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Unsolicited Email and Obligations of Confidentiality

Technology

By Jett Hanna

Establishment of an attorney client relationship has always been a difficult issue at the margins.  Texas law holds that a lawyer has a duty to warn a non-client that they are not a client if it is reasonable for the person to assume that they are the client.  Parker v. Carnahan, 772 S.W.2d 151 (Tex. App.-Texarkana 1989, writ denied).  A fact finder can look at all the circumstances and determine if someone reasonably believed they were a client.  This article will discuss when confidential relationships may exist for emails sent by non-clients.

Email Through Website Links

A recent Massachusetts ethics opinion considered whether a lawyer who received unsolicited information through a link on their website must keep the information in confidence.  The opinion concluded that “in the absence of an effective disclaimer, a lawyer who receives unsolicited information from a prospective client through an email link on the law firm’s web site must hold the information in confidence even if the lawyer declines the representation.”  Massachusetts Bar Ethics Opinion 07-10, 2007.  See also Iowa State Bar Ass’n Comm. on Ethics and Practice Guidelines, Op. 07-02 (2007). Creating an effective disclaimer is a first line of defense for law firms.

Web site disclaimers often try to avoid any impression that email communications establish an attorney client relationship, without addressing confidentiality.  The problem with reliance on the disclaimers is that other facts may work against the impression.  Consider a situation where there is a series of emails between an attorney and a potential client.  One email and one response might not in itself create a relationship, but the continued dialog could progress to the point that legal advice is given, or confidential information is shared.

Assuming the potential client sees the disclaimer, is it sufficient?  Consider what California Ethics Opinion 2005-168 has to say about disclaimers. See http://ethics.calbar.ca.gov/LinkClick.aspx?fileticket=Hqf7ODIElk0%3D&tabid=838.

The disclaimer analyzed in the opinion was as follows:

I agree that I am not forming an attorney-client relationship by submitting this question. I also understand that I am not forming a confidential relationship.

This disclaimer was deemed insufficient.

The following disclaimer was accepted by the opinion as sufficient:

I understand and agree that Law Firm will have no duty to keep confidential the information I am now transmitting to Law Firm.

The opinion notes that evidence law makes communications between a non-client and an attorney confidential if the non-client is communicating with the lawyer for the purpose of retaining the lawyer.  Texas Disciplinary Rules of Professional Conduct Section 5.01(a) protects confidentiality of “non-clients” seeking legal services by reference to 5.03 of the Texas Rules of Civil and Criminal Evidence, and 5.01 of the Federal Rules of Evidence.  The California opinion concluded that unless the potential client’s reasonable belief of confidentiality was defeated, then confidentiality would apply.  The opinion requires “a plain language reference that her submission would lack confidentiality.”  Simply saying there will not be a confidential relationship is not enough.

The California opinion suggests that one way to avoid the problem of an unanticipated duty of confidentiality is to solicit information with a form that has fields for minimal information needed to check conflicts.  Also, the California example involved a click through disclaimer which clearly gave the person the right to accept the terms of the disclaimer or to cancel sending information to the law firm.  This has been suggested as a best practice by several sources, including D.C. Bar Opinion 302 (2000), available online at

http://www.dcbar.org/for_lawyers/ethics/legal_ethics/opinions/opinion302.cfm.

David Hricik has a very good article entitled To Whom it May Concern:  Using Disclaimers to Avoid Disqualification by Receipt of Unsolicited Email from Prospective Clients, 16 Professional Lawyer 1 (No. 3, 2005). Professor. Hricik points out that unless there is a click through to show a prospective client’s consent to disclosure of information, no enforceable contract is created as to confidentiality.

Attempting to disclaim confidentiality has a down side.  Consider the website form used in Barton v. United States District Court 410 F.3d 1106 (9th Cir. 2005), available online at

http://caselaw.lp.findlaw.com/data2/circs/9th/0571086p.pdf.

The firm here sought to collect information from potential clients regarding their medical history in connection with use of the drug Paxil.  The drug manufacturers claimed that the information was not confidential because of the manner of its submission from the law firm’s website.  The website had the following disclaimer requiring a check box:

(This questionnaire) does not constitute a request for legal advice and that I am not forming an attorney client relationship by submitting this information.

The lower court found that this was sufficient to waive confidentiality and an attorney client relationship.  The court of appeals, however, found the disclaimer “ambiguous” and reasoned that “the plaintiffs should not be penalized for the law firm’s ambiguity.  It is their privilege, and not any right of the lawyers, that is at stake.”

Emails not coming through Web Links

Web site disclaimers, even if well constructed, have no effect on a potential client who gets the attorney’s email address from another source.  Established clients may give their friends the lawyers’ email address, or it may be obtained in some other way.

