The Place of Law in Cyberspace
First Monday

The Place of Law in Cyberspace by David Altheide



Abstract
The focus of this paper is on the nature and impact of law and legal advice on the Internet — the Practice of Law in Cyberspace (PLICS). The social activities associated with people seeking help and advice from attorneys has cast the attorneys as priests and experts, and the public as outsiders. Internet technology is changing this. Five search terms that emerged from an exploratory overview of more than a million Web sites (across three search engines) provide examples from which more systematic research may emerge: “Lawyers” offered the most sites, followed by “Legal Advice,” “Legal Forms,” and “Criminal Law.” “Divorce Law” registered just under 400,000 sites across the three search engines. Access, control, surveillance and advertising, and ethics remain key issues to investigate. Mass communication theory and research illuminates key questions about information technology, communication formats, and social control that will influence what lawyers focus on in Internet messages and advertisement.

Contents

Introduction
Theoretical Overview: The Relevance of Information Technology (IT)
Research Questions about the Practice of Law in Cyberspace
Conclusion

 


 

Introduction

 

“Traveling through hyper–space ain’t like dustin’ crops, boy.”
— Hans Solo (Star Wars).

 

There is a coffee shop, ‘Legal Grind’, in Santa Monica, California, where a $20 bill will buy a cup of coffee and a 10–minute consultation with attorney Jeffrey J. Hughes, whose service has been honored by the American Bar Association [1]. The main topics that people seek advice about include landlord/tenant problems, family law issues, employment law and personal injury. Hughes, who is opening his third ‘office’, says that the common element is ‘just people looking for value ... [clients] are just tickled there’s a place they can go that caters to them, not to the lawyers.’ Of course, Mr. Hughes has a Web site! [2]

This essay addresses some of the social changes underway in information technology that are influencing the social meanings and practices of law. I believe that changes in information technology, including wireless communications, the Internet, and a movement toward a more ‘visual social order’ will have profound social effects, including legal practices. A great sociologist, Peter Berger (Berger and Luckmann, 1967), stated that the most important thing we can know about someone is what he or she takes for granted. Nothing is more taken for granted than our communication environment, technologies, and practices. I have investigated many facets of the mass media and information technology for nearly 30 years, and have focused on communication as an agent of social change in everyday life assumptions, expectations, and routines, as well as altered institutional arrangements. My work suggests that some changes in information technology are rather obvious, sudden, and explicit, while most are subtler because they emerge through everyday social interaction. Part of my research project and approach over the years involves trying to understand the ‘intended’ and ‘unintended’ consequences of communication changes. The following comments will provide an overview of some conceptual hooks to grasp our communication environment. These will be followed by a brief discussion of key questions and issues that are relevant to understanding the future of the ‘practice of law in cyberspace’ (PLICS) and what it will mean for attorneys, educators, courts, and citizens.

 

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Theoretical Overview: The Relevance of Information Technology (IT)

