|To Whom it May Concern: Using Disclaimers to Avoid Disqualification by Receipt of Unsolicited E-mail from Prospective Clients
Not too long ago, a person who wanted to hire a lawyer had to call him on the phone or stop by to see him. In that initial interview, the lawyer had to make sure that undertaking the representation would not create a conflict of interest with an existing or former client. Many states hold that a person who discloses confidential information to a law firm in a good faith effort to hire it can disqualify that firm to the same extent as if it had retained it.1
To avoid disqualification, the lawyer in the initial interview must control disclosure of information by the prospective client so that the lawyer learns only that information from the prospective client necessary to check conflicts. A lawyer who is talking to a prospective client can control the disclosure: before hearing information that might disqualify the lawyer from continuing to represent a client, for example, the lawyer can ask the prospective client who the adverse party will be, inquire as to the general nature of the matter, and perform a conflicts check.
Some firms took these measures a step further. What they sought to do was to have the prospective client agree, before any information was disclosed, that the firm would not be disqualified from representing another client – in a matter adverse to that prospective client concerning the contemplated representation and even if the firm received confidential information from the prospective client. Similarly, some firms have a practice of requiring prospective clients to agree in writing before any face-to-face meeting that only the lawyers who actually receive information from the prospective client, rather than the entire firm, will be disqualified from being adverse to the prospective client if the firm is not retained.2
In the digital age, there is less control over receipt of confidences, and greater opportunity for them to be received by firms. A web page listing lawyer e-mail addresses allows a putative client to send an e-mail to a lawyer that discloses important confidential information that could lead to disqualification of the firm. For example, a person could read a law firm web site and conclude that the firm would be an excellent choice to represent her. She could then send the firm an e-mail explaining the case, and discussing its potential strengths and weaknesses, and asking for a meeting. If a law firm can be disqualified because it received information from a prospective client during a face-to-face meeting or phone call, can it likewise be disqualified if it reviews the same information sent by e-mail from a client seeking in good faith to hire the firm?
As one commentator posited:
Suppose an online visitor submits an inquiry to an attorney along with the requisite information, and, before responding, the attorney determines that a partner or other member of the firm already represents the opposing party. The attorney is now in receipt of information that could create an impermissible conflict such that the online visitor making the inquiry can attempt to force a withdrawal of representation of opposing party.3
This scenario actually occurred in California: a woman seeking to hire a divorce lawyer filled out a questionnaire with some confidential information about her case and sent it to a firm that happened to be already representing her husband in that matter.4
These website disclaimers appear designed to avoid disqualification by receipt of information from prospective clients. Read literally, they would prevent for example, a woman who sent an e-mail to a firm in good faith in an effort to hire the firm from later arguing in a motion to disqualify that, because the information was confidential, the firm is disqualified from being adverse to her in any matter where that information could be used against her.
For practical reasons, existence of a law firm web site increases the need for disclaimers. Having a website gives any person connected to the Internet the easy means to transmit unsolicited information to law firms, which can be done unilaterally and even contrary to the intent of the lawyer. A lawyer who receives an unsolicited telephone call can simply stop the prospective client from disclosing additional information as soon as the lawyer recognises a conflict exists. However, an e-mail is sent instantaneously, and opened in full at once.
A. Are These Website Disclaimers Legally Necessary?
The need for advance agreements arose in the context of old-world contacts, by face-to-face meeting or telephone call. In those situations there is mutual assent to the exchange of information. In addition, by continuing the conversation, a lawyer who continues a phone call accepts the prospective client’s invitation to consider forming an attorney-client relationship. In contrast, has a lawyer who merely opens an unsolicited e-mail done something to indicate to its sender that the lawyer desires to represent that person?7 Should an e-mail sent unilaterally by a prospective client through a law firm website be treated any differently than a phone call placed to a lawyer, or a meeting held between lawyer and prospective client? Is e-mail different from these “old-world” forms of communication such that a different rule applies, and so these advance waivers are unnecessary?
