E-Ethics Vol. III, No. I (May 2004)
(c) 2004 by Professor David Hricik
Mercer University School of Law

"Whoops! I did it Again! What Britney Spears Can Teach Us About the Ethical Issues Arising From the Intentional Transmission of Confidences From Prospective Clients to Firms"

Information can be more readily disclosed to lawyers without their consent. 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. A lawyer who talks to a client can, before hearing information that might create a conflict of interest, ask who the adverse party was, inquire as to the general nature of the matter, and perform a conflicts check. Even with a fax, a lawyer can often recognize by the letterhead or coversheet the potential client, and stop reading.

Now, a putative client can simply send an e-mail - from an address which may not be as descriptive of the person's identity as letterhead can be -- to a lawyer that discloses important confidential information that could lead to disqualification of the firm. For example, a person could read a law firm web site and conclude that the firm would be an excellent choice to represent her. She could then send the firm an e-mail explaining the case, and discussing its potential strengths and weaknesses, and asking for a meeting.

If the firm had already been representing that putative client's opponent in the matter, the receipt by the firm of that confidential information could disqualify from continuing to represent that client - even if no attorney-client relationship was formed. That is because many states hold that a person who discloses confidential information to a firm in a good faith effort to hire it can disqualify that firm to the same extent as if it had retained it. 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). Many firms, in an apparent response to cases such as Gilmore, 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. These firms want to warn prospective clients that "anything you send to us can be used against you in a court of law."

Some ethicists call these folk "whoops" clients. "Whoops!" is what the lawyer says when she suddenly realizes that the putative client wishes to sue her firm's long-standing, best client in a matter that a large cadre of her partners have been working on for several months. 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).

If a law firm can be disqualified because it received information from a prospective client during a phone call, it can likewise be disqualified if it reviews the same information sent by e-mail from a client seeking in good faith to hire the firm. But see id. (suggesting that parties could in bad faith send e-mails to many firms seeking to disqualify them, rather than hire them). Even a casual perusal of law firm web sites reveals that firms are obviously concerned about "whoops" clients and e-mail. Many firms put up disclaimers on their sites that state, essentially, 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.

A visit to most law firms' websites reveals that lawyers are posting many different kinds of contractual terms of use on their websites - terms which are often called "disclaimers". A visit to a typical site of a large law firm reveals for example, a statement that the articles on the site are "not legal advice"; a statement that the firm does not endorse material contained on other sites, even those to which it provides links; and a statement that the past successes of the firm are no indication of what might happen in the future with forthcoming cases.

The websites of many firms state that if a user sends information to the firm before that firm has agreed to represent the person, the firm will not hold the information in confidence. "None of the information you send will be deemed confidential"; says one site.

This section examines whether those disclaimers - which are, more accurately, contractual terms of use for the site - are necessary and, if so, explains how to construct an enforceable, useful term.

A. Purpose of the Disclaimer

The purpose of these disclaimers is to respond to the many cases which hold that a person who in good faith seeks to hire a lawyer (i.e., a prospective client) and who discloses confidential information during that process, can disqualify the lawyer - and his firm. One such case for example, disqualified an entire firm from representing its client of more than 50 years standing because the opposing party had contacted one of the firm's lawyers by phone and had disclosed confidences during that single telephone call which could be used against that prospective client. Gilmore v. Goedecke, 954 F. Supp. 187 (E. D. Mo. 1996).

Under these cases, so long as the prospective client disclosed the information in good faith (for example, in an attempt to determine whether to retain the firm), the firm has an obligation to maintain the information in confidence, and is thus disqualified to represent a party adverse to the then-prospective client in a dispute where the information could likely be used against it. The firm owes a duty of confidentiality even to those parties that it declines to represent, or who choose to be represented by another firm.

Courts had so widely recognised this duty that a form of it is actually now contained in the 2003 version of the American Bar Association Model Rules of Professional Conduct, which in 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. In full, Model Rule 1.18 provides:

(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). If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a 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.

Many firms, in response to this ethical principle, have a practice of requiring prospective clients to 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. The ABA's new Rule 1.18 specifically recognises informed consent as one means to limit the impact of receipt of information from prospective clients on law firms: "A lawyer may condition conversations with a prospective client on the person's informed consent that no information disclosed during the consultation will prohibit the lawyer from representing a different client in the matter." ABA Model Rule of Professional Conduct 1.18, cmt. 5. Accord Pa. Ethics Op. 96-2 (1996).

