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This article was originally published in the 2006 Symposium Issue of The Professional Lawyer.

We are frequently reminded that the Internet is the tool of the future.  When it comes to delivering legal services over the Internet, lawyers employ various means to screen clients and avoid conflicts that could lead to disqualification.  One commonly suggested means for avoiding the pesky conflict that can arise from receipt of confidential information from prospective clients is the use of disclaimers.  It is thought that an effective notice or advance agreement with viewers utilizing a lawyer’s web site that no client-lawyer relationship will arise and no information transmitted by the would-be client will be considered confidential will eliminate the risk of disqualification and avoid any responsibility to the person seeking employment.  This paper suggests that general disclaimers may not be enough to protect the interests of the public who are invited to seek Internet-based representation and that the more traditional intake process of clearing conflicts first before inviting consumers to reveal information about their legal matter affords better protection for both lawyers and the public.

Web sites have become more than a passive means for advertising and marketing legal services.  Technology affords consumers access to high speed and efficient legal services in a dynamic although often more limited way.  The Internet is increasingly being used to encourage viewers to submit legal questions for on-line consideration and possible retention.  An Internet-based law practice that answers legal questions and provides legal services is not prohibited so long as the protections afforded by professional conduct rules are satisfied. [1]

While the Internet may be the tool of the future, finding the right lawyer continues to be a challenge for most people.  Those in search of legal services will still need to consult privately with lawyers willing to consider the matter in making an informed decision whether they need a lawyer and if this is the right lawyer for their matter.  Model Rule 1.18(b) mirrors case law and ethics opinions in most jurisdictions that the duty of confidentiality extends to prospective clients seeking an attorney’s assistance with a view toward employing the attorney professionally, even if no employment results. [2]  In most jurisdictions, pre-retention communications by those seeking legal representation in good faith with a lawyer who has agreed to consider being retained are also protected by the attorney-client privilege. [3]  The rationale for applying the privilege to preliminary communications is equally compelling for consumers who chose to seek legal help through the Internet.  “[N]o person could ever safely consult an attorney for the first time with a view to his employment if the privilege depended on the chance of whether the attorney after hearing his statement of facts decided to accept the employment or decline it.” [4]  

There is a distinction between unilateral, unsolicited communications by viewers through an email link to a web site that advertises a lawyer’s general availability and a web site that encourages on-line consultations and invites legal questions.  It is generally agreed that simply maintaining an e-mail address is not enough to impose a duty of confidentiality with respect to unsolicited emails, particularly transmissions by would-be clients who are attempting to “foist” confidential information upon the unsuspecting attorney. [5]  In this context, attorneys are appropriately encouraged to use disclaimers to warn viewers against submitting unsolicited emails with confidential information where the attorney has not agreed to consider the relationship.  Maintaining a passive web site that advertises a lawyer’s general availability for employment with appropriate limitations on forming an attorney-client relationship and a disclaimer that unsolicited emails requesting representation will not be considered confidential would likewise not create a legitimate expectation of confidentiality on the part of the sender. [6]  Hence, the receipt of unsolicited communications by would-be clients generally will not disqualify a law firm receiving the information from representing a client adverse to the prospective client, even if the receiving law firm could not reveal the information or use it against the prospective client, since the firm would have had no real opportunity to avoid its receipt. [7] 

 A quite different situation arises if the web site invites the communication or otherwise creates an expectation in advance that the attorney will consider forming a professional relationship with the sender.  When this occurs, potential clients have a legitimate expectation that their communications will remain confidential. [8]  Where the consumer is invited to communicate electronically with the lawyer, the lawyer has an opportunity to control the content of the information the lawyer receives in considering whether to accept the engagement.  Lawyers have a duty to avoid conflicts of interests, particularly with existing clients.  It is incumbent on lawyers receiving solicited on-line communications to obtain basic information up front to clear conflicts before responding to the inquiry.  In offering Internet-based services in this manner, lawyers should consider apprising viewers of the need for this two step-intake process and caution that any information the viewer considers confidential should not be imparted until conflicts are cleared and the lawyer has communicated a willingness to proceed. 

A two-step process in this situation offers better protection for both the prospective client and the lawyer than the use of blanket disclaimers.  Lawyers are better off utilizing fill in forms, drop down menus and templates that control the information viewers are allowed to reveal until a preliminary determination is made that no conflict exists.  [9]  Identifying information such as the names of the parties, their addresses, the type of case and other persons and entities involved will usually be sufficient to clear most conflicts through a reliable data base and other intake methods, such as an email alert to lawyers in the firm.  If no conflict is found, the lawyer can obtain additional information during the initial period when the matter is under mutual consideration.  Conflict problems can still arise during subsequent on line consultations after the initial conflicts check, as in the case of in-person consultations.  However, a two-step process will reduce the likelihood of disqualification as well as attempts by savvy viewers to conflict out opposing counsel by sending emails filled with specific case information.  More importantly, it will help protect potential clients who are responding to the on-line invitations for legal advice.

