Sept. 7, 2011 – The Internet makes it easier for people to seek legal services through law firm websites. But what happens when people submit unsolicited information or respond to online advertisements or other requests for information?
Recently, the State Bar of Wisconsin’s Ethics Committee released Formal Ethics Opinion EF-11-03, which provides guidance to lawyers about unilateral, unsolicited communications and what lawyers can do to prevent an unwanted lawyer-client relationship that results in ethical duties.
“While nominally geared towards online communications, the issue is not limited to that form of communication,” said State Bar Ethics Counsel Time Pierce. Pierce says the opinion is also relevant in situations where an individual communicates by phone or postal mail.
“The lawyer must consider whether the individual has a reasonable expectation that the lawyer is willing to enter into a discussion about the formation of a lawyer-client relationship,” Pierce said. “This opinion provides the framework for that consideration.”
Rules of Professional Conduct
Under Supreme Court Rule (SCR) 20:1.18 of the Rules of Professional Conduct for Attorneys, lawyers have certain duties to prospective clients. A prospective client is “a person who discusses with a lawyer the possibility of forming a client-lawyer relationship.”
Once a client is prospective, the lawyer has a duty of confidentiality and cannot represent a client with interests materially adverse to the prospective client in the same or substantially related matter, if information obtained from the prospective client is “significantly harmful.”
This might come up, for instance, when an employment lawyer receives unsolicited information from an employee alleging discrimination. If the employment lawyer represents employers, not employees, would receipt of this information preclude representation of the employer?
Formal Ethics Opinion EF-10-03 (Dec. 17, 2010), helps attorneys avoid receiving “significantly harmful information” during consultations that could disqualify them, or their law firms, from representing other clients in the same or substantially similar matter.
But EF-11-03, a companion opinion to EF-10-03, largely deals with unilateral communications that a lawyer receives before the lawyer even agrees to consult with someone. The opinion warns that lawyers who invite communications, through links on websites, for example, must maintain clearly written disclaimers or they risk triggering an unwanted lawyer-client relationship that could restrict the ability to represent other parties.
Unilateral, unsolicited communications
If you are seeking representation, please read the following notice before sending an email to our firm:
Sending us an email will not make you a client of our firm. Until we have agreed to represent you, anything you send us will not be confidential or privileged. Before we can represent you, a lawyer will first take you through our conflict of interest procedure and see that you are put in touch with the lawyer best suited to handle your matter. If you proceed with an email, you confirm that you have read and understood this notice.
Source: EF-11-03, Appendix: Example Disclaimer Language
EF-11-03 explains that public dissemination of contact information does not, by itself, create a reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship. Further, 1.18 [comment 2] indicates that a person who communicates information unilaterally to a lawyer is not a prospective client.
This can become a troulesome issue for law firm websites that allow or invite viewers to easily transmit information to the firm, because this can create a “reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship.”
“It’s a dicey issue because it’s not really clear what you have to do to protect yourself,” Pierce said. “The Ethics Committee wanted to give Wisconsin lawyers practical guidance, and examples of specific disclaimer language that is sensible under the circumstances.”
EF-11-03 states, in line with other states’ ethics committees, that prospective client duties are not triggered by unilateral communications, as long as the lawyer has not done anything that would lead a reasonable person to believe he or she could share private information without first meeting with the lawyer to discuss the possibility of representation.1
But issues could arise when an individual is responding to an advertisement, such as a website, or other request for information.
“In that case, it’s no longer a unilateral communication,” Pierce said. “And that can invoke black letter ethical duties. It’s a question of whether or not a lawyer is inviting communication, or doing something to specifically reach out for a response.”
Response to advertising
Law firm websites often invite the public to contact the law firm or lawyer directly through links on the website. EF-11-03 explains that when a person responds to such invitations, the person’s contact is not necessarily unsolicited. EF-11-03 cautions that such invitations, if not carefully drafted with disclaimers, could trigger duties under SCR 1.18:
“To avoid creating ethical duties to the person, a lawyer who places advertisements or solicits email communications must take care that these advertisements or solicitations are not interpreted as the lawyer’s agreement that the lawyer client relationship is created solely by virtue of the person’s response and that the person’s response is confidential.”2
A blanket disclaimer that no attorney-client relationship is formed by responding to an advertisement or notice – which many law firms and lawyers maintain through “pop-up” agreements requiring readers to accept the terms before submitting – may not be enough to inform the untrained lay person. And it’s the layperson’s perspective that counts.
“This is the gray area,” Pierce noted. “What is reasonable is a question with no clear-cut answer, but the opinion provides a framework.”
EF-11-03 states that a disclaimer must have two separate and clear warnings. First, the disclaimer must make it clear that there is no lawyer-client relationship and second, that the email communications are not confidential. The language of the disclaimer should be short and easily understood by a lay person. EF-11-03 includes various disclaimer examples.
Although law firm websites gives the public better access to legal services, lawyers should make clear that unilateral communications from an individual are not confidential and do not create a lawyer-client relationship. For more information, contact org tpierce wisbar Tim Pierce at the ethics hotline, (608) 250-6168 or (800) 444-9404, ext. 6168, Monday through Friday, 9 a.m. to 5 p.m.
- EF-11-03 (Who is a Prospective Client; Lawyer Websites and Unilateral E-mail Communications), State Bar Ethics Committee – July 29, 2011.
- EF-10-03 (Conflicts arising from consultations with prospective clients; significantly harmful information), State Bar Ethics Committee – Dec. 17, 2010.
- Legal Ethics 2011, State Bar PINNACLE live webcast, Oct. 13, 2011, 8:30 am-12:05 pm (4.0 CLE Credits, $169).