I begin with several basic assumptions that I believe are widely supported by an extant literature and tradition (Burke, 1966; Comstock, 1980; DeFleur and Ball–Rokeach, 1982; Douglas, 1973; McQuail, 1994). First, communication is the most basic and the most important social act (Couch, 1987). Second, all human communication requires a medium — information technology — for the exchange of meaning. It may be voice, a body, a rock, a pen and paper, a book, a computer (Couch, 1984). Third, what we communicate is very closely tied to how we communicate, or which information technology is being used, and the format and ‘logic’ required for that technology. Keyboards — ranging from microwaves to computers — are examples (Altheide, 1985). Fourth, social power rests on information technology and communication, including control of accessibility, status, uses and consequences of technology in a given era (Couch, et al., 1996). Fifth, powerful interests in any social order tend to control and regulate the information technology and communication. This includes symbol systems as well as assumptions about ‘how,’ ‘what,’ and ‘when’ we communicate (Kellner, 1995). Sixth, regulation may occur through explicit plans as when a government under siege takes command of mass media outlets, or more subtly, as when the practitioners of existing institutional arrangements, who are imbued with authority (as legitimate power), implicitly guide future technological developments and their application through cultural priorities, patterns, and routines that are well established, such as the primacy of software development for economic rather than social purposes, and the development of the Internet for military planning (Ericson, et al., 1989; Ericson and Haggerty, 1997). Seven, changes in information technology are rapidly altering social routines, assumptions, and social institutions, including law, as people increasingly use and rely on ‘media logic,’ defined as a form of communication, and the process through which media transmit and communicate information. Elements of this form include the distinctive features of each medium, and the formats used by these media for the organization, the style in which it is presented, the focus or emphasis on particular characteristics of behavior, and the grammar of media communication (Altheide and Snow, 1979; Snow, 1983). I will attempt to discuss several of these points and suggest their relevance for recent changes in our ‘wired society,’ particularly legal practices on the Internet, as well as raise questions for future research. These efforts are informed by my recent work on expansive concept, ‘ecology of communication’ that will be explicated in its application to practices of law in cyberspace (PLICS).

The practice of law is based on both ‘content’ as well as communication practices that have been socially restrictive, oral and literal, spoken and written, and spatially limited, i.e., access to books, offices, etc. was required (Black, 1976). New information technologies are much different: they are more accessible, visual, and temporally ordered, rather than spatially. It is commonly understood that changes in social uses and meanings of cultural material lags behind changes in information technologies (Couch, 1984), and particularly how social and political contexts influence the meanings, uses, and consequences of new technology.

 

“... it is incumbent on social scientists to undertake sustained systematic studies of the intertwining of social relationships and information technologies. This can best be accomplished not by focusing our analytic power on neither social relationships or information technologies but rather on the social acts that create and perfect information technologies and the social acts that put in place, affirm, modify and destroy social relationships.” [3]

 

All communication practices involve information technology, and reflect those "biases" and limitations. Changes in communication media have altered social processes, relationships and activities as information technology expands to mediate more social situations. Mr. Hughes’ “coffee and counsel” offerings noted above also have a Web page with links to other attorneys, self–help law, etc. Coffee and communication have always gone together, but their linkage with “virtual justice” is new. While it is commonplace among social theorists that the message reflects the process by which it was constituted, there has been much less attention to how social activities are joined interactively in a communication environment, and particularly how the techniques and technology associated with certain communicative acts contribute to the action. The notion that new media and technology can influence communication (McLuhan, 1960; McLuhan, 1964; McLuhan and Fiore, 1967), can be contextualized by examining the impact of information technology in symbolic environments. Following the insight by a host of symbolic interactionists that communication occurs in a context (James, 1975; Mead and Morris, 1962; Douglas 1970; Blumer, 1969), I have examined the connections between some key elements of the ‘social matrix’ involved in the definition, construction and use of action-meaning systems in modern life.

Information technology influences social practices and social institutions. Culture includes all media that are used to coordinate, organize and display information. One attempt to synthesize these major views within a coherent framework is “an ecology of communication,” or the emerging relationship between information technology, communication formats, and social activities (Altheide, 1995). From this vantage point, the production and interpretation of messages is organized around technological, communication, economic and entertainment considerations. The line between consumers and producers becomes blurred as mass–mediated information joins the production and packaging of messages to the audience’s knowledge of products and issues. Perhaps some additional development of what is involved in an ecology of communication will help show the relevance for major changes underway in the practice of law in cyberspace (PLICS).

The specific guidelines for producing shared symbolic meanings are referred to as formats for the selection, organization, and presentation of meaning (Altheide, 1985). Akin to forums, formats integrate coordinating considerations with criteria for inclusion. Stated differently, formats are the rules and logic, which transform and mold information (content) into the recognizable shape and form of the specific medium. Every medium of communication and the information technologies used to shape and transmit information does this through certain patterns, shapes, looks and these we refer to as formats. Changes in the nature, impact and preference of formats implicitly are an instance of social change. Indeed, even recent ‘postmodern’ forays into dimensions of an ecology of knowing call our attention to ‘normal forms’ by offering what are essentially alternative formats for reading, interpreting and analysis (Snow, 1983).

