The Too Much Information Age
For lawyers, one byproduct of the explosion in electronic communications has been an increase in unsolicited e-mails from people seeking legal services. While such messages occasionally result in new business, in many cases they just lead to ethics headaches for lawyers who find themselves in possession of information they would really rather not have.
Consider the personal injury lawyer in California who received an e-mail from a woman inquiring about possible representation after being involved in a multivehicle collision—who also mentioned that she had been drinking before it happened. Another California lawyer received an e-mail from a woman seeking a divorce lawyer—who revealed information about her secret extramarital affair. And in Arizona, a disgruntled employee sent copies of his letter complaining to the human resources department about alleged company abuses to 11 different outside lawyers in his efforts to obtain legal counsel. Adding to complications in each of those cases was the fact that the prospective client contacted lawyers who had already been consulted or retained by another party in the case.
In the personal injury matter (San Diego County Bar Association Legal Ethics Committee Opinion 2006-1), the lawyer already had consulted someone else involved in the collision. In the divorce case (State Bar of California Standing Committee on Professional Responsibility and Conduct Formal Opinion 2005-168), the woman’s husband already had retained the lawyer to whom she confessed her adultery. And in the employment matter (State Bar of Arizona Committee on the Rules of Professional Conduct Opinion 02-04), the disgruntled employee unwittingly sought representation by a lawyer who served as counsel to the employer.
What are the ethical obligations of a lawyer in those kinds of situations: Is there a duty to protect the confidentiality of the information received, even though the person who sent it isn’t actually a client? Is the lawyer so contacted precluded from representing the client who had already retained him or her? May the lawyer use the information for the benefit of the existing client?
The ABA Model Rules of Professional Conduct did not provide direct guidance on those questions until 2002, when the House of Delegates adopted Model Rule 1.18 at the recommendation of the Ethics 2000 Commission. Since then, Model Rule 1.18 has been adopted in 30 states and the District of Columbia, and it has been proposed for adoption in another eight states. (The ABA Model Rules serve as the basis for most state codes of professional conduct, which directly govern lawyers.)
Rule 1.18 hasn’t been in effect long enough for a body of opinions applying it to evolve. In the meantime, opinions issued by ethics committees at the state and local levels on the issue of unsolicited e-mails have relied on existing rules and decisions relating to formation of the client-lawyer relationship, confidentiality, conflicts and obligations to former clients. But the opinions and Rule 1.18 emphasize that the key to a lawyer’s obligation is whether a prospective client had a reasonable expectation of being represented by the lawyer.
DIFFERENT ROUTES, SAME DESTINATION
In the opinion arising out of the motor vehicle collision, the San Diego bar’s Legal Ethics Committee concluded that the lawyer was free to continue representing one of the people involved in the incident even after he was contacted by another party involved. Moreover, the lawyer could tell his client that the other party had acknowledged drinking before the collision.
The ethics panel considered it significant that the prospective client had obtained the lawyer’s e-mail address from a State Bar of California Web site rather than the lawyer’s own advertising. Merely listing contact information on a bar’s Web site cannot be construed as an invitation by the lawyer to attract clients. Thus, any expectation by the prospective client that the lawyer had agreed to a consultation was unreasonable.
The Arizona State Bar’s committee reached a similar conclusion in the case of the disgruntled employee who e-mailed to 11 different lawyers copies of his letter to the company’s human resources department. The committee determined that the prospective client demonstrated no reasonable expectation of confidentiality because he delivered the letter to a number of attorneys—who included, unknowingly, the employer’s counsel—without requesting that the information in the letter be kept confidential and without giving the attorneys a chance to reject a client-lawyer relationship. Significantly, both the Arizona and San Diego ethics panels noted that the outcome might have been different had the prospective clients obtained the lawyers’ e-mail addresses from a firm Web site that had no adequate disclaimers explaining that information would not be held in confidence.
The absence of such a disclaimer might suggest that the lawyer implicitly agreed to a client-lawyer relationship, said the Arizona panel. Similarly, the San Diego bar committee stated that an e-mail address appearing in a print advertisement or in a telephone directory might constitute an invitation to communicate confidential information.
The woman who inadvertently revealed her extramarital affair to her husband’s divorce lawyer used an electronic form on the firm’s Web site to submit information about the case, noted the California State Bar’s ethics committee. In order to proceed, she was required to consent electronically to certain terms, including an agreement that no “attorney-client relationship” or “confidential relationship” was formed.
But the committee decided that those disclaimers were inadequate, and that the lawyer could not represent the husband. The committee said they were “not in sufficiently plain terms to defeat the visitor’s reasonable belief that the lawyer is consulting confidentially with the visitor.”
The committee noted that a disclaimer stating, “I understand and agree that law firm will have no duty to keep confidential the information I am now transmitting to law firm,” would have eliminated any reasonable expectation of confidentiality, allowing the lawyer to represent the husband in spite of the wife’s admissions of adultery.
At least one ethics authority has held that lawyers cannot be said to invite or solicit information from prospective clients merely because they maintain a firm Web site that links to individual lawyers. Such firms are merely advertising their general availability, rather than making a specific solicitation, concluded the Committee on Professional and Judicial Ethics of the Association of the Bar of the City of New York (Formal Opinion 2001-1).
The opinion involved a lawyer who received an unsolicited e-mail from a prospective client with confidential information about a potential dispute with one of the firm’s existing clients. The committee concluded that the prospective client had a good-faith, though mistaken, belief that the information would be held in confidence. Although it allowed the lawyer to continue representing his current client against the prospective client, it forbade him to reveal the contents of the e-mail or to use it against the prospective client.
“Prospective clients who approach lawyers in good faith for the purpose of seeking legal advice should not suffer even if they labor under the misapprehension that information unilaterally sent will be kept confidential,” however “ill-conceived or even careless” that belief, the committee stated.
CLEARER SKIES AHEAD
The adoption of ABA Model Rule 1.18 by a growing list of states improves the chances for bringing greater clarity and uniformity to opinions on how lawyers should treat unsolicited information from prospective clients.
Rule 1.18 defines a “prospective” client as “a person who discusses with the lawyer the possibility of forming a client-lawyer relationship with respect to a matter.” The rule also states that a lawyer who has had “discussions” with a prospective client “shall not use or reveal information learned in the consultation.”
But that definition is not meant to be open-ended. “Not all persons who communicate information to a lawyer are entitled to protection under this rule,” the comment states. “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 ‘prospective client’ ” within the meaning of the rule.
Rule 1.18 prohibits representation adverse to the prospective client in the same or a substantially related matter—but only if the lawyer receives information from the prospective client that could be “significantly harmful” at some point later in the case.
Representation still may be possible, however, if both the prospective client and the affected client give their informed written consent. The firm of a lawyer who receives information still may represent the affected client if the lawyer took reasonable steps to avoid receiving more information from the prospective client than necessary to consider representation and if the lawyer is then appropriately screened from the case.
The provisions of ABA Model Rule 1.18, along with the comments that accompany them, offer helpful guidance on how to deal with unsolicited information from prospective clients even in jurisdictions that have not adopted the rule.
Kathryn A. Thompson is research counsel for the ABA Center for Professional Responsibility.
