cases Dealing with State Regulation of the Internet According to the Degree of Anonymity and Interactivity of the Particular Internet Communication Affected by the Applicable Regulation ..................................... 635

VI. DORMANT COMMERCE CLAUSE ANALYSIS OF CURRENT ABA CHOICE OF ETHICS LAW RULE, MODEL RULE 8.5(B)(2), WHEN APPLIED TO E-LAWYERING .............................................. 638

A. The Burden on E-Lawy ering of Complying with Different State Ethical Regimes . …