Students of alternative forms of dispute resolution have noted the impact of something very similar to formats, forums: “The forum ... tends to develop its own distinctive views, interests and deeds ... Its institutional needs become one of the determinants of the process that transpires these.” [4] The way media appear, or their essential form, provides a kind of intelligence and interpretation to specific points of information, or content, which they present. Moreover, all media have a format, and can be distinguished by them (Altheide and Snow, 1979).

The way such technologies operate brings an added dimension to any activity that they are applied to and often reshape the activities. This is because information technology operates according to a logic involving operating principles and assumptions that distinguish the technology from other means of preserving and transmitting information.

Social life is a communicated experience, but the rules and logics of communication have changed drastically in recent decades with the maturation of magnetic recording devices, television broadcasting and information processing machines (e.g., computers), and the Internet. Contemporary social life increasingly is conducted and evaluated on the basis of organizational and technological criteria that have contributed to the development of new communication formats, which modify existing activities as well as help shape new activities. My aim is to develop further a perspective for understanding how information technology contributes to the nature, organization and consequences of legal practices and activities in cyberspace (Altheide and Snow, 1991; Couch, 1984; Meyrowitz, 1985). Previous work has emphasized the logic and principles of technologically informed communication that have become a more important part of our effective environment.

The relationship between information technology (IT) and format is not coincidental. Formats structure the purposes, so to speak, to which ITs apply. Moreover, IT formats provide the basic meaning pattern to an activity. For this reason there are always far more formats, or applications of IT than there are types of IT. The information technologies are utilized through various formats.

To summarize, then, the concept “ecology of communication” is grounded in the search for meaning, rather than causation or technological determinism. The combination of the key elements of communication provides a structure, logic and competence for social action. We treat the interaction of information technology with social activities as part of the “culture of information.” The problematic is the way in which information technology has been integrated into some activities, while providing opportunities for the development of entirely different activities and perspectives. The technology and activity are joined or synthesized through the everyday life experiences of human actors. The key idea is that an increasing number of activities occur in a context of an ecology of communication.

Many lessons learned from previous efforts to “assist” the public via the mass media, including newspapers and radio, are relevant to add to insights gained from research of how the justice system is informed by television can help inform investigations into PLICS. Regarding the former, the pervasiveness and impact of the mass media on various facets of everyday life (cf. Altheide and Snow, 1979; 1991) has directed researchers’ attention to examine whether the media can play a constructive role in resolving and sanctioning major civil and criminal disputes as well as complaints about minor injustices (Fisse and Braithwaite, 1983; Surette, 1998). The potential relevance of the mass media for justice issues is further heightened by Nader’s (Nader, 1980; Nader, et al., 1988) observation that complaints about goods and services have no place in the judicial system; yet, Black (Black, 1989) contends that a sociological theory of compensation must identify the social conditions and the process through which compensation is administered. However, the key idea is that changes in the communication environment can be critical for access, participation, and legitimacy.

The ecology of communication can be useful in delineating why one forum and option for legal assistance is selected rather than another. A very important feature of this concept is the communication environment or context in which actions will occur. The British government, for example, has taken an active role in promoting access to the Internet to obtain initial legal information (www.justask.org.uk). Communication concepts seldom have been employed theoretically to interpret differential participation in various forums for dispute processing. For example: (1) Less than one–third of American adults have been a party to civil litigation; (2) There is an inverse relationship between distance from court and likelihood to litigate (Buxbaum, 1971); and, (3) Several studies suggest that 25 percent or more of disgruntled consumers elect to “lump it” rather than seek redress to problems. Such findings suggest that potential disputants assess their options along the lines suggested by the ecology of communication.

