Vol. 84, No. 2, February 2011
Informal Ethics Opinion EI-10-01: Law Firm Webinars
Does a webinar on a law firm’s website create a reasonable expectation of a lawyer-client relationship when the webinar is prefaced with a statement that no lawyer-client relationship exists?
A law firm asks the State Bar’s Standing Committee on Professional Ethics (the “Committee”) if making a webinar available to the public on the law firm’s website can create a lawyer-client relationship. The firm proposes to post a brief video that would provide legal information about different topics related to family law. The content would offer guidance on divorce procedure, required documents, and substantive legal issues. The firm proposes to preface access to the webinar with a disclaimer to the effect that viewing the webinar does not create a lawyer-client relationship between the viewer and the firm. Further, the disclaimer would add that the webinar contains legal information only and should not be construed as legal advice specific to any viewer’s situation. By clicking on a button that is labeled “Agree,” the viewer agrees that viewing the webinar is not a legal consultation and does not create a lawyer-client relationship.
The question of whether a lawyer-client relationship exists is not an “ethics” question, in that the Rules of Professional Conduct for Attorneys (the “Rules”) do not define the standards for the establishment of such a relationship – a lawyer must look to other sources of law to determine whether a lawyer-client relationship exists. Normally, the Committee offers no opinions on questions that fall outside the Rules, but given the importance of the issue to lawyers’ duties under the Rules, the Committee has opined in the past on formation of the lawyer-client relationship (see Ethics Opinion E-95-5). Therefore, the Committee will address the question again.
The lawyer-client relationship is one of agency based on a contract and the law of contracts governs whether such a relationship has been created. Glazer v. Brookhouse, 2008 U.S. Dist. LEXIS 7249 (E.D. Wis. Jan. 17, 2008). The contract may be express, but formality is not essential. Security Bank v. Klicker, 142 Wis. 2d 289, 418 N.W.2d 27 (Wis. Ct. App. 1987). The relationship may be implied from the words and actions of the parties. Ibid. Whether a lawyer-client relationship exists rests on the intent of the parties and presents a question of fact for the fact finder. Marten Transport Ltd. v. Hartford Specialty Co., 194 Wis. 2d 1, 533 N.W.2d 452 (1995).
Section 14 of the Restatement (Third) of the Law Governing Lawyers states that a lawyer-client relationship arises when:
(1) a person manifests to a lawyer the person’s intent that the lawyer provide legal services for the person; and either
(a) the lawyer manifests to the person consent to do so; or
(b) the lawyer fails to manifest lack of consent to do so, and the lawyer knows or reasonably should know that the person reasonably relies on the lawyer to provide the services; or
(2) a tribunal with the power to do so appoints the lawyer to provide the services.
Thus, the lawyer-client relationship is a contractual relationship that arises when a person seeks legal services from a lawyer and the lawyer agrees to provide those services or fails to decline to provide those services in the face of the person’s reasonable reliance. This test is fact-specific, and the final determination of whether a lawyer client relationship exists depends on the particulars of each matter. This opinion therefore is limited to a general discussion of the question and facts given and does not address the propriety of any specific webinar or disclaimer.
Considering the foregoing, it is the opinion of the Committee, that the viewing of an informational webinar on a law firm’s website does not, by itself, create a lawyer-client relationship. Offering and viewing the webinar is similar to a firm mailing a newsletter or an attorney writing a brochure for a legal self-help organization. Because the firm and the lawyer provide general information that is not specific to any client and because there is a disclaimer, coupled with an affirmative agreement from the viewer, the Committee believes it would be unreasonable for a viewer to believe that the webinar constitutes an agreement to provide legal services. Therefore the Committee does not believe that making a webinar available to the public would give rise to a lawyer-client relationship with the viewer.
The firm also asks if the answer to the question changes if the firm charges a fee to view the webinar. If the process of ordering and paying for the webinar makes it clear that the purchaser is entering into a contract only for the right to view the webinar and not a contract for legal advice or consultation, then the answer is that a fee makes no difference. Charging a fee to view the webinar would be no different than charging a fee for a book that a lawyer had written on a legal topic or charging a fee to the attendees of an educational seminar.
A lawyer’s duties to a person, however, can arise even in the absence of a formal lawyer-client relationship. SCR 20:1.18 describes an attorney’s duties to a prospective client. SCR 20:1.18(a) provides that a person who discusses with a lawyer the possibility of forming a lawyer-client relationship with respect to a matter is a prospective client. If a person becomes a prospective client, the lawyer owes certain duties to that person.
One goal of providing the webinar may be to impress the viewer such that she or he contacts the firm for representation. However, the Committee does not believe that the webinar, as described, constitutes a “discussion” that would implicate SCR 20:1.18(a). The webinar as described is purely informational and the described disclaimer advises the consumer that the webinar is not legal advice or consultation and the firm does not intend to create a lawyer-client (or prospective lawyer-client) relationship thereby. The “Agree” feature documents that the viewer understands that no lawyer-client (or prospective lawyer-client) relationship is intended or formed. Therefore the Committee does not believe that, under the circumstances described, viewers of the webinar are prospective clients within the meaning of SCR 20:1.18.
Finally, the Committee notes that a webinar offered for viewing on a law firm’s website is a communication about the lawyers’ services, and therefore must comply with the requirements of SCR 20:7.1.
Memorandum Ethics Opinion
M-10-02: Lawyer as Witness
If a lawyer representing a plaintiff speaks with a defense witness and in the course of the conversation, the defense witness reveals information about possible illegal conduct by the defendant with respect to the witness and other information which greatly undermines the defense, may the lawyer continue to represent the plaintiff in the matter? Assume, for purposes of the question, that there were no other persons privy to this conversation.
SCR 20:3.7 normally prohibits lawyers from acting at trial in matters in which the lawyer is likely to be a necessary witness. The purpose of the Rule is to protect the integrity of the fact finding process by prohibiting lawyers from both giving evidence and later commenting on and arguing that evidence before the tribunal. It is important to note that this prohibition applies only at trial, and a lawyer who may be prohibited from representing a client at trial by SCR 20:3.7 is not prohibited by that Rule from representing the client in pre-trial proceedings. SCR 20:3.7 also prohibits only the individual lawyer from representing the client at trial and the lawyer’s firm is not disqualified by the Rule. Therefore, if a lawyer is personally disqualified under SCR 20:3.7, another lawyer in the firm may still represent the client at trial.
The above paragraph assumes that the testimony the lawyer would provide would not be adverse to the client, the lawyer, or the lawyer’s firm. If such testimony would be adverse, then the lawyer has a conflict of interest under SCR 20:1.7, which is imputed to every other lawyer in the firm by SCR 20:1.10 and the firm must normally withdraw from the representation.
In the question posed above, the lawyer will likely be a necessary witness to provide the information regarding the conversation with the witness at trial in the event that the defense witness becomes unavailable or later denies the conversation. Therefore, the individual lawyer would be disqualified from representing the client at trial by SCR 20:3.7. Because the testimony by the lawyer would appear to be beneficial to the client, and not otherwise detrimental to the firm or the lawyer, the lawyer’s firm may represent the client at trial. The individual lawyer may continue to represent the client in pretrial proceedings.