Ethics Opinon 2006-1

I. QUESTION
Lana Lawyer has a plaintiff’s personal injury practice. She does not maintain an internet web site and does not otherwise engage in advertising. However, her e-mail address is published on the State Bar of California membership records website accessible to the public.

On Monday morning Lana received an e-mail from Vicky Victim, the driver of the second car in a five car “daisy chain” rear end collision, which read:

Since Lana was in court all morning and had already scheduled a conference with Henry Hurt for Monday afternoon, she did not access Vicky’s e-mail message prior to her conference with Henry. Henry’s initial interview sought Lana’s representation for his personal injuries arising out of an auto accident. During the conference, Henry disclosed a lot of confidential information and produced a police report, which Lana read later.

After the conference, but before she signed off on Henry’s fee agreement, Lana accessed her e-mail and read Vicky’s message. After reading Vicky’s message, Lana read Henry’s police report which identified the driver of the car that hit him as Vicky Victim. She has the following questions concerning her ethical obligations:

1. Vicky Victim’s unsolicited e-mail is not confidential. Private information received from a non-client via an unsolicited e-mail is not required to be held as confidential by a lawyer, if the lawyer has not had an opportunity to warn or stop the flow of non-client information at or before the communication is delivered.
2. Lana is not precluded from representing Henry and may use non-confidential information received from Vicky in that representation.
3. If Lana cannot represent Henry, she cannot accept representation of Vicki Victim since Lana had already received confidential information from Henry material to the representation.

III. AUTHORITIES CITED
Cases
City and County of San Francisco v. Superior Court (1951) 37 Cal.2d 227, 235, 231 P.2d 26
City of Reno v. Reno Police Protective Association (Nev. 2002) 118 Nev. 889, 897-898, 59 P.3d 1212, 1218
Estate of Dupont (1943) 60 Cal.App.2d 276, 288-289, 140 P.2d 866
Flatt v. Sup. Ct.(Daniel) (1994) 9 Cal.4th 275
Houston General Insurance Co. v. Superior Ct. (1980) 108 Cal..App.3d 958, 964, 166 Cal.Rptr.904
Marriage of Zimmerman (1993) 16 Cal.App.4th 556, 20 Cal.Rptr. 132
Miller v. Metzinger (1979) 91 Cal.App.3d 31, 39-40, 154 Cal.Rptr. 22
Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971) 6 Cal.3d 176, 181, 98 Cal. Rptr. 837 People v. Canfield (1974) 12 Cal.3d 699, 705, 117 Cal.Rptr. 81
People v. Dorrance (1944) 65 Cal.App.2d 125, 129, 150 P.2d 10
People ex rel. Dept. of Corporations v. Speedee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135 People v. Gionis (1995) 9 Cal.4th 1196, 892 P.2d 1199, 40 Cal.Rptr.2d 456
People v. Velasquez (1987) 192 Cal.App.3d 319, 327, 237 Cal.Rptr. 366
Roberts v. City of Palmdale (1993) 5 Cal.4th 363, 371, 20 Cal.Rptr.2d 330, 853 P.2d 496

Statutes:
Business and Professions Code section 6068(e), subd. (1); §6068(m)
Evidence Code, §917(b);§§ 950, et seq., 951, 952, 954

Rules:
Rules of Professional Conduct, rules 310(E); 3-500.
American Bar Association Model Rules of Professional Conduct, rules 1.4., 1.18 subpart (a), (b), comment [2].
Ethics Opinions:
State Bar of California Formal Opns. 2005-168; 2003-161; 1993-133
Los Angeles County Bar Association Formal Opinions Nos. 506 and 366.
American Bar Association Formal Ethics Opinion 99-413
Arizona State Bar Ethics Opinion 02-04
Association of the Bar of the City of New York Formal Opinion 2001-1

