An article in this week's ABA e-Journal reports on a San Diego County advisory opinion regarding ethical obligations arising from unsolicited email. The opinion deals with the question of whether a lawyer my use information received in an unsolicited email from one party, where the lawyer has already consulted with another party in the case. It also discusses whether the lawyer is precluded from representing either of these individuals as a result of the email.
The opinion addresses a hypothetical situation wherein a lawyer has consulted with a potential cient (PC) about an automobile accident, and received confidential information from PC during that consultation. After the consultation with PC, the lawyer receives an unsolicited email from another person involved in the accident (V). The unsolicited email contains information that could be helpful to PC's case. The opinion determined that the lawyer could represent PC and that she could use the information received from the email from V. The San Diego County Bar Association also found that in the event that the lawyer could not represent PC, the lawyer would be precluded from choosing to represent V.
Notably, the hypothetical specifically noted that the lawyer in question did not have a website or otherwise engage in advertising, and that V had obtained the lawyer's email address from a bar website. The opinion states, in part, that, "[p]rivate information received from a non-client via an unsolicited e-mail is not required to be held as confidential by a lawyer, if the lawyer has not had an opportunity to warn or stop the flow of non-client information at or before the communication is delivered."
Of course, this leaves open the question of an attorney's ethical obligations with regard to information received via email where the individual obtains the lawyer's email address from the lawyer's website or marketing materials. Also left open is the issue of how the lawyer would "warn or stop the flow of non-client information at or before the communication is delivered."
Several law firm websites contain general disclaimers, and some even include 'pop up' disclaimers when an individual clicks on a lawyer's email address. Are these disclaimers enough? What language would be considered sufficient? What if an individual obtained the address from the website, but instead of clicking on the link, re-typed the email address in their email program, thereby bypassing the disclaimer? Could someone seeking to disqualify a lawyer from a particular case intentionally send an email containing arguably confidential information that would preclude the lawyer from representing any parties in the case?
The San Diego County opinion discusses the duty of confidentiality and the nature of the privilege and asks this question: Does the content of V's e-mail, "standing alone, constitute a 'consultation' so that she is deemed a 'client' for attorney-client purposes?" the opinion notes that the attorney must have some opportunity to decline the representation. But one of the factors in determining whether the attorney had an 'opportunity' to decline is whether the attorney has, "evidenced, by his prior words or conduct, a willingness to engage in a confidential consultation with the individual."
Specifically, the opinion states,
A closer question might exist if [the lawyer] had placed an e-mail address at the bottom of a print advertisement for legal services or in a yellow page telephone listing under an “attorney” category, without any disclaimers. In these circumstances, the only inference to be drawn from listing the e-mail address is to invite prospective clients to contact the attorney for legal advice or representation, giving rise to a further inference that private information divulged to the attorney would be confidential.
This language seems to be far too broad. It seems to me that there is or should be a distinction between evidencing a willingness to engage in a confidential conversation with this particular individual as opposed to showing, by the use of marketing materials, websites, etc. that promote the lawyer's services and make the lawyer's email address available, that the lawyer is generally available for consultations.
Based upon the language in this opinion, it would seem that warnings and disclaimers would be required everywhere a lawyer places their email address. What about email addresses on business cards? If the lawyer in question provided their business card, and the card made its way to V, either directly from lawyer at some time prior to the accident, or through V obtaining the card through other means, would the lawyer be precluded from representing both PC and V in that case? Should lawyers be required to note on all of their marketing materials, brochures, articles, etc. that confidentiality is not guaranteed when sending an email to the attorny?
This opinion raises many questions, not all of which are discussed here. And the opinion is based on California law. But all lawyers should take heed of these issues. They may lead to even more restrictions on the ways that lawyers build their businesses.
Restrictions on attorney advertising and communications involving, especially as those restrictions involve technology, are getting out of hand.
I'm not an ethics expert, and I have not read the San Diego County opinion. However, I wonder what the bar would say if a PC revealed confidential information in a letter sent by snail mail, using (1) an address in the lawyer's Yellow Pages ad or (2) an address on a bar association website.
At what point do we say that PCs have a duty to act reasonably, and not spill their guts to people they have never met or spoken to?
Would a doctor-patient relationship be created by an unsolicited communication to a doctor containing confidential medical information? What about an accountant-client relationship arising from a PC revealing confidential financial information in an unsolicited communication?
Posted by: Lisa | November 05, 2006 at 07:10 PM