Perhaps the most disturbing possibility is that unsolicited emails with confidential information not sent from a website could result in a confidential relationship.  New Hampshire recently amended its rules to specifically protect unsolicited confidential information sent in emails when the sender is engaged in a “good faith search for representation.”   Comment 1 to New Hampshire rule 1.8 states that “(t)his change recognizes that persons frequently initiate contact with an attorney in writing, by e-mail, or in other unilateral forms, and in the process disclose confidential information that warrants protection.”

Ethics opinions in other jurisdictions are in conflict.  The majority in both San Diego County Bar Association Opinion 2006-1, available online at

http://www.sdcba.org/index.cfm?Pg=ethicsopinion06-1 and Arizona State Bar Ethics Opinion No. 02-24, available online at

http://www.myazbar.org/Ethics/opinionview.cfm?id=288,

concluded that making information in unsolicited emails confidential would create an “unmanageable risk” for lawyers.  Dissents in both cases argued for confidentiality.

The hypothetical used in the San Diego County Bar Association illustrates how difficult coming up with a firm rule can be with regard to unsolicited emails.  The opinion assumed that a person involved in a car accident contacted a lawyer by email.  The lawyer’s email address was on the state bar website, not on any website created by the lawyer.  The potential client revealed in the email that she had been drinking at the time of the accident, but that fact had not been discovered.  The lawyer visited with the other driver of the accident before reviewing the email, received confidential information from the other driver, and entered into a fee agreement with the other driver.

The questions posed by the opinion were:

  • Was the emailed information confidential?
  • Can the lawyer still represent the other driver signed to a fee agreement?
  • If so, can the information in the email be used against the first driver?

It seems harsh to punish some one legitimately seeking legal service for not understanding that emailing confidential information might be used against them by the lawyer they approached.  On the other hand, it is possible to understand the potential for abuse.  Indeed, it has been quite common in family law for spouses to consult with some lawyers just to keep them from being able to represent the other spouse.  Some potential clients send emails to a large list of attorneys, destroying any legitimate expectation of confidentiality in the process.

The New York City Bar Association took an approach between the extremes in Arizona and San Diego, finding that the lawyer would not be disqualified but could not use the confidential information from clients legitimately seeking legal services.  See Ass’n of the Bar of the City of New York Comm. on Prof’l and Judicial Ethics, Formal Op. 2001-1 (2001), available online at http://www.abcny.org/Ethics/eth2001-01.html.

It is possible to imagine circumstances where lawyers receiving unsolicited emails would want to argue for confidentiality.  Consider the following scenario.  Suppose that the “prospective client” is a friend of an existing client of the lawyer.  This “friend” puts a little more in the email than they should.  The lawyer reads the email, runs a conflict check, and realizes the firm is representing an adverse party.  Can the lawyer, must the lawyer, give this information to the adverse client if preliminary emails are sought in discovery?

Washington state has adopted a revised version of comments to ABA Model Rule 1.18 that addresses unsolicited emails.  The comment states that “(a) person who communicates information unilaterally to a lawyer, without reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship, is not a ‘prospective client’….”  Washington RPC 1.18, comment 2.  Additionally, comment 10 specifically states that public dissemination of contact information is not itself an invitation to discuss confidential matters with a client. Washington RPC 1.18, comment 10.

Washington State has also issued an ethics opinion which specifically addresses what a law firm can do to protect itself from receiving unwanted confidential communications.  Washington State Bar Ethics Opinion 2008 (2006). The opinion suggests, among other things, that lawyers:

  • Do not solicit communication from prospective clients, especially over a website, email or other communication that allows a client to divulge an excessive amount of information.
  • Limit the amount of information you accept to the bare essentials needed to perform a conflict check.
  • Implement a timely screen for any individual who received confidential information….
  • Implement procedures by which non-lawyer staff receive and review inquiries to screen for conflicts.

Under Texas law, screens of lawyers to avoid imputed disqualification may not be effective, NCNB Texas Nat’l Bank v. Coker, 765 S.W.2d 398, 399-400 (Tex.1989), but screens of non-lawyer staff have been upheld, Phoenix Founders. v. Marshall, 887 S.W.2d 831 (Tex. 1994).

Conclusion

The best approach in the absence of a definitive opinion on confidentiality of unsolicited email is to take steps such as those suggested by the Washington state opinion, and to assume that unsolicited email confidences at least need to be protected.  The lawyer can explain to the client that there is certain information that he cannot use, due to a potential confidentiality issue, and that the client can seek other counsel if this is not acceptable.  If the jurisdiction where the issue arises later decides that the information is not confidential and can be used against the sender, the lawyer should not face a claim for failing to use the information with proper prior disclosure of the issue to the client.  Conversely, if the information is held to be confidential, the lawyer could be disqualified, but could not be liable for a claim of using the information.