Posted Jan 01, 2011 08:19 am CST
After David Walsh lost his job as a cashier at a large warehouse store, he typed “employment lawyer” into an Internet search engine and generated a list of local firms.
The firm websites conveniently listed the names of their lawyers and provided contact information, including e-mail addresses. Walsh randomly e-mailed several of the firms saying that he was looking for a plaintiffs employment lawyer to represent him in a wrongful termination suit against the store, which he identified in the e-mail. He also attached a file with correspondence he exchanged with the store’s human resources department. It turns out that one of the lawyers to whom Walsh sent the e-mail represents the store as outside counsel. Now what?
This hypothetical scenario is likely to occur with great frequency now that websites have become a common means for lawyers to communicate with the public in efforts to generate new business. Indeed, lawyer websites have replaced business cards and Yellow Pages advertising for their “branding” potential. Embedding certain words on a law firm website as HTML text makes it attractive to Internet search engines, thus increasing webpage traffic that may result in more business.
Lawyers and potential clients appear to be going online at similar rates. As early as 2001, 77 percent of law firms already had an online presence, according to Greenfield/Belser Ltd., a brand design firm in Washington, D.C., that focuses on professional services marketing. In 2010, nearly 84 percent of lawyers said their firm had a website, according to the ABA’s Legal Technology Survey Report.
Meanwhile, a 2009 study by the Pew Research Center in Washington found that 74 percent of all Americans use the Internet, and of those, 81 percent go online to research products or services.
Given these statistics, lawyers with websites have good reason to be apprehensive about uninvited communications that could inadvertently lead to the formation of lawyer-client relationships, conflicts of interest and breaches of confidentiality. Under Rule 1.18 (Duties to Prospective Client) of the ABA Model Rules of Professional Conduct, for instance, “A lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation” except under certain circumstances involving former clients.
Rule 1.18 also generally prohibits a lawyer from representing a client “with interests materially adverse to those of a prospective client in the same or a substantially related matter” if the lawyer received information from the prospective client that could be significantly harmful to the affected client. (The Model Rules are the direct basis for lawyer ethics codes in every state except California.)
But what particular circumstances cause Rule 1.18 or related ethics provisions to kick in as a result of online communications between a lawyer and a prospective client?
The ABA Standing Committee on Ethics and Professional Responsibility explored that question in Formal Opinion 10-457 (Lawyer Websites) (PDF), issued Aug. 5, 2010. The opinion recognizes the growing use of websites by lawyers. “A lawyer website can provide to anyone with Internet access a wide array of information about the law, legal institutions and the value of legal services,” states the opinion. Websites also serve as an effective marketing tool for lawyers, the opinion notes.
But the opinion cautions that “the obvious benefit of this information can diminish or disappear if the website visitor misunderstands or is misled by website information and features.” For lawyers, online marketing can give rise to problems when website visitors interpret material posted as general information to apply to specific situations, or when visitors make unanticipated inquiries or unexpectedly provide confidential information. Websites that invite inquiries, such those with “contact us” or “click here for a free consultation” buttons, can be especially problematic.
Lawyers are “well-advised to consider that a website-generated inquiry may have come from a prospective client,” states the opinion, and they should pay special attention to including appropriate warnings that effectively limit, condition or disclaim any obligations to website visitors. “Such warnings or statements may be written so as to avoid a misunderstanding by the website visitor that (1) a client-lawyer relationship has been created, (2) the visitor’s information will be kept confidential, (3) legal advice has been given, or (4) the lawyer will be prevented from representing an adverse party.”
The key, concludes the ethics committee’s opinion, is that “limitations, conditions or disclaimers of lawyer obligations will be effective only if reasonably understandable, properly placed and not misleading. This requires a clear warning in a readable format whose meaning can be understood by a reasonable person.” And, the opinion notes, “The appropriate information should be conspicuously placed to assure that the reader is likely to see it before proceeding.”
A number of state bar opinions also have tackled the issue of online communications, and several have concluded that lawyer websites should contain “click-through” (also called “click-wrap”) or pop-up disclaimers that require a prospective client to assent to the terms of the disclaimer before being permitted to submit the information to the lawyer’s site.
This approach was taken in Virginia Legal Ethics Opinion 1842 (Sept. 30, 2008), which states that one way to avoid an inference that an attorney-client relationship has been established or that information submitted to a law firm’s website will be kept confidential is to include a disclaimer on the website warning against disclosure of confidential or sensitive information and also warning that the firm has no duty to maintain the confidentiality of any submitted information.
Florida Bar Opinion 07-3 (Jan. 16, 2009) concluded that a person seeking legal services who sends information unilaterally to a lawyer has no reasonable expectation of confidentiality regarding that information. Thus, the lawyer who receives that information has no conflict of interest if already representing or later asked to represent an adversary, and may use or disclose the information. Again, a careful lawyer will post a statement on the website stating that the lawyer does not intend to treat as confidential information sent to the lawyer via the website, and that such information could be used against the person by the lawyer in the future.
Other states agree. New York City Bar Association Ethics Opinion 2001-1 (March 1, 2001) states that a lawyer is not disqualified from representing an existing client when the lawyer receives an unsolicited e-mail from an adverse party, but that the lawyer may not use or disclose that information if the lawyer’s website has not adequately disclosed that the law firm will not treat such communications as confidential. According to San Diego County Bar Association Ethics Opinion 2006-1 (2006), a lawyer does not owe a duty of confidentiality to a person who sends unsolicited information to the lawyer and may use such information in representing an existing client. California Formal Ethics Opinion 2005-168 (2005) has gone so far as to conclude that a lawyer may invite people to provide information to the lawyer via e-mail or another form of electronic communication via the lawyer’s website with no duty of confidentiality attaching if the lawyer provides a clear disclaimer that he or she will not treat the information provided as confidential.
Effective disclaimers in lawyer websites are particularly important for online visitors who may be inexperienced in using legal services, states the ABA ethics opinion.
“It would be prudent to avoid any misunderstanding,” states the ethics committee, “by warning visitors that the legal information provided is general and should not be relied on as legal advice, and by explaining that legal advice cannot be given without full consideration of all relevant information relating to the visitor’s individual situation.”