While many of the most important questions about PLICS remain to be investigated systematically, we can learn from other topics. For example, previous research in sports, politics, religion, and foreign policy has demonstrated how media logic and communication formats alter institutional practices, assumptions, expectations, and everyday life behavior (Altheide and Snow, 1991; Altheide and Snow, 1979). For example, professional sports rules and play have been altered to accommodate television “needs” to entertain TV audiences that in turn expect a certain action, drama, and particularly conflict that is consistent with most other entertainment fare. The “entertainment format” that dominates our popular culture and essentially has transformed news and politics also influences audience perceptions about social order and justice.

 

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Research Questions about the Practice of Law in Cyberspace

The theoretical and empirical work on the nature and impact of expanding information technology into various social institutions can suggest relevant topics for future research, and provide some preliminary expectations. The following preliminary observations reflect an exploratory analysis of Internet materials as well as those provided through Lexis/Nexis searchers.

One indication of how “old ideas” are simply adapted to new technologies is the way that legal practitioners pursue and define their work (and world!) on the Internet. Here's one Web definition from an “association”:

 

“The Cyberlaw Association is committed to the cause of growth of Cyberlaw in cyberspace. The Cyberlaw Association is a movement geared towards creating the right kind of environment and conducive atmosphere for the balanced and vigorous growth of Cyberlaw, the law dedicated to Internet and the World Wide Web (WWW).” [5]

 

The practice of law in cyberspace (PLICS) is different from cyberlaw that has been defined as the study of those legal issues pertaining to the Internet and World Wide Web. According to one Web site:

 

“Cyberlaw is defined as the law arising from the growth and proliferation of computer–assisted telecommunications, electronic mail, information and data exchange systems. It derives, in part, from existing laws of contracts, privacy, slander, intellectual property, criminal procedure, as well as legislation and treaties, including the proposed North American Free Trade Agreement (‘NAFTA’), the Electronic Communications Privacy Act (‘ECPA’) and similar State and local statutes.” [6]
“An exploratory survey of numerous Web sites suggests an important difference with medicine. Searching for “cyberlaw” produces thousands of hits (nearly 35,000 on one search engine!), but there is scant evidence of locations dedicated to promoting or investigating the practice of law on the Internet. By contrast, “cybermedicine” listed just over 1,500 in one search engine, with several clearly oriented to using the Internet to promote medicine. For example, Harvard University: “The Institute of Cybermedicine is a nonprofit organization affiliated with the Department of Psychiatry at Harvard Medical School ... We seek to develop, evaluate, and disseminate innovative applications of information technology to promote health, prevent illness, and treat disease.” [7]

 

An exploratory overview of five search terms in three major search engines provides illustrative examples from which more systematic research may emerge; see Table 1. The following terms were used to search for Web sites on three servers, Google, Yahoo!, and AltaVista: legal forms, legal advice, lawyers, divorce law, criminal law. Preliminary review of several dozen sites suggested a general coding scheme: a) similarities in the emphasis of content and links, e.g., forms, advice, advertising legal research; b) whether the emphasis was for attorneys/civilians; and, c) whether a disclaimer was used. In addition, more specific observations (“Other Notes”) were added.

More than a million Web sites were identified, and a large number showed up in several sites. “Lawyers” offered the most sites, followed by “Legal Advice,” “Legal Forms,” and “Criminal Law.” “Divorce Law” registered just under 400,000 sites across the three search engines.

