How to Design Your Firm Website to Avoid Being
Disqualified by Incoming E-mail
By Professor David Hricik
Not too long ago, a person who wanted to hire a lawyer had to call him on the phone or stop by to see him. In that initial interview, the lawyer had to be certain to make sure that undertaking the representation would not create a conflict of interest with an existing or former client.1 To avoid disqualification, the lawyer in the initial interview had to &emdash; and still must &emdash; control disclosure of information by the prospective client so that only information from the prospective client necessary to check conflicts is obtained. This is because many states hold that a person who in a good faith effort to hire a lawyer discloses confidential information to one lawyer in a firm can disqualify that entire firm to the same extent as if an attorney-client relationship had been consummated.2
E-mail makes it easier for conflicts to arise because it changes the nature of communication. A lawyer who is talking to a prospective client can control the disclosure: before hearing information that might disqualify him from continuing to represent a client, for example, the lawyer can ask the prospective client who the adverse party will be, inquire as to the general nature of the matter, and perform a conflicts check. In the digital age, there is less control over receipt of confidences, and greater opportunity for them to be received by firms. A web page listing lawyer e-mail addresses allows putative clients to send an e-mail to a lawyer that discloses important confidential information that could lead to imputed disqualification of the firm. For example, a person could read a law firm web site, conclude that the firm would be an excellent choice to represent her, and then send the firm an e-mail discussing the potential strengths and weaknesses of the case and requesting a meeting.
If an entire law firm can be disqualified by imputation because one of its lawyers received information from a prospective client during a face-to-face meeting or phone call, can it likewise be disqualified to the same extent if it reviews the same information sent by e-mail from a client seeking in good faith to hire the firm?3 This scenario actually occurred in California: a woman seeking to hire a divorce lawyer filled out an on-line questionnaire with some confidential information about her case and submitted it to a firm which already happened to be representing her husband in that matter.4 If receipt of that questionnaire is no different than receipt of "too much" information during an initial interview, then an entire firm can be disqualified by imputation.5
Law firms recognize this possibility and so include different kinds of "terms of use" on their web sites. Many sites state that any information sent by e-mail before the firm agrees to represent the transmitting party will not be held to be confidential by the firm. Others say that no attorney-client relationship will be formed by submitting the information. Some include both "warnings." Read literally, together they would preclude a person who sent an e-mail to a firm in good faith in an effort to hire the firm from relying on the e-mail to disqualify the firm.
This article describes where these disclaimers should be and what they should say.
Where it Should Be.
Contracts require assent.6 Courts in addressing web-contracts are generally holding that terms which are merely somewhere on a website are not part of a contract formed by a website user. Instead, only terms which are affirmatively "clicked" and agreed to are part of the agreement. The courts recognize that where the user affirmatively "clicks" agreement to the term &emdash; so-called "click wrap" agreement &emdash; the term could be enforced, but generally reject attempt to create "browser wrap" agreements &emdash; binding users of a site merely because they opened it in their browser.7
Thus, having a "legal" or "terms of use" link on a law firm homepage which links to a page that contains the term of use regarding the confidentiality of e-mail sent by prospective clients is likely not an effective process to create an enforceable agreement with any prospective client. "Click wraps" are the only certain way to ensure that a court will hold that the prospective client manifested assent to the term. Thus, law firm websites should be coded so that prospective clients must affirmatively assent to the term before transmitting e-mail.
What it Should Say.
Disclaimers which state that submitted information will not be held in confidence are unhelpful because they go too far. While no doubt a prospective client who agrees to such terms could not disqualify the recipient law firm due to its receipt of that information, the term destroys the ability of the submitting party to claim privilege. Suppose the firm decides after receiving an unsolicited disclosure of key information to represent the sender as a client. The client very likely could not claim privilege because when the client transmitted the information, it knew the information would not be held in confidence.8 Indeed, the existence of these clauses may preclude firms from agreeing to represent the client, since the firm has arguably caused the client to lose privilege. These "no confidentiality" provisions go too far.
On the other hand, a "we do not represent you" clause does not go far enough. In a recent case, the Ninth Circuit held that a plaintiff could still claim privilege over information it submitted through a law firm site even though when it did so it acknowledged it was not creating an attorney-client relationship.9 It held the information could still be claimed as privileged, since the client had never explicitly agreed the information would not be held confidential. Likewise, a California bar opinion concluded that only if the prospective client had expressly agreed that information would not be held in confidence could a firm avoid an obligation of confidentiality.10 The bar association concluded that even though the client had clicked an agreement that "no confidential relationship would be formed," it was insufficient to constitute an acknowledgement that the firm would not keep the prospective client's information confidential. The opinion concluded that it would be sufficient only if the disclaimer had stated: "I understand and agree that Law Firm will have no duty to keep confidential the information I am now transmitting to Law Firm."11 For those lawyers in Massachusetts, its bar association addressed this issue just as this article was going to press.12
A "no attorney-client relationship" disclaimer is not enough. A "no confidentiality" approach goes too far.