IV. ANALYSIS

1. Introduction

The advent of the electronic communication technology revolution via computer networks presents new opportunities for public access to legal services and for lawyers and law firms. The electronic information superhighway accessed currently through computer technology allows the same types of public access that one flowed through more traditional forms of communication (e.g., in person conferences, mail and telephone) to be disseminated with vastly greater ease, speed and sometimes, at reduced expense. Internet access and electronically transmitted messages (e-mail) have created new markets, marketing techniques for prospective legal services and modes of delivery of legal services. Consumers of legal services’ abilities to speedily and easily seek information regarding the type of attorneys or legal services that may be appropriate to meet their needs and to make contact with legal services providers have expanded exponentially. The advent of new technology concerning the delivery of legal services also poses a challenge: how to preserve the core values of the legal profession in the application of new technology. This opinion focuses upon how one core value, confidentiality, applies to e-mail communications from prospective clients. It involves a balancing of important public policies. First, there is the important public policy of encouraging the widest access to legal services, peaceful dispute resolution through law and vindication of personal rights and freedoms. Second, there is the important public policy of confidentiality of communications between those seeking legal services and the lawyers they consult in order to build trust and confidence in a potential attorney-client relationship and to encourage the fullest communication to enable both parties to determine if a prospective attorney-client relationship is appropriate. Third, is the public policy in protecting attorneys’ current clients from conflicts created by unsolicited or inadvertently disclosed confidential information from prospective clients via e-mail.

2. The Duty of Confidentiality

California lawyers’ duty of confidentiality has been said to involve attorney-client communications, protected by the attorney client privilege (Evidence Code, § 950, et seq.) and the broader duties under Business and Professions Code section 6068(e) (all information gained in the professional relationship that the client has requested to remain secret or the disclosure of which would be harmful or embarrassing to the client. (Cal. State Bar Formal Opns. Nos. 2003-161; 1993-133 and authorities cited therein.) In the context of this hypothetical, we start the analysis with a discussion of attorney- client privilege, because it includes the Legislative policy defining when the privilege attaches to a consumer of legal services initial contact with a lawyer (Evid. Code, §§951-952) and because other broader duties of confidentiality attach when the attorney-client privilege applies to non-client communications. (Cal. State Bar Formal Opn. No. 2003-161.)

1. The Duty of Confidentiality May Attach Even Though No Attorney-Client Relationship Has Been Formed

The public policy supporting the attorney-client privilege (Evid. Code §950 et seq.) is to further the proper and orderly functioning of our judicial system, which necessarily depends on the confidential relationship between the attorney and the client. (People v. Velasquez (1987) 192 Cal.App.3d 319, 327, 237 Cal.Rptr. 366.) Unless a client may make full disclosure of the facts to the attorney, the client risks inadequate representation. (City and County of San Francisco v. Superior Court (1951) 37 Cal.2d 227, 235, 231 P.2d 26.)

The attorney-client privilege applies to communications made in anticipation of litigation and to legal advice in the absence of litigation. (Roberts v. City of Palmdale (1993) 5 Cal.4th 363, 371, 20 Cal.Rptr.2d 330, 853 P.2d 496.) The attorney-client privilege does not require actual retention of the attorney. If a person seeks an attorney’s assistance, for the purpose of professional employment, any information acquired by the attorney is privileged, even in the absence of actual employment. (People v. Canfield (1974) 12 Cal.3d 699, 705, 117 Cal.Rptr. 81; People v. Dorrance (1944) 65 Cal.App.2d 125, 129, 150 P.2d 10; Estate of Dupont (1943) 60 Cal.App.2d 276, 288-289, 140 P.2d 866.) The compelling necessity for this rule is apparent: consumers of legal services could not safely consult an attorney for the first time if attachment of the privilege were dependent upon whether the attorney accepted or declined retention after hearing the information. (Estate of Dupont, supra, 60 Cal.App.2d at p. 289, 140 P.2d 866.)

Once the privilege attaches, California Evidence Code section 954 provides that a client “has a privilege to refuse to disclose and to prevent another from disclosing, a confidential communication between client and lawyer . . . ” (Emp. added.) More importantly, an attorney has a duty to claim the attorney-client privilege and refuse to disclose confidential information when requested. (Evid. Code, §955.) Finally, California ethics opinions suggest that whenever the privilege applies, the statutory duty of confidentiality pursuant to Business & Professions Code section 6068(e)(1) also applies. (California State Bar Formal Opinions No. 2003-161, 1984-84 and Los Angeles County Bar Association Professional Responsibility and Ethics Committee Formal Opinions No. 506 and 366.)

