October 2011 • Volume 99 • Number 10 • Page 490
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ABA Ethics, Part 1: new opinions on lawyer websites, e-mail/client confidentiality
New ethics opinions give helpful e-advice, particularly for lawyers with websites.
The ABA's Center for Professional Responsibility has released several new ethics opinions. Two that are inspired by technology will be of particularly wide interest to lawyers.
Lawyer websites - mind your disclaimers
Formal Opinion 10-457, Lawyer Websites, addresses concerns about the potential for websites to mislead laypeople into believing that lawyer-client relationships have been created when they have not.
The opinion begins by recognizing the attractions and benefits as well as the proliferation of lawyer websites. As every lawyer knows, websites enable direct and effective communication with clients and potential clients about the law and legal services. Through electronic links, they can facilitate direct contacts to the law firm or individual lawyers.
But lawyer websites may also lead visitors to misunderstand whether and how they may acquire a relationship with the lawyer. Without proper disclaimers, visitors may think that information they send through the website will be kept confidential, that information the website provides constitutes legal advice, that a lawyer-client relationship has been created, or that the lawyer will be prevented from representing an adverse party through their website interaction.
To avoid any possibility of misleading visitors and falling afoul of Model Rules 7.1 or 8.4(c), the opinion recommends regularly updating the website, both as to legal information and information about the firm's lawyers, to ensure accuracy. If the firm includes any information that identifies current or former clients on its website, it must be certain to have obtained informed consent from those clients under Model Rules 1.6 and 1.9. Disclaimer language might include warnings that all legal information provided is general and should not be relied on as legal advice, which may be given only after full consideration of all relevant information about the visitor's individual situation.
Lawyer websites that permit or invite interactivity present special concerns. Model Rule 1.18 protects the confidentiality of communications with prospective clients if a "discussion" has occurred, the opinion notes. Though not all communications from persons interested in becoming prospective clients will necessarily result in "discussions" so as to invoke the rule's coverage, the opinion warns that the lawyer's conduct, including inviting website visitors to submit information concerning that possibility, will be key to that determination.
To avoid that possibility, the rule suggests clear, conspicuous warnings to forestall any website visitor misunderstandings that a client-lawyer relationship has been created through the website, that the visitor's information will be kept confidential, that the website provides legal advice, or that the website visit will prevent the lawyer from representing an adverse party.
The committee concludes its opinion by warning that contrary actions or communications by lawyers may undercut the most ironclad of website limitations, conditions, waivers, or disclaimers.
E-mail to third-party's counsel
Formal Opinion 11-460 addresses a lawyer's duty when the lawyer receives copies of a third party's e-mail communications with that party's counsel. To explore that issue, the opinion uses a hypothetical scenario in which an employee has filed suit against her employer. After the suit is filed, the employer copies the contents of her workplace computer for potential use in its defense and provides a copy to its outside counsel.
On review, counsel sees that some of the employee's e-mails are labeled "attorney-client confidential communication." Must the employer's counsel notify counsel for the employee that the employer has gained access to this correspondence?
Model Rule 4.4(b) provides "A lawyer who receives a document relating to the representation of the lawyer's client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender." (Illinois's corresponding RPC 4.4(b) omits the language "or reasonably should know.") Because the e-mails were not "inadvertently sent," the opinion recognizes that the model rule does not expressly address this scenario. In its opinion, the committee also declined to find that the rule implicitly applies in the situation described or that any rule provides a clear answer to the question posed.
The committee suggested, though, that courts might impose disclosure obligations, whether in individual cases or through their rulemaking authority. Additionally, if the lawyer believes the law governing potential disclosure is unclear, the lawyer may, under Model Rule 1.6(b)(6) [identical to Illinois's RPC 1.6(b)(6)], disclose that the employer has retrieved the employee's attorney-client e-mail communications to the extent the lawyer reasonably believes it is necessary to do so to comply with the relevant law.
Even if no law can reasonably be interpreted as requiring a report, the committee said, the lawyer's employer client must decide whether to make the disclosure. And disclosure might well be in the employer's best interest, it noted.
Obtaining a ruling from the court on the admissibility of the employee's attorney-client communications before attempting to use them and, if possible, before the employer's lawyer reviews them will minimize the risk of disqualification or other sanction if the court ultimately concludes that the communications are privileged, the committee observed. It is up to counsel for the employer, of course, to explain these considerations and alternatives to the employer client so that the employer may make an informed decision.
Together with other materials, the new opinions are available on the center's web page at http://www.americanbar.org/groups/professional_responsibility.html. Other recently released opinions include Formal Opinion 10-456, Disclosure of Information to Prosecutor When Lawyer's Former Client Brings Ineffective Assistance of Counsel Claim; Formal Opinion 11-458, Changing Fee Arrangements During Representation; Formal Opinion 11-459, Duty to Protect the Confidentiality of E-mail Communications with One's Client; and Formal Opinion 11-461, Advising Clients Regarding Direct Contacts with Represented Persons.