E-Ethics Vol. I, No. VI (November, 2001)
(c) 2001 by David Hricik
"This is Not a Pipe"
What does Magritte's famous painting have to do with this month's edition of E-Ethics, you ask?
Only a little bit, actually. I thought of the Magritte painting while viewing law firm websites which state -- over and over again -- that "this is not legal advice" while providing me with all sorts of information which looked to me like legal advice. Which was reality?
This month's e-Ethics deals with the related question of the efficacy of the posting of "disclaimers" on law firm web sites which advise viewers of the site not to send e-mails to the firm with any information before the firm agrees in writing to represent the person. These disclaimers typically state that if someone sends the firm information before such time, the information will not be "confidential." I assume that such disclaimers are intended to mean either that the firm will be able to use the information against the sender, or, at minimum, that the firm will not be disqualified as a result of receiving the information.
The purpose of these disclaimers is in apparent response to the cases which hold that a person who in good faith seeks to hire a lawyer, and who discloses confidential information in so doing, can disqualify the lawyer -- and his firm. See, e.g., Gilmore v. Goedecke, 954 F. Supp. 187 (E. D. Mo. 1996) (entire firm disqualified from representing client of 50 years because the plaintiff contacted a firm lawyer by phone and disclosed confidences during the conversation). Many firms, in response to such cases, have prospective clients agree in writing before any face-to-face meeting that only the lawyers who actually receive information from the prospective client, rather than the entire firm, will be disqualified from being adverse to the prospective client if the firm is not retained.
A similar rationale apparently underlies these disclaimers. These firms want to warn prospective clients that "anything you send to us can be used against you in a court of law."
There may be a basic principle of contract law that defeats such disclaimers. Where is the assent by the prospective client?
The courts in addressing web-contracts are holding that terms which are merely somewhere on a web site are not part of a contract formed by a web site user. Instead, only terms which are affirmatively "clicked" and agreed to are part of the agreement. See Specht v. Netscape Communications Corp., 150 F.Supp.2d 585 (S.D.N.Y. 2001). In Netscape, an arbitration clause was on Netscape's website on a page of "user terms," but a user was not required to "click" acceptance to the arbitration clause before downloading software. Instead, the arbitration clause was merely on the site, and the user was asked to "please review" those terms and conditions. (This is known as "browser wrap" in web contracting parlance.)
Following the approach of other courts, the Netscape court held that there was no proof that the user had assented to the arbitration clause; hence, there was no agreement to arbitrate.
If your firm is relying upon a disclaimer somewhere on its site to impose a "we can use what you tell us against you" clause, that may not be enough. A clickwrap may be required. For an example of one firm using a click wrap approach click here and then on the left side, try to send the lawyer an e-mail.
Click wraps may be the only way to effectively ensure that information disclosed by a prospective client in an e-mail does not disqualify an entire firm.
E-Ethics is a free monthly e-mail based newsletter concerning ethical issues in the practice of law, ranging from conflicts of interest, to in-house counsel licensing requirements, to the ethics issues created by the use of high-technology. Links to numerous sites relating to those topics, as well as other discussions, can be found on Hricik.com. Obviously, as is the case with any legal question, the matters discussed in E-Ethics are time-sensitive and subject to change. No one should rely on E-Ethics in place of actual legal advice addressed to a specific set of known facts.
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