However, the attorney-client privilege does not always apply whenever issues touching upon legal matters are discussed with an attorney. (People v. Gionis (1995) 9 Cal.4th 1196, 892 P.2d 1199, 40 Cal.Rptr.2d 456.) A two step analysis is necessary to have confidentiality attach: (1) the person must be a “client” within the meaning of Evidence Code section 951 and (2) the communication between the person and the attorney must be “confidential.”

This second element appears to be satisfied. Vicky’s transmission of her information about her legal matter via the internet does not, in and of itself, nullify confidentiality. (Evid. C., §917(b); see also City of Reno v. Reno Police Protective Association (Nev. 2002) 118 Nev. 889, 897-898, 59 P.3d 1212, 1218; ABA Formal Ethics Opn. 99-413.)

Therefore, we must analyze whether Vicky is a “client” within the meaning of Evidence Code §951 in order to determine whether the content of the communication is privileged.

2. Is a Person Sending an Unsolicited E-mail a “Client” for the Purposes of the Attorney-client Privilege ?

Evidence Code section 951 defines a “client” for the purposes of privilege to mean a “. . . person who . . . consults a lawyer for the purpose of retaining the lawyer or securing legal service or advice from him in his professional capacity.” Although there is no case law defining the elements to meet the definition of section 951, the plain language suggests three elements, as relevant here

First, the client must “consult” a lawyer; Second, the purpose of the “consultation” must be (a) to retain the lawyer, (b) to secure legal service or (c) to secure advice; Third, the retention or securing of legal services or advice must be in the professional capacity as an attorney at law. (Compare Restatement (3rd) Law Governing the Law of Lawyers, §15, 68, 70(c).)


Vicky Victim’s e-mail to Lana Lawyer, by its content, clearly indicates that she is sending the communication for the express purpose of retaining Lana and securing her legal services. Therefore, Vicky has satisfied the “purpose” and “professional capacity” requirements of the definition.

The fundamental issue is whether the content of her e-mail, standing alone, constitutes a “consultation” so that she is deemed a “client” for attorney-client purposes.

We have found no California authority directly resolving this issue.

The California Supreme Court, in a completely different context, discussed one means by which an attorney may prevent a prospective client from engaging in a consultation which would invoke duties of confidentiality. In People v. Gionis, (1995) 9 Cal. 4th 1196, 1202-1205, 1210-1211, 40 Cal.Rptr. 2d 456, a man asked an attorney/business associate/friend to come to his home because he was upset over having been served with dissolution of marriage papers and requested legal assistance from the lawyer. Before the man made any incriminating disclosure, the attorney unequivocally refused to represent him in the dissolution proceedings. The man made incriminating statements, including that he had no idea how easy it would be for [the man] to hire someone to "really take care of her [the wife]," and that if [the man] were to do something, he would wait until an opportune time to act in order to avoid suspicion. Thereafter, the man assaulted his wife and was prosecuted criminally for assault. The attorney testified against the defendant, over his objection on attorney-client privilege grounds. The California Supreme Court held that the attorney-client privilege does not extend to disclosures made after the attorney refuses to undertake representation since a person could have no reasonable expectation of being represented by an attorney after such a refusal is explicitly made.

Although the prospective client and attorney interchange in People v. Gionis was in person, the Supreme Court refused to permit a “consultation” for the purpose of Evidence Code section 951 to be unilaterally created by the prospective client. The Court recognized that the lawyer must have some opportunity to decline a consultation.

This point was reiterated in California State Bar Formal Opinions Nos. 2003-161 and 2005-168, wherein the Standing Committee on Professional Responsibility and Conduct of the State Bar of California (“COPRAC”) observed that strangers do not have the unilateral power to impose either an attorney-client relationship or a duty of confidentiality upon a lawyer through unsolicited requests for advice.

