The Professional Ethics Committee for the State Bar of Texas has issued an opinion regarding the confidentiality of emails sent by prospective clients. Opinion 651 is a critical opinion for lawyers and law firms which have websites.
The opinion concludes that lawyers are not required to warn prospective clients who use website email links on a law firm’s site that confidential information sent to law firms “will not be treated as confidential and may be used against the person sending the information.” However, the firm and its lawyers are required to treat the information received as confidential in the absence of a warning. This means that the information in the email cannot be used against the prospective client, and that the confidential information could create a conflict of interest.
The opinion endorsed a warning that reads as follows, provided that the prospective client accepts the warning:
Warning: Do not send or include any information in any email generated through this web site if you consider the information confidential or privileged. By submitting information by email or other communication in response to this web site, you agree that the communication does not create a lawyer-client relationship between you and the law firm and its lawyers and that any information submitted is not confidential and is not privileged. You further acknowledge that, unless the law firm subsequently enters into a lawyer-client relationship with you, any information you provide will not be treated as confidential and any such information may be used adversely to you and for the benefit of current or future clients of the law firm.
The opinion does not address what constitutes acceptance of such a warning. Lawyers should consider creating a process where an email link cannot be accessed without a website visitor viewing a warning. Such a warning could be displayed, with a way to accept the warning by a click, upon entry to the site, prior to seeing the email link, or when the link is actually clicked. The third option, display of the warning when the email link is clicked, could be circumvented by simply viewing the email address and not clicking on the link.
A prospective client may obtain the lawyer’s email address from somewhere other than the lawyer’s website, so no warning can be issued. How should confidentiality be treated then? Opinion 651 does not address that issue directly. In a previous article, we noted that opinions in other jurisdictions are split. Both the Arizona and San Diego bars issued opinions with a 2-1 opinion, with the majority deciding that lawyers did not have to treat such information as confidential and in fact had a duty to utilize such information in them, while minority opinions concluded that the information must be kept confidential and that the firm had a conflict based on the information received.
The Iowa bar has noted that a return email inviting a response could result in the creation of a duty of confidentiality. At this time, we recommend that attorneys not read unsolicited emails. If they are read, do not respond to them or permit read receipts unless the information will be treated as confidential. As discussed in our longer article, having non-lawyer personnel screen email may help firms avoid potential disqualification due to information received in unsolicited email.