Courts will likely enforce a proper agreement by a prospective client. Thus, a lawyer can avoid this problem by using an effective agreement in advance.

These website disclaimers appear designed to achieve an effective, advanced agreement. The desire to avoid disqualification by receipt of information from prospective clients has apparently motivated firms to put these disclaimers on their websites. These firms want to warn prospective digital clients that "anything you send to us can be used against you in a court of law". Read literally, they would prevent for example, a person who sent an e-mail to a firm in good faith in an effort to hire the firm from later arguing in a motion to disqualify, that the information was confidential and thus all lawyers in the firm who received it are disqualified from being adverse to it, in a matter in which that information could be used against that person.

B. Are These Website Disclaimers Even Necessary?

The need for advanced agreements arose in the context of old-world contacts, by face-to-face meeting or telephone call. Should an e-mail sent by a prospective client through a law firm website be treated any differently than a phone call placed to a lawyer, or a meeting held between lawyer and prospective client? Is e-mail so different in kind from these old-world forms of communication that a different rule applies, and so these advance waivers are unnecessary?

For practical reasons, the presence of a firm on the web increases the need for these disclaimers. Having a website gives any person connected to the Internet the easy means to transmit unsolicited information to law firms, since it can be done unilaterally and even over the objections of the lawyer. Further, a lawyer who receives an unsolicited telephone call can simply stop the prospective client from disclosing additional information as soon as the lawyer recognises a conflict exists. An e-mail is sent instantaneously, and opened in full at once.

But a lawyer who accepts a phone call obviously, by continuing the conversation, accepts the prospective client's invitation to consider forming an attorney-client relationship. In contrast, a lawyer who merely opens an unsolicited e-mail has done nothing to indicate to its sender that the lawyer has any desire whatsoever to represent that person. St. B. of Ariz. Eth. Op. No. 02-04 (Sept. 2002). The Arizona Bar Association concluded that a lawyer who did not have a website, but had an e-mail address, did not implicitly invite submission of information by prospective clients. Such lawyers, according to the committee, owed no duty of confidentiality to prospective clients, since the absence of a website indicated no willingness to accept clients by e-mail. Id. Whether other courts and bar associations will concur in this conclusion remains to be seen. After all, having a fax machine or a mail box or a telephone triggers the obligation of confidentiality in the analog world regardless of whether the lawyer has a yellow pages advertisement or the like.

However, what if the would-be client located the lawyer's e-mail through the firm's website? Does the presence of a website indicate that the lawyer is open to accepting clients through e-mail? Two ethics opinions have addressed whether unsolicited e-mail should be treated any differently than any other form of communication concluded that a law firm that has a website implicitly agrees to consider whether to represent parties who send e-mail to the firm. They reached similar, but identical answers.

In St. B. of Ariz. Eth. Op. No. 02-04 (Sept. 2002), the bar association reasoned that "if the attorney maintains a website without any express limitations on forming an attorney-client relation, or disclaimers explaining that information provided or received by would-be clients will not be held confidential," then the lawyer has implicitly agreed to consider forming an attorney-client relationship with those who transmit e-mail.1 In contrast, in Opinion 2001-1 of the Association of the Bar of the City of New York, (March 1, 2001), the committee reasoned that information was not "confidential" when unilaterally transmitted, but it was (if transmitted in good faith), privileged. After concluding that a firm would not necessarily be disqualified from continuing to represent an existing client, and as part of a lengthy analysis, the opinion reasoned:

Thus, in the situation presented here, we believe that prospective clients who approach lawyers in good faith for the purpose of seeking legal advice should not suffer even if they labor under the misapprehension that information unilaterally sent will be kept confidential. Although such a belief may be ill- conceived or even careless, unless the prospective client is specifically and conspicuously warned not to send such information, the information should not be turned against her. Indeed, we see no reason that the other client should be benefited by the fortuitous circumstances that the lawyer approached by the prospective client turned out to be the same lawyer retained by the adverse party. Nor do we believe that zealous advocacy compels a different result.
St. B. of Ariz. Eth. Op. No. 02-04 (Sept. 2002), p. 7.

Thus, Arizona and New York lawyers who have websites need both to effectively disclaim any intention to form an attorney-client relationship and to effectively warn prospective clients of the lack of confidentiality over transmitted information.

New Model Rule 1.18 differs even further in its approach to this issue. Even where there is no advanced agreement, only the lawyer who actually received the information is disqualified if he reviewed the information only to the extent necessary to determine whether to represent the client, took steps to avoid further dissemination of the information, and the prospective client is given notice. Model Rule 1.18(d). If this is acceptable to a firm, then it somewhat reduces the need for specific agreement. However, the rule is not in effect in many jurisdictions. Even where it is in effect, the benefits of having an actual agreement with the client include reducing uncertainty and decreasing the cost of litigating which standard applies.