 

Table 1: An Overview of Web Site Characteristics of Five Search Terms
Characteristics Legal Forms Legal Advice Lawyers Divorce Law Criminal Law
Similarities Forms (free or premium), advice, attorney finders, legal research. Free advice, lawyer finder, feedback, bookstore (or manuals). Organizations or publications based at lawyers, membership options, current events and issues. Advice, links, state–by–state resources, lawyer finder, forms, bookstore, glossary of terms. Links to relevant information, article research, article archives, links to journals and events, court decisions, associations.
Emphasis (attorneys or civilians) Civilians Civilians Attorneys Civilians Both, but mostly civilian
Other Notes Some sites offer a broad range of forms, others are related only to forms in one specific area. Some sites offer advice on a wide range of legal issues, others are more specific. Many sites are civilian based, but there was a strong focus on practicing attorneys. These are similar to those under legal advice, only more specific. These seemed to be less focused on providing advice as much as criminal law/justice links.
Google (approximate) 1,410,000 1,620,000 1,890,000 397,000 1,330,000
Yahoo! 106 144 775 393 885
AltaVista 376,149 169,641 2,077,910 359,896 759,908

 

There were similarities across the “search terms” and strong common themes within each term. Legal Forms focused more on forms, advice, and attorney advertisements, while Legal Advice included “free advice” as well numerous advertisements for bookstores and manuals. Lawyers stressed individual attorneys, as well as membership information, events, issues, and appeals for lawyers to use other Web sites in their work. Divorce Law and Criminal Law also included forms, advice, and advertisements, with Criminal Law emphasizing more links to “relevant research” such as archives, recent court decisions, and professional associations.

Civilians were the major “target audience” for all the search terms except for Lawyers, which emphasized postings more relevant to attorneys. Lawyer “webmasters” were also less likely to post disclaimers about the legal usefulness and validity of the information, particularly forms.

Most sites offered forms and advice aimed at civilians, although the Lawyers sites were less likely to do so. One difference that may warrant closer examination is the difference in Divorce Law and Criminal Law. The latter was less likely to provide advice, but did provide numerous links to law and justice topics. For example, the Web page, FindLaw: Legal Subjects: Criminal Law (http://www.findlaw.com/01topics/09criminal/) contained the following links at the time of the research in 2001:

A preliminary overview of these Web sites suggest that the practice of law in cyberspace (PLICS) is mostly oriented to providing forms to fit the “legal format ” of “filling in ” information, providing very general advice, advertising services and products, directing cyber–audiences to still more information, and in many cases cautioning the user against relying too heavily and definitively on where their surfing has taken them. Rather, the impetus is to look further, go deeper, and continue the search for what is sought, but be careful! Not surprisingly, there was little material concerned with the legal, ethical, moral, and social impacts of legal practices in cyberspace. These topics are part of a more general series of issues involving information technology, social practices, and communication. Many practitioners of law, and perhaps to a lesser extent in medicine (see above), are not overly concerned with questions about how legal and medical practice will be fundamentally different when mediated via the Internet rather than person-to-person communication. Notwithstanding the widespread use of massive information bases by both practitioners in previous eras (e.g., Physician’s Desk Reference), it is only now becoming apparent to more citizens that they can also retrieve information, and do it rather easily via the Web. However, there are indications that more attorneys are aware that the practice of law is changing and that this could have other consequences.

 

“The practice of law is changing, and it’s changing in a number of ways. Consumers and small businesses now have the ability to empower themselves and take control,” said Neal J.B. Simon, the chief executive of USLaw.com, which touts itself as the only dot–com offering 24–hour, seven–days–a–week access to a lawyer, who might be sitting anywhere in the country. “The Internet changed the way people live their lives. The same thing is now true in the legal world.” [8]

 

The key question of access depends on information about Web resources and their relevance for common legal issues, as well as the availability of computers, and basic knowledge about “logging on,” etc. Preliminary results of Lexis/Nexis searches using the keywords “legal advice” and “online” suggests that newspapers are beginning to cover the Internet legal issues more carefully. Specifically, during the last two years, sixty articles have been published on “online” legal assistance, with a half dozen of these quite topical, including raising issues about adequacy and ethics! Many of the articles raised questions about the impact of the Internet trend on traditional legal firms and practices, including attorney–client privilege.