In Opinion No. 2003-161, COPRAC considered under what circumstances an unsolicited communication from a person seeking legal services or advice from an attorney should be protected as confidential client communications, where the attorney accepted no engagement, expressed no agreement as to confidentiality and assumes no responsibility over the client’s matter. Relying in part upon People v. Gionis, COPRAC created an analytical framework for resolving whether an unsolicited contact by a non-client to an attorney would result in a duty of confidentiality:

1. unequivocally explains to the speaker that he cannot or will not represent him, either before the speaker has an opportunity to divulge any information or as soon as reasonably possible after it has become reasonably apparent that the speaker wants to consult with him and,
2. has not evidenced, by his prior words or conduct, a willingness to engage in a confidential consultation with the individual.
   
Where an attorney has not expressly refused to represent the individual, it is possible for an individual to have a reasonable belief that he or she was consulting the attorney in a professional capacity, even without the attorney’s express agreement. COPRAC suggested that factors to be considered in determining whether the individual’s belief is reasonable include:

1. Whether the lawyer has a reasonable opportunity to comprehend that a person is trying to engage in a consultation
2. Whether the lawyer has a reasonable opportunity to interpose a disclaimer before the person begins to speak; or
3. Whether the person addressing the lawyer does so in a manner that prevents the lawyer reasonably from interposing any disclaimer or disengaging from the conversation.
   
We are persuaded that this analytical framework is useful for application in the present “office” setting involving the receipt of unsolicited e-mail. It is undisputed that Lana did not unequivocally explain to Vicky that she (Lana) could not or would not represent Vicky before Vicky’s information was divulged in the e-mail message. Nor, under the present state of technology of ordinary e-mail messaging could Lana have done so. Unlike telephonic voice mail messaging, ordinary e-mail messaging does not permit the delivery of a disclaimer to the sender prior to the sender delivering the message.

Moreover, Lana reviewed the entire message before it had become reasonably apparent that Vicky wanted to consult with Lana. Immediately upon reading her message, Lana could have sent a message to Vicky unequivocally explaining that she (Lana) could not or would not represent Vicky. However, since Lana could not delete the information received from Vicky from her mind, we believe that we must go further with the analysis to determine whether there is a duty of confidentiality.

Second, we must consider whether Lana ’s act of listing a public e-mail address on the State Bar of California’s website, along with other public information, such as address and telephone number, without more, constitute prior words or conduct which create a reasonable expectation that the lawyer has agreed to a consultation. We have determined that it does not.

Without more, an e-mail address is comparable to a street address and telephone number. Although the inclusion of the lawyer’s membership record indicates eligibility to practice law and contact information, it does not constitute an invitation to the public at large to communicate confidential information any more than a street address or telephone number does.

A closer question might exist if Lana had placed an e-mail address at the bottom of a print advertisement for legal services or in a yellow page telephone listing under an “attorney” category, without any disclaimers. In these circumstances, the only inference to be drawn from listing the e-mail address is to invite prospective clients to contact the attorney for legal advice or representation, giving rise to a further inference that private information divulged to the attorney would be confidential.

By contrast, the listing of an e-mail address with other attorney contact information on the State Bar membership record website gives rise to many equally reasonable inferences, including listing of contact information for State Bar disciplinary and public service contacts, facilitating professional contact by other members of the bar or by members of other professions for purposes other than professional employment, and facilitating contact by court or administrative personnel regarding issues pending before a tribunal, in addition to an implication that the person is available for professional employment by members of the public.

Concluding, as we have, that e-mail messaging presented Lana with no opportunity to expressly refuse to represent Vicky before the message was sent or immediately upon receipt, we have also determined that Vicky’s belief that her message would be confidential is unreasonable.

First, Lana had no reasonable opportunity to comprehend that Vicky was trying to engage in a consultation without reading the e-mail. Like a piece of mail, an unopened e-mail message contains no more information about the contents of the message than potentially a name and a subject line, which may or may not be descriptive. Therefore, until she opened the e-mail and reviewed the contents, Lana would have had no reasonable opportunity to comprehend that Vicky was attempting to engage in a consultation.

