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.  

Should Your Firm’s Webpage Invite Potential Clients to Send You Information About Potential Matters?
 
It is fairly common for a firm to have some type of “Contact Us” link on its page. This variously takes the form of “Tell Us About Your Case,” “Get Your Free Case Evaluation,” “Write to One of Our Lawyers,” and the like. It appears that this feature is often added without consideration of the ethical concerns it raises. What if you receive information from a prospective client about a matter that would involve a current client as the opposing party? What if, in a matter involving possible cross-claims, a second potential client’s case sounds better than the first potential client’s, but the first potential client has already shared highly confidential information? In order to address these and other possible issues, firms often add a disclaimer—usually at the bottom of the page in small font—such as, “by sharing information with us, you acknowledge that no attorney-client relationship is formed,” “…that we will not keep such information confidential,” or “that we will not have any obligations to you whatsoever.”  Some pages contain the added feature of having the sender first click on an acknowledgement that s/he has read the disclaimer. Somewhat surprisingly, some webpages have no disclaimer at all. It appears that little thought is given to whether such disclaimers will be understood by a non-lawyer, whether the attorney might still have an obligation of confidentiality even if no attorney-client relationship is formed (you often will), or whether even a detailed understandable disclaimer is legally effective. While such a latter disclaimer might save an attorney or firm from a conflict issue and/or disqualification, an affirmative request for information via a webpage potentially raises more risks than it is worth. 
 
The fundamental problem with such features is that the attorney cannot control the flow of information. Normally, if the initial communication is a phone call or in-person meeting, the attorney can immediately ascertain the identity of other persons involved in order to do a conflict check. It is not unusual to be consulted by a potential client only to learn in the first 20 seconds that the intended opposing party is a current client. The conversation must normally end at that point. This kind of control is not possible with email summaries. The potential client will normally share detailed information and might even fail to state who the intended opposing party(ies) are. Although much debate (and possible litigation) might address the effectiveness of disclaimers, there is little debate that controlling the flow of information via telephone or in-person, at least if done properly, avoids much of the risks created by an open invitation to “Tell Us About Your Case” via email. It is this writer’s view that the better practice is to channel information through telephonic and in-person consultants where the attorney can terminate the flow of information, if ethically required to do so.
 
--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.**