Disclaimers, on the other hand, are not the most effective method of avoiding disqualification or protecting the rights of potential clients.  Many people turn to the Internet for legal help without knowing beforehand where to begin.  The Internet has the capability of allowing for initial disclosure of information people would not otherwise reveal if they knew the consequences.  To be effective, disclaimers must use “plain language” if a potential client’s waiver of confidentiality is to be knowing. [10] 

In California State Bar Formal Opinion  2005-168, a wife searching the Internet for a law firm that specializes in divorce, finds a law firm web site that describes the firm’s family law practice and contains a link entitled: “What are my rights?”  The link leads to an electronic form that asks for the inquirer’s contact information, for a statement of facts relating to the inquirer’s legal problem and for any questions the inquirer wishes to pose to the firm.  The inquirer fills out the form explaining that she is interested in seeking a divorce and provides support and employment information.  She states that she is looking for an attorney who will achieve her goals in obtaining a property settlement and sole custody of the child of the marriage.  She concludes with a question whether an extra-martial affair she had that she wants kept secret will have any effect on achieving her objectives.

Immediately below the text box are terms of use the inquirer is required to accept before submitting the information.  The terms include an acknowledgement that “by submitting this inquiry, I understand that I am not forming an attorney-client relationship. I also understand I am not forming a confidential relationship.”  Upon receiving the transmission, the law firm discovers that the inquirer’s spouse had already retained the firm to explore the possibility of obtaining a divorce.
The opinion concludes that the inquirer had a reasonable expectation of confidentiality in transmitting her information to the law firm, because the law firm invited the consultation for the purpose of considering whether to enter into an attorney-client relationship with the inquirer.  The law firm did not use sufficient “plain language” in its disclaimer to defeat her reasonable belief that she was consulting the firm for the purpose of possible employment.  As a result, the firm could not avoid assuming a duty of confidentiality with respect to the information received by requiring the inquirer’s acceptance of the terms of use.  Therefore, the firm would be disqualified from representing either party in the divorce.
The opinion suggests that had the law firm used clearer language in its agreement with the inquirer to the effect that “I understand and agree that the law firm will have no duty to keep confidential the information I am now transmitting to the firm,” the law firm could have “defeated” the inquirer’s reasonable expectation of confidentiality and avoided a duty to not reveal or use any of the information the firm had solicited.  However, one wonders whether this is a preferred solution.  It is one thing to have a disclaimer that warns consumers not to send unsolicited confidential information and another that requires potential clients to enter into a “click wrap” agreement that has the effect of waiving confidentiality as to information the lawyer has encouraged the consumer to send.  Use of such disclaimers in this situation would not promote the strong public policy of encouraging clients to seek legal advice, nor would it seem to promote the Internet as an alternative for traditional in-office consultations.  .Even if the disclaimer was crafted in sufficient plain language to be effective, it is not clear that the law firm would be able to reveal or use the wife’s information in representing the husband. [11]  

A better way to proceed that would avoid the confidentiality issue would be to require the inquirer to submit limited information that would allow the law firm to perform a conflicts check.  In the situation addressed in California State Bar Formal Opinion 2005-168, the firm would first want to ensure that it does not represent the other spouse.  The dialog box or drop down form could be limited to identifying the names of the parties, addresses, children, former spouses, relevant maiden names, and the subject area.  Most consumers will understand and appreciate an explanation on the web site that the reason for requiring limited information as the first step in considering the potential client’s matter is to protect the interests of the law firm’s existing clients. [12]

Additional problems can arise when the lawyer seeking on-line information from prospective clients ends up accepting the engagement.  Employing disclaimers that require prospective clients to agree that no confidentiality exists with respect to information the client is invited to submit at the outset may have the effect of vitiating the client’s claim of privilege and exposing the information to later discovery that could prejudice the client’s case.

In Barton v. U.S. District Court, [13] a drug company’s discovery request for opposing counsel’s Internet questionnaires soliciting extensive information from potential class members concerning the company’s antidepressant drug was denied on the grounds that the disclaimer at the end of the questionnaire was too ambiguous to constitute a waiver of the attorney-client privilege. [14]  The “yes box” disclaimer which each person responding to the questionnaire was required to check before sending the email included the statement: “I agree that the above does not constitute a request for legal advice and that I am not forming an attorney client relationship by submitting this information.”  In denying the drug company’s discovery request, the court found that the law firm’s ambiguity in failing to include an express waiver of confidentiality should not result in the loss of the clients’ privilege. 

