Law Practice

Case: E-Mail Could Mean Fatal Conflict, Absent Appropriate Disclaimer

Not having an appropriate e-mail set-up could cost a law firm dearly, according to a recent ethics opinion. If the system is open to the public and doesn’t require users to agree to a disclaimer eliminating confidentiality before hitting the send button, a law firm could be forced to withdraw from a current representation.

That’s what the Massachusetts Bar Association Committe on Professional Ethics essentially says in an advisory opinion, answering a question about how to handle an e-mail from a prospective client who, it turns out, wants to sue a current client, reports Massachusetts Lawyers Weekly.

Even though the e-mail sent via a law firm Web site wasn’t solicited, because the firm could easily have had an appropriate disclaimer in place, and didn’t, it must keep the communication confidential. Unfortunately, if the communication is material to the case, that means the law firm is now conflicted out of continuing to represent its current client, the opinion explains.

Examples of information that might be material include comments about legal strategy, motive or possible weaknesses in the case, the opinion notes. “In that case, the obligation of the lawyer who received ABC’s e-mail to maintain the confidentiality of its contents would materially limit his ability to represent XYZ, with the result that both the lawyer and the [firm] would be disqualified.”

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