INTRODUCTION
1. This note is to give guidance to individual Barristers and Chambers as to their use of (a) e-mails and (b) internet publishing in their professional practice.
A. E-MAIL SECURITY
2. Lack of Security
The use of e-mail for the transmission of instructions, correspondence and court orders is becoming the norm. E-mail is not completely secure.
3. Consequences for Barristers
Barristers are reminded of their obligations under Para 702 of the Code to preserve client privilege and confidentiality. The possibility cannot be excluded that the Courts will impose liability upon professionals for negligence for losses arising out of the sending of e-mails of confidential, commercially or litigation sensitive, or privileged communications in an unencrypted or unprotected form which are misdirected or published to the disadvantage of the owner or intended recipient. Liability may be imposed more readily if the systems for encryption are free, or inexpensive, and readily available.
4. Confidentiality Notices
It is likely to be sensible to include as a matter of course in all e-mail communications a confidentiality/privacy/privilege notice at the top of the e-mail as appears in faxes. Example:
"From: A. Barrister,
Address
Phone and Fax numbers
To: [Name and address of Recipient]
Privacy and Confidentiality Notice
This message is confidential and intended solely for the person to whom it is addressed. It may contain privileged and confidential information. If you are not the intended recipient you must not read, copy, distribute, discuss or take any action in reliance on it. If you have received this information in error, please notify me or my clerk as soon as possible on the above telephone number. Thank you."
5. Track Delivery
In the case of particularly important e-mails consideration should be given to the use of a tracking system to ensure delivery to the correct address. Chambers should also take care where incoming e-mails are received centrally that they are transmitted to the correct person in chambers.
6. Care in Clicking
Great care should be taken in using an automatic address book to ensure the right recipient's name is highlighted as it is very easy to click on an adjacent name by accident and not notice. (Also if networked, it is easy to click on "Send All", rather than "Send".)
7. BMIF Cover
A transmission which goes astray or which is the subject of hacking will be covered by BMIF as if it was misaddressed in the post or document exchange; c.f. fax transmissions.
8. Virus Checking
Regular up-dating of virus checking is essential, particularly with increasing usage of the internet. Networked systems are especially vulnerable and the damage may be many times greater than on an individual personal computer. Daily updates can be obtained from commercial providers of software.
B. INTERNET PUBLISHING
9. Possibilities
The possible types of internet publishing by Barristers are:
(i) Information about Chambers, e.g. on a Chambers' web site
(ii) Information about individual members of chambers
(iii) Legal information in the form of books, articles, lecture transcripts or notes, case and statute commentaries and up-dates and procedural guidelines.
(iv) Advice - generic, specific or interactive advice.
These may be published on the internet by:
(a) open access, with or without a fee, or
(b) by password access - for a fee or under some other contractual or quasi-contractual arrangements.
10. Main Considerations
In all internet publishing it is important to consider the following questions:
(i) What is the published material? Is it business information or legal information that is capable of creating a liability for negligent misstatement?
(ii) If the information may be case-specific advice, is the recipient a client? If so is he a solicitor, foreign lawyer or does he have licensed access?
(iii) Is the activity in compliance with the Code of Conduct? If the activity is giving case-specific advice without a professional retainer it will be in breach of the Code.
(vi) Is the activity covered by BMIF? BMIF does not cover liabilities arising out of legal authorship, and activities outside the scope of the Code may not be covered by BMIF as part of the Insured Practice.
(v) If the material constitutes advertising, does it comply with the Code, and is it legal, decent honest and truthful?
11. Chambers' Web Site
Remember that a set of Chambers is not a legal entity. BMIF does not cover a set of Chambers as such, although BMIF cover afforded to individual barristers may apply in respect of their potential liability for Chambers' publications. Chambers' publications are regarded as marketing. The web enables Chambers' publications to be available not just to English solicitors who are familiar with the concept of a set of barristers' chambers, but to the whole world - most people are unaware of the nature of a set of chambers. It is therefore very important to ensure that Chambers cannot be perceived by members of the public (or commercial entities) to be offering legal services or advice on which they can rely to order their affairs.