The mass media, particularly newspapers and television, could play a larger role in informing citizens of appropriate or “better than average” legal Web sites, such as the following provided by USA Today [9]:

  • www.findlaw.com. Perhaps the biggest Internet legal site, it has links to commercial and institutional sites, including bar associations for every state.
  • www.lawguru.com. It has links to statutes, the Constitution and other legal sites for every state and territory, along with a password–protected search engine.
  • www.freeadvice.com. It has user–friendly explanations of basic legal issues, with “I want a lawyer” under every heading.
  • www.nolo.com. Nolo Press touts its self–help law books but also provides some basic information.
  • www.lectlaw.com. The ’Lectric Law Library may look unusual, but it has a dedicated following among lawyers.
  • www.abanet.org. The American Bar Association’s site has links to local bars and a lawyer directory. The ABA also is planning a links page to other legal sites.

Online resources will have an impact on the future practice of law by attorneys, courts, and the perception, use and meanings of law for the public. But this will require credible news sources to brief reporters about public interest and credibility on dot coms.

The credentialing process and practice of law limits access to information through exclusive legal discourse and codes, membership and participation. The social activities associated with people seeking help and advice from attorneys has cast the attorneys as priests and experts, and the public as outsiders. Internet technology is changing this. More access to publics that are now excluded, for all practical purposes, could open up.

 

“We should recognize this as an opportunity,” says New York legal ethics professor Stephen Gillers. “We may be able to create a market where clients who couldn’t afford a lawyer get the advice they need at an affordable price.” [10]

 

Clients use online resources to get background information, but so do attorneys, who may consult certain Web sites almost as frequently as they scan Lexis. Several occupations relevant to providing Internet legal services are emerging. Firms are “contracting” with companies to provide assistance to online queries from actual or potential customers. It is not clear at this point what the status or compensation rationale will be used for those attorneys who do this work.

A “new” occupation called a “facilitator” has been added in some places to assist those who are using the Internet, but mainly to avoid having people who are inexperienced and lacking contextual information from clogging the courts. According to one report about Colorado:

 

“Facilitators don’t give legal advice, but they do give procedural assistance on such matters as what forms have to be filled out, when they are needed and how to take the next step.

Sherry Patten, spokeswoman for the Judicial Department, tells of cases in which parties planning to divorce file their initial papers and come back 90 days later figuring their divorce is final — sometimes with a proposed new spouse along — and are dismayed to learn there are other things they were supposed to do, but hadn’t. Multiply that kind of confusion by tens of thousands of cases. In 1999, nearly 18,000 of 32,000 domestic–relations cases were pro se, and 12,500 of almost 39,000 civil, non–domestic cases.” [11]

 

There will be effects on the legal system as online information becomes available to citizens seeking assistance, although these will depend on: access, content–advertising or actual information; formats and “learning” and “solution” based, or just “defining the problem”; the status of this help and information vis–à–vis the courts and actual settlements; the status accorded to those who do this seeking.

 

“Programs can provide our forms, but no form perfectly fits a client’s need or the exact agreement between the parties, and it could end up hurting the computer user,” said Mark D. Sanor, an associate with Hahn, Loeser & Parks, which has vigorously used the Internet to help clients in Russia. “When there’s a lot of money at stake, particularly where my family is involved, I wouldn’t rely on a form that may be outdated or may not apply to Ohio law.” [12]

 

A related issue is surveillance and advertising. Will any “search” be recorded and used for advertising, or for future evidence of what a person may have known, etc.? It is troubling when, for example, criminal investigations of individuals include the right to search their Internet history and postings. The profusion of legal information is raising ethical concerns. Since the Internet operates temporally rather than spatially, anyone can request advice across state lines, and even co-disputants in a case. What kind of information will have to be collected to avoid certain “conflicts,” and when does the attorney–client privilege come into effect, if ever, on the Internet?

