Visitors to your law firm’s website can quickly form an expectation of privacy and confidentiality, even when the formation of such an attorney-client relationship has not yet been established. To minimize your risk of a malpractice claim, it’s important to understand how to avoid creating confidentiality through your firm’s website.
Law firm websites are designed to be a helpful resource, with many firms sharing information about the firm, its attorneys and ways to contact the company. However, law firm websites are also designed to generate business. As a result, many firm websites include a contact form that includes fields for collecting an individual’s name and contact information, and a brief description of their legal issue, worded similarly to the following examples:
- “Please provide a brief description of your legal issue”
- “Please provide a brief description of your injury”
- “Tell us about your case”
A law firm website may include a disclaimer text, sometimes in very small font, generally denying the formation of any attorney-client relationship and advising the inquirer “not to send any confidential or time sensitive information” through the website. But is such a disclaimer enough to avoid any duty of confidentiality?
Duties of Confidentiality to Prospective Clients
By inviting narrative descriptions, the law firm may be treating website users as prospective clients with an expectation of privacy and confidentiality.
ABA Model Rule 1.8 discusses duties to prospective clients and offers some guidance in determining confidentiality obligations:
“…(b) Even when no client-lawyer relationship ensues, a lawyer who has learned information from a prospective client shall not use or reveal that information, except as Rule 1.9 would permit with respect to information of a former client.”
In accordance with ABA Model Rule 1.18, regardless of whether an attorney-client relationship is formed, a lawyer may still owe a certain level of confidentiality to a prospective client. While individuals visiting a firm’s website are generally not regarded as “prospective clients” under ethical rules, once the firm virtually engages that individual, the analysis becomes more complicated. The comments to ABA Rule 1.18 specifically address the issue as follows:
“[2] A person becomes a prospective client by consulting with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter. Whether communications, including written, oral, or electronic communications, constitute a consultation depends on the circumstances. For example, a consultation is likely to have occurred if a lawyer, either in person or through the lawyer’s advertising in any medium, specifically requests or invites the submission of information about a potential representation without clear and reasonably understandable warnings and cautionary statements that limit the lawyer’s obligations, and a person provides information in response…”
Two aspects are important—a lawyer’s invitation to a website user to submit certain kinds of information and the need for appropriate warnings and cautionary statements to be directed at the website user regarding the information he or she may submit.
Risks of Disqualification for Current Clients
To protect current clients, it is important that the website user understand they are not consulting an attorney in a professional capacity via the website contact form. To minimize confusion, any disclaimer should use clear and reasonably understandable language, for example:
“I understand and agree that Law Firm will have no duty to keep confidential the information I am now transmitting to Law Firm.”
The risk of creating confidentiality can be significant, as it could lead to the firm being disqualified from representing a current client. Disqualification is obviously of great concern to law firms. ABA Rule 1.18 addresses the issue of disqualification, in terms of prospective clients:
“(c) A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful…”
Tips to Avoid Creating Confidentiality
Law firms should never assume that a disclaimer will be effective if the law firm’s actions indicate a willingness to enter into a legal engagement. If your firm does choose to use a contact form with a disclaimer, they should be written in plain language and easily seen.
Consider obtaining the minimum information from the website visitor to conduct a proper conflict check.
By preventing your website from creating confidentiality with website users, you can minimize your risk of a malpractice claim.