Second, Lana had no reasonable opportunity to interpose a disclaimer before opening and reviewing Vicky’s message. Under the present technology, once an e-mail address is known by an individual, e-mail messaging is truly unilateral, controlled by the sender. While a recipient of e-mail may filter or stop unwanted e-mail messages or choose not to review it, there is no other means of determining the content of e-mail messages except to read them.

As noted above, e-mail messaging does not provide any means of the recipient interposing a disclaimer to the sender prior to the sender’s dispatch of a message.
Third, as noted above, Vicky’s choice of e-mail messaging prevented Lana from reasonably interposing any disclaimer or disengaging from reading the very short message. The transmission of an unsolicited e-mail does not permit a lawyer, prior to reviewing the e-mail to determine its content, to have a reasonable opportunity to comprehend that a sender is trying to engage in a consultation, to have an opportunity to interpose a disclaimer before reviewing the person’s words or to disengage from the review of the e-mail. Accordingly, we conclude that a sender’s subjective belief that by unilaterally sending an e-mail requesting a conference with an attorney for the purpose of representation is not reasonable where the attorney has no opportunity to interact with the sender prior to receiving the e-mail message. Provided that as soon as reasonably possible after it has become reasonably apparent that the sender wants to consult with the attorney, the attorney unequivocally explains to the sender that the attorney cannot or will not represent the sender, , the attorney does not acquire duties of confidentiality pursuant to Evidence Code section 951 when the attorney reviews unsolicited e-mail messages by an unknown sender.



3. Substantially the Same Result Has Been Reached by Ethics Committee in Sister Jurisdictions

No ethics opinion in California has heretofore considered the specific problem of receipt of unsolicited confidential information by e-mail. Two ethics opinions from other jurisdictions that have considered that question have reached substantially similar conclusions.

Arizona State Bar Ethics Opinion 02-04

The Arizona majority opinion opined that (1)an attorney does not owe a duty of confidentiality to individuals who unilaterally e-mail inquiries to an attorney when the e-mail is unsolicited and (2) the sender of the unsolicited e-mail would not have a reasonable expectation of confidentiality in such situations. Applying this Arizona law to a hypothetical situation similar but not identical to the one presented in our hypothetical, the majority concluded:

The facts presented in the hypothetical reveal that no consultation has occurred, no advice was given, and no discussion occurred with [potential client.] Rather, the would-be client unilaterally forwarded information to [the attorney] without any request regarding confidentiality. [The attorney] did not agree to consider the relationship, nor did he ever have that opportunity before receiving the e-mail. Accordingly, it would appear that the unsolicited e-mailing of a request for representation to [the attorney] does not present a legitimate expectation of confidentiality concerning the information presented and no duty under ER 1.6 [the confidentiality rule] has arisen. The purposes of ER 1.6 are not discouraged by declining a would-be client the benefits of confidentiality when no steps are taken to maintain the confidence of information and the attorney has not “agreed to consider” the relationship.

Although the Arizona hypothetical involves a potential client adverse to an existing client, and ours is adverse to another potential client (Henry Hurt), both opinions focus on the key question: the reasonableness of the client’s expectation that the information will be kept confidential.

ABCNY Formal Opinion 2001-1

The Association of the Bar of the City of New York in its Formal Opinion 2001-1 took a slightly different approach. The Committee opined that where a prospective client simply transmits and unsolicited e-mail information to a law firm providing no real opportunity to the law firm to avoid its receipt, the law firm is not precluded from representing a client adverse to the prospective client in the same or a related matter. However, the Committee also opined that the content of the unsolicited e-mail could not be disclosed or used against the interests of the prospective client. In so concluding, the Committee observed that the information was neither confidential nor privileged, but should be protected because the prospective client was in good faith, though mistaken, as to the confidentiality of the e-mail. This latter opinion was also based upon portions of the Restatement (3d) of the Law Governing the Law of Lawyers and proposed ABA Model Rules of Professional Conduct which were never adopted.