No doubt lawyers can come up with better disclaimer language than that used in Barton and in California State Bar Formal Opinion 2005-168.  However, it remains to be seen whether Internet sites that encourage the transmission of confidential information can effectively avoid any responsibility to potential clients through the use of disclaimers. Comment [5] to Rule 1.18 provides that a lawyer may condition conversations with a prospective client on the person’s informed consent that any information disclosed during the consultation will not prohibit the lawyer from representing a different client in the matter.  The agreement may also expressly provide that the prospective client consents to the lawyer’s subsequent use of the information.  However, “informed consent” under Rule 1.0(e) denotes agreement after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct. 

A lawyer receiving “disqualifying information” from a prospective client (defined in rule 1.18(c) as information that “could be significantly harmful to that person in the matter”) may nevertheless represent a client with interests materially adverse to those of the prospective client in the same or a substantially related matter if (1) both the affected client and the prospective client have given informed consent, confirmed in writing, or (2) “the lawyer who receives the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the client;” and the lawyer was timely screened from any participation in the matter (and receives no fee there from) and the prospective client is given prompt written notice. [15]  Lawyers who solicit email communications from prospective clients containing “disqualifying information” with a notice that the information will not be treated as confidential, without first clearing conflicts, may find it difficult to satisfy the requirements of rule 1.18(d)(2).

Requiring potential clients seeking Internet-based legal services to waive confidentiality with respect to their initial communications as a means of avoiding disqualification may not always serve the public interest.  The objective should be to adapt technology in a way that maintains the same degree of professionalism and protection of the interests of prospective clients as in the more traditional law office setting.


Endnotes
 
[1]               North Carolina Formal Op. 2005-10 – A virtual law practice is permissible so long as cyberlawyers are able to spot conflicts, deliver competent representation, maintain adequate communication, avoid UPL and generally take the same precautions as competent lawyers do in a law office setting. 
 
[2]               ABA Model Rule 1.18(b) – “Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation, except as Rule 1.9 would permit with respect to information of a former client.” And see ABA Formal Op. 90-358; People v. Canfield, 12 Cal. 3d. 699 (1974); California State Bar Formal Op. 1984-84; Michigan Formal Op. RI-154(1995); Arizona Formal Op. 02-04; Los Angeles Bar Assn Formal Op. 506 (2001); Rest. 3d., Law Governing Lawyers § 15. 
 
[3]           Rest. 3d, supra., § 70, and Comment c; McCormick Evidence § 88 (5th ed. 1999);California Evidence Code § 951 – “. . . ‘client’ means a person who, directly or through an authorized representative, consults a lawyer for the purpose of retaining the lawyer or securing legal service or advice from him in his professional capacity, . . . .” 
 
[4]               People v. Gionis, 9 Cal 4th 1196, 1205 (1995) 
 
[5]           Arizona Formal Op. 02-04; California State Bar Formal Op. 2003-161; and see, Model Rule 1.18, Comment [2] – A person who communicates information unilaterally to a lawyer, without any reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer  relationship, is not a “potential client” under the rule.   
 
[6]               Arizona Formal Op. 02-04; and see, New York City Bar Formal Op. 2001-1. 
 
[7]               New York City Bar Formal Op. 2001-1. 
 
[8]               California State Bar Formal Op. 2005-168; and see Philadelphia Formal Op. 96-2 – attorney who was a member of a referral panel for employment discrimination cases received a detailed description of a potential case on behalf of employee A. Although the attorney declined the matter and had no contact with employee A, receipt of the case description imposed a duty of confidentiality since attorney had agreed to consider employment discrimination cases referred to him. As a result, attorney could not later represent another employee in a matter in which employee A was the complaining party. 
 
[9]           Rule 1.18, Comment [4] cautions that a lawyer considering whether to undertake a new matter should limit the initial interview to only such information as reasonably appears necessary for that purpose. 
 
[10]             See, e.g., California State Bar Formal Op. 2005-168; Virginia Formal Op. 1794 (2004). 
 
[11]          Compare, New York City Formal Op. 2001-1, which concludes that a prominent and clear web site disclaimer stating that nothing will be treated as confidential until the prospective client has spoken with an attorney who has completed a conflicts check would be sufficient to vitiate any attorney-client privilege claim with respect to unsolicited information transmitted by would-be clients in the face of such a warning. 
 
[12]             It is recognized that on occasion the fact that an inquirer is seeking advice or representation with respect to a particular matter, such as a divorce, can itself be confidential. 
 
[13]             410 F.3d 1104 (9th Cir. 2005). 
 
[14]             In Barton, the court did not certify the class and the law firm ended up going to trial initially with five plaintiffs, four of whom had returned questionnaires relating to their experience with the antidepressant drug.  The drug company sought the questionnaires in discovery as a means of impeaching the clients’ deposition testimony. 
 
[15]             Model Rule 1.18(d) and see rule 1.0(k) for requirements for screening procedures.

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