Question

My firm is considering adding an online chat box to the firm’s website. Are there ethical concerns about doing this?

Answer

Many lawyers have added or are considering adding an online chat feature as part of their firm’s website. This type of online feature is designed to facilitate an immediate connection with a potential client and provide an opportunity for the lawyer to engage in a conversation with a potential client. It can be challenging to maintain and operate a chat feature, so some firms hire companies to collect information from a potential client and then relay the information to the attorney, which allows the attorney to follow up by making direct contact with the prospective client. In today’s age of immediate access and the need to fulfill a prospective client’s needs, using a chat box becomes a viable way to show the availability of the law firm and its lawyers. Several factors, however, must be considered.

First, if a person contacts the online chat feature on the website and gives background information about the need for lawyer services, it is likely that the person making contact will be considered a prospective client of the firm. See Wis. Formal Ethics Op. EF-11-03.

Under SCR 20:1.18, the lawyer and the law firm have various ethical duties to that prospective client, including the duty of confidentiality (SCR 20:1.6) and the duty to avoid a conflict of interest (SCR 20:1.7). The prospective-client rule (SCR 20:1.18) states that if the lawyer receives relevant information regarding the possible representation, the lawyer or the law firm might be prevented from representing any other party because of acquiring the information provided by the person contacting the online webchat feature. There are exceptions that might allow other lawyers in the law firm to represent the potential client’s opposing party in the legal matter, but that will depend on the specific circumstances involved.

The crucial question will be whether the lawyer or law firm “received information from the prospective client that could be significantly harmful to that person in the matter….” Formal Ethics Opinion EF-10-03, issued by the Committee on Professional Ethics, addressed what is meant by “significantly harmful” information.

Further, the lawyer or law firm must not use or reveal information learned during a consultation with a prospective client unless the disclosure of the information is allowed under SCR 20:1.9 (the former-client rule) as information that has become publicly known. Typically, a prospective client contacting an online chat feature will want to provide information about the potential legal matter; doing so will create a relationship between the lawyer and the prospective client that is governed by the supreme court rule.

The second issue to consider is the use of a service to ensure 24-hour coverage of the online chat feature, especially for times when lawyers are not available to respond to inquiries from clients. The information learned by the online chat service will be viewed as if it was learned by the lawyer at the time of an initial consultation. The supreme court rules make it very clear that a lawyer cannot avoid the obligation to comply with the rules by using a third party to take some action or be a representative of the lawyer. Any information gathered or provided by an online chat service will be considered action taken by the lawyer, and therefore the requirements of SCR 20:1.18 will apply even if the lawyer does not talk directly to the prospective client through the online webchat feature.

Many lawyers try to do everything possible to be available for prospective clients. This availability can be an important aspect of law firm and lawyer marketing, but there are potential consequences when offering an online chat feature.

The information learned by the online chat service will be viewed as if it was learned by the lawyer at the time of an initial consultation.

» Cite this article: 95 Wis. Law. 47-48 (December 2022).