This may depend on whether by putting up the website the lawyer has manifested an intent to offer to form attorney-client relationships or to keep information confidential. The Arizona Bar Association concluded that a lawyer who did not have a website, but had an e-mail address, did not implicitly invite submission of information by prospective clients. According to the committee, such lawyers owed no duty of confidentiality to prospective clients, since the absence of a website indicated no willingness to accept clients by e-mail.8
On the other hand, the Arizona opinion reasoned that “if the attorney maintains a website without any express limitations on forming an attorney-client relation, or disclaimers explaining that information provided or received by would-be clients will not be held confidential,” then the lawyer has implicitly agreed to consider forming an attorney-client relationship with those who transmit e-mail.9 The Association of the Bar of the City of New York reached a similar conclusion.10 As part of a lengthy analysis, it reasoned:
We believe that prospective clients who approach lawyers in good faith for the purpose of seeking legal advice should not suffer even if they labor under the misapprehension that information unilaterally sent will be kept confidential. Although such a belief may be ill-conceived or even careless, unless the prospective client is specifically and conspicuously warned not to send such information, the information should not be turned against her. Indeed, we see no reason that the other client should be benefited by the fortuitous circumstances that the lawyer approached by the prospective client turned out to be the same lawyer retained by the adverse party. Nor do we believe that zealous advocacy compels a different result.11
A California opinion reached essentially the same conclusions. There, a firm had links that allowed perspective clients to submit information in order to learn their rights. The committee concluded that this was evidence of another offer to consult with the lawyer.12
Thus, lawyers in California, Arizona, and New York who have websites need both to effectively disclaim any intention to form an attorney-client relationship and to effectively warn prospective clients of the lack of confidentiality of transmitted information.13
Where is the assent by the prospective client? The courts in addressing web-contracts are holding that terms which are merely somewhere on a website are not part of a contract formed by a website user. Instead, only terms that are affirmatively “clicked” and agreed to are part of the agreement. In Specht v. Netscape Communications Corp.,15 an arbitration clause was on Netscape’s website on a page of “user terms,” but a user was not required to “click” acceptance to the arbitration clause before downloading software. Instead, the arbitration clause was merely on the site, and the site asked the user to “please review” those terms and conditions. Thus, the Specht case presented the question of whether a user of a website was bound by a term of use that was merely present on the site, but that the user was not required to read and affirmatively assent to in order to download the software.16
Following the approach of other courts, the Netscape court held that there was no proof that the user had assented to the arbitration clause; hence, there was no agreement to arbitrate. The courts recognize that where the user affirmatively “clicks” agreement to the term – so-called “click wrap” agreement – the term could be enforced, but rejected the attempt to create “browser wrap” agreements – binding users of a site merely because they opened it in their browser.17
C. Choose Language Carefully
The language in a potential disclaimer must be chosen with the utmost care. It should accomplish the goal of avoiding disqualification but not create other problems.
Some law firm websites have disclaimers that say that any information transmitted prior to the written agreement of the firm to represent the transmitting party will not be held in confidence. While no doubt a prospective client who agrees to such terms would be precluded from disqualifying the recipient, such language may go too far. Suppose, for example, that the firm decides after receiving an unsolicited disclosure of key information to represent the sender as a client. May the client claim privilege over that communication in the dispute? In most jurisdictions, the answer would ostensibly be “no” since the client when it transmitted the information knew it would not be held in confidence.18 In this regard, a California opinion holds that only if the client expressly agrees that information that is submitted will not be held in confidence can the firm avoid an obligation of confidentiality.19 There, the bar association concluded that even a clicked agreement that “no confidential relationship would be formed” was insufficient to constitute an acknowledgement that the firm would not keep the prospective client’s information confidential. The bar concluded that it would be sufficient if the disclaimer had said: “I understand and agree that Law Firm will have no duty to keep confidential the information I am now transmitting to Law Firm.”20
The California opinion dealt with possible disqualification of the law firm. The use of law firm website disclaimers may also impact the attorney-client privilege. In a recent case, the Ninth Circuit held that a plaintiff could claim privilege over information it submitted through a law firm site even though when it submitted the information it acknowledged it was not creating an attorney-client relationship.21 It held the information could still be claimed as privileged because the client had never agreed the information would not be held confidential and the privilege does apply to preliminary consultations.
The California opinion holds that it is not enough to avoid disqualification if a firm received information with only a “no attorney-client relationship” disclaimer. But, if the firm uses a “no confidentiality” approach, then it likely cannot claim privilege if the prospective client becomes an actual client of the firm. Thus, “no attorney-client relationship” disclaimers fail to avoid disqualification, and “no confidences” disclaimers deny prospective clients the ability to claim privilege if the firm later represents the prospective client.
In my view, neither disclaimer is the right one. The approach of Model Rule 1.18 is instructive. It does not state that there is no attorney-client relationship, or that the information will not be held in confidence. Instead, it provides that receipt of the information by the firm will not preclude it from representing another party in the matter. The principle endorsed by the rule is important. It allows firms to continue represent a client in a matter adverse to a prospective client, but does not permit the firm to misuse confidential information submitted to the firm in good faith. Objections to that approach have less force than objections to an approach that ostensibly lets the firm disclose to its client critical information that had been disclosed by a prospective client who had in good faith submitted it to the firm.
Model Language to Adapt to Your Jurisdiction and Practice
Any contract term should do what it needs to do, but no more. An agreement by which an unsophisticated party supposedly gives up all right of confidentiality to information that it submitted in good faith to the firm tries to do too much. Likewise, an agreement that might destroy the ability of a prospective client who eventually becomes a client to claim privilege over information previously disclosed to a firm, does more than it should. A reasonable goal is to avoid imputed disqualification, not permit actual adverse use of information that is submitted in good faith by a prospective client.
Law firms should adopt language that does what they want it to do: that is, prevent even those who in good faith seek to hire the firm from disqualifying an entire firm through imputation from representing another party. The following examples of language seek in varying degrees to balance the legitimate but competing needs of the firm and its clients, as well as those of prospective clients.
By clicking “accept” you agree that our review of the information contained in e-mail and any attachments that you submit in a good faith effort to retain us will not preclude any lawyer in our firm from representing a party in any matter where that information is relevant, even if that information is highly confidential and could be used against you, unless that lawyer has actual knowledge of the content of the e-mail. We will otherwise maintain the confidentiality of your information.
The foregoing seeks to eliminate firm-wide disqualification. While doing so, it could still result in the disqualification of an individual lawyer from a matter. Another approach:
By clicking “accept”, you agree that we may review any information you transmit to us. You recognise that our review of your information, even if it is highly confidential and even if it is transmitted in a good faith effort to retain us, does not preclude us from representing another client directly adverse to you, even in a matter where that information could and will be used against you.22