The following examples balance in various ways the legitimate but competing needs of the firm, its clients, as well as the interests of prospective clients.
By clicking "accept" you agree that our review of the information contained in e-mail and any attachments will not preclude any lawyer in our firm from representing a party in any matter where that information is relevant, even if you submitted the information in a good faith effort to retain us, and, further, even if that information is highly confidential and could be used against you, unless that lawyer has actual knowledge of the content of the e-mail. We will otherwise maintain the confidentiality of your information.
That example seeks to eliminate firm-wide disqualification. While doing so, it could still result in the disqualification of an individual lawyer from a matter. Another approach:
By clicking "accept" you agree that we may review any information you transmit to us. You recognize that our review of your information, even if you submitted it in a good faith effort to retain us, and, further, even if it is highly confidential, does not preclude us from representing another client directly adverse to you, even in a matter where that information could and will be used against you.13
1 See, e.g., Bridge Prods., Inc. v. Quantum Chem. Corp., 1990 WL 70857 (N.D. Ill. 1990) (firm disqualified after a one-hour meeting with prospective client).
2 See, e.g., Gilmore v. Goedecke, 954 F. Supp. 187 (E.D. Mo. 1996) (disqualifying an entire law firm from representing its client of 50 years because one lawyer had learned information from opposing party when, as putative client, it disclosed information during a brief phone call). Courts had so widely recognized this duty that a form of it is expressly codified in the 2003 version of the American Bar Association Model Rules of Professional Conduct. Model Rule 1.18 generally prohibits firms from being adverse to such putative clients in matters where the information that had been disclosed to the firm could be used to significantly harm the then-prospective client:
(a) A person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.
(b) Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation, except as Rule 1.9 would permit with respect to information of a former client.
(c) A lawyer subject to paragraph (b) shall not represent 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 that person in the matter, except as provided in paragraph (d).
(d) When the lawyer has received disqualifying information as defined in paragraph (c), representation is permissible if:
(1) both the affected client and the prospective client have given informed consent, confirmed in writing, or:
(2) the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; and
(i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and
(ii) written notice is promptly given to the prospective client.
3 As one commentator posited:
Suppose an online visitor submits an inquiry to an attorney along with the requisite information, and, before responding, the attorney determines that a partner or other member of the firm already represents the opposing party. The attorney is now in receipt of information that could create an impermissible conflict such that the online visitor making the inquiry can attempt to force a withdrawal of representation of opposing party.
Thomas E. Lynch, Ethical Problems with Legal Computer Advertising and Affiliations, 34-DEC Md. B.J. 11, 12 (Nov/Dec. 2001).
4 St. B. of Cal. Standing Comm. on Prof. Resp. & Conduct Formal Op. Interim No. 03-0001.
5 Under the Model Rules, if one lawyer in a firm is disqualified from being adverse to a former client due to possession of confidential information, generally all lawyers in that firm are "imputed" with that conflict. See Model Rule 1.10(a).
6 "The fundamental idea of a contract is that it requires the assent of two minds." Dexter v. Hall, 82 U.S. 9, 20 (1872).
7 See generally, Jennifer Femminella, Online Terms and Conditions Agreements: Bound by the Web, 17 St. John's Legal Comment 87 (2003).
8 See generally In re Eddy, 304 B.R. 591, 596 (Bankr. D. Mass. 2004).
9 Barton, supra.
10 St. B. Cal. Standing Comm. as Prof. Resp. & Conduct Formal Op. Interim No. 03-0001.
11 Id.
12 Mass. B. Op. 2007-01 (2007). The Massachusetts opinion concluded that if the firm's obligation of confidentiality to the prospective client materially limited its obligations to its client, it was disqualified. That approach, in a jurisdiction without Rule 1.18 (see below) balances the competing interests by the remedy applied. It is unclear if that will be the approach of other jurisdictions.
13 In jurisdictions which follow Arizona's analysis, the following may be sufficient, with the last sentence added to remove any doubt:
E-mail addresses of our attorneys are not provided as a means for prospective clients to contact our firm or to submit information to us. By clicking "accept", you acknowledge that we have no obligation to maintain the confidentiality of any information you submit to us unless we have already agreed to represent you or we later agree to do so. Thus, we may represent a party in a matter adverse to you even if the information you submit to us could be used against you in the matter, and even if you submitted it in a good faith effort to retain us.