Nor is the result of this opinion inconsistent with the ABA Model Rules of Professional Conduct (“ABA MRPC”).

ABA MRPC 1.18(a) provides, “A person who discusses with the lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.” Even if no attorney-client relationship is formed, ABA MRPC 1.8(b) requires that the lawyer not use or reveal information learned in the consultation with a prospective client.

Comment [2] to rule 1.18 provides:

“Not all persons who communicate information to a lawyer are entitled to protection under this Rule. A person who communicates information unilaterally to a lawyer, without any reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship is not a ‘prospective client’ within the meaning of paragraph (a).”

In the instant circumstances, the unilateral communication of information by Vicky is without a reasonable expectation that Lana would be willing to discuss the possibility of forming an attorney-client relationship. The mere fact that a lawyer lists an e-mail address on a State Bar membership web site is not a statement or implication that he or she is available to form an attorney-client relationship with any inquirer. Thus, Vicky’s communication would create no duties under ABA MRPC 1.18(b), had that rule been adopted in California.

4. Public Policy Reasons Supporting this Opinion

After a review of these authorities, the Committee concludes that Vicky Victim had no reasonable expectation that her unsolicited e-mail to Lana Lawyer would be confidential because it was not in the context of a consultation in which Lana had any ability to stop, give disclaimers or run a conflict check. Merely maintaining an e-mail address for public viewing is not a representation or conduct of a lawyer that should induce a reasonable expectation that the lawyer is available to be consulted unilaterally and would maintain the confidentiality of any information transmitted unilaterally under these circumstances.

The listing of e-mail addresses on the State Bar membership record website has salutary public policy purposes such as facilitating and encouraging contacts between lawyers, members of other professions and facilitating court and State Bar contact, where appropriate. Lawyers should not fear that by placing an e-mail address on the State Bar membership record that they will be inviting any member of the public to send them, unilaterally, unsolicited information which may create duties of confidentiality.

We have taken into account that innocent individuals may send e-mail messages to attorneys seeking legal services and which contain information about their legal matters, which is not treated as confidential by the recipient attorneys. We observe that prospective clients have other and safer means of ensuring that an attorney is available for professional employment or does not otherwise have a conflict of interest including, sending an unsolicited e-mail inquiring about the attorney’s status, telephoning the attorney’s office to either speak with the attorney or to determine the attorney’s availability for retention. Short of education of consumers of education, there seems to be no means of warning prospective clients about this potential pitfall.

On the other hand, if the mere sending of an unsolicited e-mail seeking legal services to an attorney were to trigger a duty of confidentiality, this would create unmanageable risk for attorneys. Such a rule would give unilateral and unfettered control to non-lawyer senders of e-mail to trigger lawyers’ duties of confidentiality. Not only does this create the potential for non-lawyer abuse and “tactical tricks” but also gives the innocent prospective consumer of legal services a means of disrupting existing attorney-client relationships by creating conflicts of interest. Such a result would equally punish innocent clients of attorneys who happened to be adversaries of the e-mail sender and innocent attorneys who did nothing more than have a published e-mail address and read their e-mail. Moreover, given the current state of technology, there is no means for lawyers to provide disclaimers before the sending of an unsolicited e-mail in order to manage the risk.

For all of the foregoing reasons, we conclude that private information received from a non-client via an unsolicited e-mail is not required to be held as confidential by the lawyer, where the lawyer has not had an opportunity to warn or stop the flow of non-client information at or before the communication is delivered.


3. Does CRPC 3-310(E) Prohibit the Representation of Henry Adverse to Vicky or Vicky Adverse to Henry?

CRPC 3-310(E) prohibits, without the informed written consent of the client or former client, the acceptance of employment adverse to the client or former client where, by reason of the representation of the client or former client, the member has obtained confidential information material to the employment.

Although neither Vicky or Henry are current clients, the provisions of the rule 3-310(E) can apply to confidential information received prior to retention. (See Marriage of Zimmerman (1993) 16 Cal.App.4th 556, 20 Cal.Rptr. 132.)