 

“For example, how can a lawyer giving online help one day to a spouse involved in a divorce guard against unwittingly giving information to the other spouse the next day? Also, with strict regulatory laws mandating that lawyers give advice only in states in which they are licensed, what happens if a lawyer licensed in Pennsylvania ends up giving state–law advice to someone in Iowa?” [13]

 

A big question involves the nature of access and making things really “user friendly,” but that depends on the infrastructure of the legal industry. How will attorneys deal with clients who feel that they already have a good understanding of an issue because they have spent ‘time’ online? Relatedly, what happens to the power and significance of these information providers vis–à–vis the law, learning the law, and billing patterns? Some answers are emerging, but there remains ambiguity: what’s the payoff if the main impetus for online help essentially is advertising or marketing?

 

“The dot.com path is strewn with ethical difficulties and conflict–of–interest minefields. And lots of lawyers are wary of getting into bidding wars for work on behalf of clients they’ve never met.

‘I don’t think that going on the Internet and bidding for work is a service either to clients or to the profession,’ said Michael Saunders, managing partner of Spencer Fane Britt & Browne. ‘It’s never hard to get cheap legal advice. The problem is getting good, accurate and reliable legal advice. And this doesn’t seem to me a reliable way of doing that.’

The basic idea seems simple enough: Would–be clients pose their legal problems or needs online and attorneys competitively bid for the work.” [14]

 

One law professor, Catherine Lanctot, of Villanova University, expressed it this way: “My concern is with sites that purport to answer people’s legal questions either for free or for a fee, but at the same time they disclaim any responsibility for the advice,” she said. “To me, that is the worst of both worlds.” [15]

In another discussion she noted that many consumers do not understand the difference between generic information and specific advice:

 

“It’s inevitable that there is going to be a problem with some advice that’s been given, and someone is going to litigate this,” she says. “The next big wave in legal dotcoms will be www.sue–your–lawyer.com.” [16]

 

The forms and requirements in everyday legal practices may have to change to accommodate what is feasible in online usage. Perhaps only certain kinds of cases can be handled with forms, because so many other details and contingencies enter the picture with other law.

Will search procedures and methodologies now associated with online information bases, e.g., Lexis/Nexis, have any liability if the information is incomplete or incorrect? Will this activity be encouraged or punished? This remains unclear, although attorneys are beginning to discuss it.

 

“My reluctance to endorse this is the same reluctance I’d have in choosing a doctor over the Internet,” he said. “How do I know what I’m getting?”

“This whole thing of trying to reduce the professional relationship that attorneys have (with clients) to some sort of price thing — that bothers me.”

Jack Kilroy, a partner with Shughart Thomson & Kilroy, said he worried about “the potential of these sorts of things to create relationships that are broader in some people’s minds than the lawyer sees them. I’d be concerned about the potential liability that could result from that.” [17]

 

How will online services be publicized, especially the benefits?

The problem becomes more complex when disclaimers are offered in the appeal to legal customers! Consider one example [18]:

 

“Free Advice ... is the leading legal site for consumers and small businesses. It provides general legal information to help people understand their legal rights in 125+ legal topics, but is not a substitute for personal legal advice from an attorney. You are welcome to view FreeAdvice® for your own personal, non–commercial purposes, AS IS, subject to our disclaimer and conditions of use. FreeAdvice.com, AttorneyPages®, and ExpertPages® are units of Advice Company. Read our Privacy Policy. © 1996–2001 — All Rights Reserved. FreeAdvice® is a registered trademark.

General Legal Questions Not Covered? You may ask a question on the FreeAdvice Q&A Law Forums. Comments? Please see our Contact Us page.”

 

In other words, “buyer beware.”

The British government promotes certain Web sites for legal assistance. But it is also in Britain where some problems about liability have appeared.

 

“It was only a matter of time. The first dispute has broken out over the quality of online legal advice. A lawyer has alleged that a pay–per–view service is generating incorrect answers on the client’s legal and financial liabilities. The website in question belongs to a small London law firm — unnamed, as the dispute has now gone to an independent expert for resolution.

