July 2013 • Volume 101 • Number 7 • Page 370
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Ethics and the Unsolicited Email
You don't have to respond to unsolicited email, but what if you want to? Here's how to limit your ethical obligations to your new "prospective client."
The Internet is a source of scams of all shapes and sizes, and lawyers are not immune. A common scam is the unsolicited email asking a lawyer for help collecting a debt, recovering past due child support, or handling some other commercial matter. Often these emails appear to be from a foreign source, use poor grammar and spelling, and lack common business correspondence conventions. See Gunnarsson, "Beware the Chinese E-mail Scam," 97 Ill. B. J. 386 (August 2009); and "E-mail Scams and Lawyer Trust Accounts" www.iardc.org/information/alert.html.
Experience teaches that the best practice is to delete them without responding. But does a lawyer have an ethical obligation to respond to what might be a legitimate inquiry about legal services? The answer is "no," but the question raises important issues about the use of Internet communication for client development.
Unsolicited email: no response necessary
Receipt of an unsolicited email from someone other than a client seeking representation establishes no ethical obligations on your part. This includes, most fundamentally, no obligation to respond. The general duties of communication set out in the Illinois Rules of Professional Conduct ("IRPC") 1.4 are owed to clients and no one else.
More specifically, the Rules impose no obligation when there is no reasonable expectation that a lawyer is willing to discuss the possibility of forming a client-lawyer relationship, such as when he or she receives an unsolicited email. See ISBA Professional Conduct Advisory Opinion 12-18 (July 2012). This includes not only purely unsolicited emails but also those that may have been generated in response to a lawyer's passive advertisement, such as a phone book ad, a firm brochure, or a firm website that merely describes the lawyer's qualifications. See ABA Model Rule 1.18, Comment .
Scams notwithstanding, Internet communications can be a valuable client development tool. The unsolicited email you receive may not be from a foreign country but from a neighbor down the street. It may reveal familiarity with you, your practice, your clients, or people you know.
If you determine the email is legitimate, proceed cautiously. By inviting the sender to provide additional information you have likely made him or her a "prospective client" under IRPC 1.18. You owe a prospective client duties of confidentiality and loyalty.
For example, you are obligated not to reveal or use the information a prospective client has provided, even if you don't enter into a client-lawyer relationship. See IRPC 1.18(c). Limited exceptions exist, such as when the prospective client consents to use the information or it has become generally known.
In terms of loyalty, your interaction with the email sender may be establishing the basis for your (and your firm's) disqualification, even if you decline the representation but nevertheless come to represent another person in the same or a related matter. If you received information that would be "significantly harmful" to the sender, you could be disqualified. IRPC 1.18(c).
Too much information: protecting yourself from compromising disclosure
So, what do you do when you receive an unsolicited email seeking representation? At the outset, use your common sense and determine if it is legitimate. Discretion is often the better part of valor, and you could hardly be professionally criticized for not responding to (and deleting) an email that appears illegitimate.
However, you should not be so risk averse as to automatically disregard all email inquiries. If the email passes your initial review (most unsolicited emails probably will not), perform some due diligence. Ask yourself whether it's a matter you would normally take. Google the sender. Look him or her up in the phone book or LinkedIn. If you're in a firm, ask partners and staff if they know the person.
To the extent you can, run your conflicts check with the information provided. If you feel comfortable responding in some fashion, you could do a couple of things depending on your business judgment and practices. You could simply invite the prospective client to set up a face-to-face meeting. You could also seek additional information from the email sender electronically. Of course at this preliminary stage, you should not be giving any legal advice.
If you seek additional information by email, do not invite more than you need to determine whether the representation is possible or desirable for you to undertake. When you seek additional information about the prospective client's legal issue, include clear and reasonably understandable warnings and cautionary statements. See ABA Model Rule 1.18, Comment .
When the prospective client communicates with you unilaterally via email, the give and take of an in person interview is absent. Unlike in a face-to-face interview, you cannot tell a prospective client to stop talking when it becomes clear the information affects, say, your best client.
To protect yourself in this situation, condition your consideration of additional information on the sender's informed consent that any information he or she discloses will not prohibit you from taking on another client in the matter should you determine that you cannot represent the sender. Such a condition is entirely appropriate. See IRPC 1.18, Comment .
Alternatively, you may seek the prospective client's informed consent to use any information he or she provides, thereby eliminating any confidentiality concerns. Either option encourages the client to limit disclosures at this initial stage of lawyer-client relationship formation.
Once you have moved beyond the initial consultation, whether electronic or face to face, and determined that you want to represent the prospective client, a signed engagement letter along with a retainer continues to be the best guarantee of the legitimacy of the person seeking representation via unsolicited email.
Charles J. Northrup is ISBA general counsel.