Under the facts, it is likely that Vicky and Harry will be adverse parties, since the police report suggests that Vicky was the driver of the car that Harry alleges caused him injury. However, since the information contained in Vicky’s e-mail is not confidential within the meaning of Evidence Code section 951, rule 3-310(E) does not, standing alone, prohibit Lana from accepting Harry as a client.

On the other hand, Lana would be precluded from representing Vicky. Since she accepted Henry’s invitation to consult about his personal injury matter in contemplation of providing legal services and since Lana received confidential information from Henry pursuant to that consultation, Henry had a reasonable expectation that any information transmitted by him would be confidential pursuant to Evidence Code section 951. Lana therefore owes a duty of confidentiality to Henry. (Cal Formal Opn. No. 2003-161.) Pursuant to rule 3-310(E), Lana may not accept adverse representation on behalf of Vicky against Henry, since the consultation with Henry relates to the same legal matter as Vicky’s representation.


4. Use of Information Contained in Initial Unsolicited E-Mails Seeking Legal Consultation

In order to accept the Henry’s representation, Lana must be able to discharge the duties of an attorney in carrying out his representation.

An attorney has a duty to keep a client reasonably informed about significant developments relating to the employment or representation. (CRPC 3-500; Bus. & Prof. C., §6068(m); see also ABA MRPC 1.4.)

Vicky’s admission that she had had “a few drinks” prior to the accident which injured Henry is relevant and material to Henry’s case and therefore constitute a “significant” development which must be communicated to Henry. Moreover, since form interrogatories for auto accident cases ask whether the driver had had any alcohol prior to the accident, Lana must be able to conduct discovery on that issue to competently represent Henry. (See CRPC 3-110(A).)

We believe that under these circumstances, Lana can use the information received from Vicky for Henry’s representation. If we were to suggest otherwise, Lana would be unable to represent Henry because she would be unable to discharge her duties to Henry. Even if she accepted Henry’s representation with the understanding that she would not use Vicky’s information, her representation would be compromised.

Such a result disadvantages the innocent Henry, who would be deprived of his choice of counsel or who would receive compromised counsel. It also disadvantages Lana, who did nothing more than have an e-mail address and read her e-mail. If Henry were an existing client at the time that Vicky sent her unsolicited e-mail, whether by design or innocense, Vicky would be able to control and interfere with an existing attorney-client relationship.

For all of the foregoing reasons, we believe that if an unsolicited e-mail transmitting information about an adverse party is not confidential, an attorney should be permitted to utilize that information for the lawful purposes of representing an existing client.


Disclaimer: This opinion was issued by the Legal Ethics Committee of the San Diego County Bar Association. It is advisory only and is not binding upon any member of the SDCBA, any other member of the State Bar of California, the State Bar of California or its Board of Governors, or any persons or tribunals charged with regulatory responsibilities. This opinion does not constitute legal counsel or advice. The SDCBA, its officers, directors, agents, and the Legal Ethics Committee members assume no responsibility or liability in rendering this opinion.

DISSENT

I respectfully dissent from the well-crafted majority opinion for two main reasons. First, the California Supreme Court case of People v. Gionis has been misread by the majority in this opinion and COPRAC in their opinion which is relied upon in part by the majority. Second, the public policy reasons articulated for refusing to ascribe confidentiality to an unsolicited e-mail if it complies with Evidence Code section 951 is profoundly weak in light of the counterbalancing consideration. That consideration is that a person would presume a solicitation of legal advice even if unsolicited would be kept confidential by an attorney.

The largest concern I discern is that in the hypothetical posited by the majority opinion, Vicky Victim admits to a potential serious crime i.e. driving while under the influence which caused an accident in which there were injuries. Under this opinion, despite the fact that Ms. Victim obtained the Lana Lawyer’s e-mail address from the State Bar web site and sought legal advice from an attorney in what Ms. Victim would expect to be confidential manner, the prosecutor could arguably obtain this information from Ms. Lawyer and use it in the prosecution of Ms. Victim. I believe the expectation of the average consumer would be that their correspondence to Ms. Lawyer would be confidential and privileged. This is an objectively reasonable expectation.