Guidelines being drawn up by a Law Society working party on online services are expected to remind solicitors they cannot avoid an over–riding duty of care to clients simply by going online. The regulator is also expected to recommend wording for a liability disclaimer for website information.” [19]

 

These instances raise important questions: How should we be informed about legitimacy, liability, and use? Must we depend on trial and error, occasional news reports from which we must generalize, or word of mouth, as we have done in the past? Should public education curricula begin to incorporate these sites, and in particular, provide the analytic tools to evaluate their quality? Will attorneys and Web site designers be willing to consult with teachers and other professionals who know “how we learn,” but seldom are asked? Stated differently, how will we avoid the common problem that the technology and specific communication format seems to “take over” and “drive” applications, and eventually, content as well?

 

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Conclusion

The Internet could become a tool for justice by making law more accessible to millions of citizens. However, this will not occur without changes in the practice of law in cyberspace. An ecology of communication perspective that clarifies how communication modes and formats influence social activities can help illuminate key issues involving the social organization of Internet use and what this may mean for PLICS. Clearly, more research is needed on the actual practices of attorneys who set up Web pages, what the services are, and the problems and difficulties they experience. We must also examine the vantage points of other attorneys who use these materials, as well as the public who seek advice and solutions.

Part of the challenge arises because of a potentially new use of the Internet: legal practice by non–attorneys. Full technical access is required, but this entails more than having access to a computer and finding some information. Access also entails workable guidelines, formats, and generally acceptable practices that will be legitimately accepted. This will require providing guidelines about context, substance, and recommendations that can be found, trusted, and acted upon. The Internet’s brief history has been organized around providing research and information, rather than practical services. More is involved in many legal matters than simply “filing on line,” as with product registration or even completing IRS forms. This shift from research to practice, from information to legal action, poses some tension in the future practice of law in cyberspace. Let us explore these issues so that the Internet can help citizens, and become — to quote the owner of “Legal Grind” — “a place they can go that caters to them, not to the lawyers.” End of article

 

About the author

David Altheide is the Regents’ Professor in the School of Justice Studies at Arizona State University in Tempe, Arizona.
E–mail: David [dot] Altheide [at] asu [dot] edu

 

Acknowledgments

This essay originally was presented at the Symposium, “Law in a Wired Society: The Information Revolution and the Evolution of the Law,” at the University of Dayton, in Dayton, Ohio, 22–23 March 2001.

 

Notes

1. USA Weekend, 16–18 February 2001, p. 12.

2. Legal Grind, http://www.legalgrind.com/.

3. Couch, 1995, p. 241.

4. Galanter, 1988, p. 158.

5. http://www.cyberlawassociation.com/association.htm.

6. http://www.oss.net/Proceedings/ossaaa/aaa2/aaa2ai.htm.

7. http://www.cybermedicine.org/.

8. Milwaukee Journal Sentinel, MJSTECH.COM, p. 01 M.

9. USA Today, 18 October 1999, p. 8B.

10. Christian Science Monitor, 13 November 2000, Features, p. 14.

11. Denver Rocky Mountain News, 4 December 2000, p. 36 A.

12. Plain Dealer, 1 January 1996, p. 3D.

13. Houston Chronicle, 14 July 2000, p. 1.

14. Kansas City Star, 6 February 2001, p. D1.

15. New York Times, 21 February 2001, Section G.

16. Christian Science Monitor, 13 November 2000, Features, p. 14.

17. Kansas City Star, 6 February 2001, p. D1.

18. http://www.freeadvice.com/.

19. Financial Times, 2 October 2000, p. 7.

 

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Editorial history

Paper received 7 May 2002; accepted 10 May 2002.


Copyright ©2002, First Monday.

The Place of Law in Cyberspace
by David Altheide
First Monday, Volume. 7, Number 6 - 3 June 2002
http://firstmonday.org/ojs/index.php/fm/article/view/963/884





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