Legal Ethics Corner

Ethics Corner is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association for SDCBA members.  

Website “Free Case Evaluations,” Visitor Inquiries, Disclaimers, and Other Problems
 
The latest formal opinion from the American Bar Association’s Center for Professional Responsibility, Formal Opinion 10-457, titled “Lawyer Websites” (here), addresses a number of concerns regarding the use of websites. (Among the many sources cited therein, this opinion also relies upon Opinion 2006-1 of the San Diego County Bar Association Legal Ethics Committee.)  For anyone who has not spent much time considering the ethical issues raised by websites, you would do well to read the entire ABA opinion. The opinion addresses:
 
1) All Information Must be Truthful, Not Misleading, Must Not Omit Relevant Information so as not to be Misleading, and Client Information May Only be Included with Prior Consent. Hopefully, allattorneys are familiar with these requirements under the ABA Model Rules of Professional Conduct. (Although not binding in California, these rules, as well as ABA opinions, provide considerable ethical guidance, and California courts will look to these sources when they do not conflict with the California Rules of Professional Conduct or other California law.) Under ABA Rules 5.1 and 5.3, supervising attorneys have the obligation to make reasonable efforts to ensure that a firm has measures in place to reasonably assure that all firm lawyers and non-lawyer employees comply with these rules. Thus, managerial lawyers cannot simply assign control of a firm’s webpage to the firm’s internal or out-sourced marketing personnel and forget about it. More generally, the webpage must be updated on a regular basis to remove information of attorneys who are no longer with the firm as well as representative clients who the firm no longer represents. Inclusion of client information may only be included with the client’s prior consent. While some states allow such consent to be oral, there is considerable authority for the proposition that the client’s consent should be in writing because disclosure of such representation on a webpage is not in furtherance of the client’s representation; instead, it is part of the lawyer’s self-promotion.
 
2) Information About the Law. As with an article an attorney might write or a seminar s/he might present, information about the law itself must, of course, be accurate so as not to materially mislead the website visitor. Such information should always have a clearly worded disclaimer that it is general legal information, should not be relied upon as legal advice, and that no legal advice can be given without consideration of a particular individual’s situation.
 
3) Visitor Inquiries and the Possible Obligations They Create. Many a firm webpage have them: free case evaluation forms. Even many that do not nonetheless contain an express statement to the effect of, “tell me about your case/matter.” Such invitations to begin what is in essence a “discussion” of the potential client’s matter, as this term is defined under Model Rule 1.18, is important because such a discussion can create the obligation to keep information confidential even though an attorney-client relationship might not later be formed. This is pivotal because an attorney’s obligation to keep such information confidential precludes later disclosure and use, absent the potential client’s informed consent, and could also result in disqualification if use of such information would be prejudicial to that potential client. By contrast, that a website contains the lawyer’s name, address, phone number, and email, is normally not considered sufficient, by itself, to create a reasonable expectation that the attorney is willing to discuss a particular matter. Even here, however, if the attorney responds to an unsolicited inquiry so as to consider representation, e.g., by asking for more information, the duty of confidentiality likely attaches. Regardless of how information is exchanged, the best way to minimize these concerns is to include a meaningful disclaimer.
 
4) Welcome to Disclaimerville. “Warnings or cautionary statements on a lawyer’s website can be designed to and may effectively limit, condition, or disclaim a lawyer’s obligation to a website reader.” (Formal Opinion 10-457, p.5.) Nonetheless, for such a disclaimer/warning to potentially be effective, it should be written so that a reasonable person would understand there is no attorney-client relationship being formed, that the website visitor’s information will not be kept confidential, that legal advice is not being given, and that the lawyer will not be precluded from representing an adverse party. As with unsolicited information, addressed above, if the attorney responds inconsistently with the disclaimer, such as by actually giving legal advice, it will likely be deemed ineffective. Simply informing the website visitor that “there is no attorney-client relationship” normally does not prevent the duty of confidentiality from attaching because this duty applies independently of whether an attorney-client relationship is ultimately formed. In sum, a clearly worded, detailed, and conspicuous disclaimer containing the above information is best designed to avoid the possibility of unwittingly triggering obligations the attorney does not mean to assume.
 
--Luis E. Ventura
 
**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**