The majority opinion fails in two fundamental ways. First, both the majority opinion and the COPRAC opinion of 2005-168 relied upon by the majority misread the People v. Gionis (1995) 9 Cal.4th 1196, 892 P.2d 1199, 40 Cal.Rptr.2d 456 case which is only nearly on point. Contrary to the majority and COPRAC opinions, the Gionis opinion cannot stand for the proposition that a attorney “must have some opportunity to decline a consultation”. This is addressed more fully below.

Second, the only public policy basis for the majority decision is that it creates an “unmanageable risk for attorneys,” because it gives “control to non-lawyer senders of e-mail to trigger lawyers’ duties of confidentiality.” Since attorney/client privilege and confidentiality of the communications are for the benefit of the client the perceived “unmanageable risk” must be borne by the attorney and not placed on the client. As stated in Barton, “[i]t is their (the client’s) privilege, not any right of the lawyers, that is at stake.” Id. at 1110 (parenthetical added). See also the dissent in the Arizona State Bar Ethics Opinion 02-04 at footnote 5 of the majority opinion, expressing the more consumer friendly view that the allocation of risk is placed on the attorney, not the client or putative client.

The underpinning of both the majority and the COPRAC opinion is the California Supreme Court’s decision in Gionis. The majority opinion correctly states the holding of the case: “attorney-client privilege does not extend to disclosures made after the attorney refuses to undertake representation since a person could have no reasonable expectation of being represented by an attorney.” But where the majority and the COPRAC opinion err is when they extend the Supreme Court holding to include the notion “the lawyer must have some opportunity to decline a consultation.” The majority extends Gionis even further stating “an attorney will not owe a duty of confidentiality to the speaker if the attorney . . . has not evidenced, by his prior words or conduct, a willingness to engage in a confidential consultation with the individual” The Gionis opinion does not extend its holding that far and in fact, would likely find such an extension antithetical to its analysis.

The Gionis holding is very narrow. The Court begins by stating: "[W]here a person seeks the assistance of an attorney with a view to employing him professionally, any information acquired by the attorney is privileged whether or not actual employment results." (People v. Canfield (1974) 12 Cal.3d 699, 705 [117 Cal.Rptr. 81, 527 P.2d 633]; People v. Dorrance (1944) 65 Cal.App.2d 125, 129 [150 P.2d 10]; Estate of Dupont (1943) 60 Cal.App.2d 276, 288-289 [140 P.2d 866].)”

But, the court reversed the Court of Appeal’s holding that attorney/client privilege applies “whenever issues touching upon legal matters are discussed with an attorney,” believing this was too broad a statement. Id. 9 Cal. 4th at 1210. The Supreme Court stated that has never been the law. Id. The Court distinguished the cases relied upon by the Court of Appeals. For example, the Court distinguished People v. Canfield, supra, 12 Cal.3d at pp. 704-705 stating this case was not one “in which an individual disclosed information while exploring the possibility of retaining the lawyer.” Gionis, supra at 1210. The Court stated “the record here demonstrates that defendant was told in no uncertain terms, prior to making any of the challenged communications, that Lueck wanted no involvement in the legal proceedings concerning defendant and Wayne. The instant case thus finds no parallel in those decisions.” Id. Thus, the Gionis case must be held to only be applicable when there is the express communication to the person providing the information that the lawyer was not acting in a legal capacity.

Thus, given the lack of support from Gionis for either the majority opinion or the COPRAC opinion one must accept the plain reading of Evidence Code section 951 in the context of the hypothetical which the majority concedes has been met. It is only through a contorted parsing of the term “consult” that the majority attempt to swing the opinion to the benefit of the lawyers supposedly victimized by unsolicited e-mails.

This brings us to the crux of the matter. Who needs the protection: the attorney or the putative client in this scenario? The majority and COPRA opinions allocate the risk and shift expectation analysis from the client to the attorney. I would err on the side of the consumer and find that there is a reasonable expectation of confidentiality on behalf of the consumer sending an e-mail to an attorney with the information necessary to seek legal advice.