A Chambers' web site, or other internet dissemination of information about Chambers should therefore explain:
(i) the legal status of Chambers,
(ii) the fact that services are provided by the members of chambers as individuals,
(iii) if any page accessed through the web site includes any articles, case notes or other legal information, as opposed to merely business information such as is found in the legal service directories, then it should include a disclaimer.
Example:
(i) Chambers -
"The Chambers of Rumpole QC," or "Vector Chambers" (as the case may be)
This web site is produced by [the Chambers of Rumpole QC] a set of barristers' chambers. Chambers has no collective legal identity of any kind; all barristers practising from a set of chambers are self-employed individuals. By agreement of the barristers in these Chambers, this web site has been prepared for information purposes only. [Any views expressed, or comments made on the law in an article, commentary or note on this web site are not necessarily the opinions of any member of Chambers other than the author.] This web site was last up-dated on […..].
[(ii) Disclaimer
The information and any commentary on the law contained on this web site is provided free of charge for information purpose only. Every reasonable effort is made to make the information and commentary accurate and up to date, but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by any member of Chambers. The information and commentary does not, and is not intended to, amount to legal advice to any person on a specific case or matter. You are strongly advised to obtain specific, personal advice from a lawyer about your case or matter and not to rely on the information or comments on this site. [By clicking on I AGREE, you accept that you have no right or recourse against the providers of information on this web site.]
12. Individual Barrister's Web Sites
The crucial point is that a Barrister may only give advice to a professional client; the guidance above in relation to a Chambers web site applies. If he or she advises a person who is not a professional client as defined by the Code of Conduct he or she will be in breach of the Code. Hitherto the publication by a barrister of legal information, case summaries or commentaries or other legal authorship has tended to be indirect, through a legal publisher in an article or book. Internet publishing creates a direct relationship with the individual recipient.
Conventional legal authorship falls outside the scope of "Legal Services" as defined by the Code, and any liability arising therefrom is not covered by BMIF. Care must be taken to ensure that any such authorship cannot give rise to the assumption of responsibility towards the reader. If any legal information given on a web site could be taken to be advice - for example a commentary which gives examples which may be similar to an accessor's case - then a disclaimer such as suggested above should be used.
13. Linked Web Sites
If a Chambers' or individual barrister's web site may be accessed through a link (for example from a firm of solicitors) care should be taken to ensure that liability to that site visitor (for example the solicitor's client) is not created. (It is also contrary to the Code to take money for a referral, or introduction fee, which may arise in a link).
14. Three Examples
(i) A CPR alerting service. A Barrister might have a personal web site with a passworded area giving an alerting service on new developments, cases etc with commentary on the CPR. Because it is passworded he knows who uses it and sends them e-mail updates. If he did this through a conventional publisher they would charge for it, and pay him a fee as an author. If the consumers are not professional clients and are able to interact so as to receive advice on specific issues, then this would be in breach of the Code. Moreover, if a fee is charged to access the site then a contractual relationship is created which may attract stricter liability rules than a negligence claim, and it is unlikely that any disclaimer would assist. If the information is incomplete, inaccurate or out of date this may give rise to a claim in relation to which the barrister may wish to arrange insurance as an author, independently of his cover with BMIF.
(ii) A questioning interactive web site. A barrister may have an interactive web site which asks questions of the person entering the site. A general advice is provided at the end of the session, depending on the answers given by the accessor. This is very likely to be case specific, and therefore in breach of the Code.
(iii) Bank internet service with legal advice. A bank offers a subscription internet service where subscribers have an account. Part of the material is legal information written by barristers who write a synopsis and a detailed guide. The synopsis is free, but when the detailed guide is downloaded the bank collects a fee, part of which is passed on to the Barrister author. If this is advice and not to a professional client, then it is in breach of the Code. There will also be a contractual liability to the Bank if it is sued by the consumer. In both cases claims may fall outside the scope of BMIF cover.