C. Enforcing Terms of Use

Simply relying, as many do, on passive terms of use accessible through a "disclaimer" or "legal notices" link on the bottom of their homepage probably do not have an enforceable agreement. A basic principle of contract law 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 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. In Specht v. Netscape Communications Corp., 306 F.3d 17 (2d Cir. 2002) 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 site asked the user to "please review" those terms and conditions. Thus, the Specht case presented the question of whether a user of a website was bound by a term of use that was merely present on the site, but which the user was not required to read and affirmatively assent to in order to download the software. See Kevin P. Cronin & Ronald N. Weikers, Data Security & Privacy Law: Combating Cyberthreats 10:29 (2003) (discussing click wrap and other forms of web-based agreements). See also Ticketmaster Corp. v. Tickets.com, 2003 Copr. L. Dec. 28,607 (C.D. Cal. March 7, 2003) (discussing other assent issues concerning Internet usage).

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. The courts recognize that where the user affirmatively "clicks" agreement to the term - so-called "click wrap" agreement - the term could be enforced, but rejected attempt to create "browser wrap" agreements - binding users of a site merely because they opened it in their browser.

Thus, those firms (and there are many) which only have a "disclaimer" or "terms of use" link on their homepage which links to a page that contains the term of use regarding the confidentiality of e-mail sent by prospective clients, likely have not done enough to create an enforceable agreement with the prospective client. Click wraps may be the only way to effectively ensure that a court will hold that the prospective client manifested assent to the term. Without manifested assent, the term is not binding on the prospective client.

Thus, a firm website should be structured so that the client must assent to the term in order to transmit e-mail. Several firms have this feature. However, on a few of them, the person can, instead of clicking "agree" simply close the dialogue box and nonetheless send e-mail. A system which allows users to send e-mail by, in essence, denying their acceptance of the term obviously does not serve the purpose for which it is designed.

D. Choose Language Carefully

Applying the correct technology is only part of the battle. The language to be used in a potential disclaimer must be chosen with the utmost care.

Some law firm websites have disclaimers which say that any information transmitted prior to the written agreement of the firm to represent the transmitting party will not be held in confidence. While no doubt a client who agrees to such terms would be precluded from disqualifying the recipient, such language may go too far. Suppose, for example, that the firm decides after receiving an unsolicited disclosure of key information to represent that client. May the client claim privilege over that communication in the dispute? In most jurisdictions, the answer would ostensibly be "no" since the client when it transmitted the information knew it would not be held in confidence.

Care should thus be used in determining which language to adopt as a disclaimer. The approach of Model Rule 1.18 is instructive. It does not state that the information will not be held in confidence, but that receipt of the information by the firm will not preclude it from representing another party in the matter.

The principle endorsed by the rule is important. There is far less force to objections to an agreement which lets a firm continue to represent a client in a matter, but which still requires it to keep information confidential from that client, than there is to one which ostensibly lets the firm disclose to its client, critical information disclosed by a prospective client.

E. Model Language to Adapt to Your Jurisdiction and Practice

Any language in a term should do what it needs to do, but no more. Asking a court to enforce an agreement by which a party supposedly gives up all right of confidentiality to information which it submitted in good faith to the firm, to be enforced by a court or found to be ethical by a bar association. Likewise, an agreement which might destroy the ability of a party who eventually becomes a client to claim privilege over information previously disclosed to a firm, also goes too far.

Lawyers should adopt language that does what they want it to do: i.e., prevent even those who in good faith seek to hire the firm from disqualifying it from representing another party where that information can be used against that prospective client. The following examples of language seek in varying degrees to balance the legitimate but competing needs of the firm and its clients, as well as those 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 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.
The foregoing 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 recognise that our review of your information, 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.
In jurisdictions which follow Arizona's analysis, the following may be sufficient, with the last sentence added to remove additional 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 that matter.
E. Conclusion

As a final point, be sure that the disclaimer you use is effectively implemented. By that I mean this: I've been to some law firm sites, and even though a popup containing a disclaimer is presented when you try to e-mail lawyers, you can click to close the box - and not accept the terms - and still send an e-mail. Names of those firms will be protected here to protect the innocent. You might go to your own firm's site and see how whether your IT people have implemented your approach effectively.

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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