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How to Avoid Conflicts with Individual Attorney E-mail Hyperlinks

How to Avoid Conflicts with Individual Attorney E-mail HyperlinksWebsites, every business needs one, and lawyers are no exception. Websites are in wide use within the legal profession and for good reason. After all, who takes the time to pick up the yellow pages anymore? Many homes have even opted out of receiving the yellow pages all together, ours included. Prospective clients routinely search out lawyers on the internet and visit their websites. And for business development and marketing reasons lawyers want prospective clients to be able to contact them directly. As lawyers, however, we need to be aware of the potential risks a web presence can create that can lead to problems down the road. One common misstep that we repeatedly see is the posting of individual attorney e-mail hyperlinks on a firm’s website without effective disclaimers. Caution is in order.

Here is the concern. To a prospective client searching for a lawyer, a law firm’s website can easily be perceived as manifesting the intent to form an attorney-client relationship via e-mail. When someone acting on this offer sends an e-mail to the firm or an individual lawyer, is this person now treated as a prospective client thereby triggering confidentiality and conflict concerns? Ethical opinions have said yes to this question.

Many jurisdictions have adopted some version of ABA model Rule 1.18 Duties to Prospective Clients which provides lawyers with guidance regarding their duties to prospective clients including receipt of confidential information and potential conflicts. While there are a number of issues that should be addressed when receiving information from or meeting with prospective clients, one of the first lines of defense is having an appropriate disclaimer on your website. Let’s focus on disclaimers. 

Many firms simply place a disclaimer on their website’s homepage and often hide it behind a disclaimer hyperlink. This is a passive approach to the problem. While we can’t speak for you, we typically don’t take the time to look for and read buried disclaimers when we’re on the Internet. Our point is that almost no one does. Making matters worse, we have viewed website “terms of use” disclaimers that are so long, convoluted, one-sided, and full of mind-numbing legalese that the disclaimer has in all likelihood become entirely ineffective. In short, we would suggest that there is no enforceable agreement with these things. Yes, reasonable minds may see this issue differently. We just don’t want you to be a test case. If you take the passive approach, treat unsolicited e-mail as coming from a prospective client. This means that even if no attorney/client relationship is created post receipt you are well advised to treat the information shared as confidential regardless of what your disclaimer states. Also, be aware that you and your firm may have a conflict problem if you already represent the opposing party or are ever contacted by the other side.

One alternative is to take a more proactive approach and require an affirmative assent to your disclaimer before allowing for the transmission of an e-mail to you. Basically, the idea is to force the prospective client to “click” on an acceptance of the terms of your disclaimer. Now at least it is possible to avoid an unintended disqualification based upon the receipt of e-mail from a prospective client. The confidentiality and conflict concerns play out differently as there should be an enforceable agreement.

The approach that we prefer is this. Once a visitor to a website clicks on an individual attorney email hyperlink, a small box appears with a statement along the lines of “Please Read before Sending.” Post a short and concise disclaimer within this box and require that a visitor click on an “I Accept” or a “Cancel” link before continuing. The “I Accept” link will allow the visitor to proceed with the sending of an email to an attorney. The “Cancel” link will terminate the e-mail attempt. 

Three important points should be made in your disclaimer. First, it should state in the disclaimer that communicating with an attorney via e-mail will not create an attorney/client relationship. Second, it should caution the sender not to provide the lawyer with confidential information and, if they do, said information may not be protected. Finally, it should indicate that any information sent by a prospective client via e-mail, even in a good faith effort to retain the firm, will not preclude the firm from representing another client directly adverse to the prospective client even in a matter where that information could, and very well may be, used against them. The goal is to be able to document informed consent to a waiver of a future conflict. (Several sample disclaimers appear below.)

If this proactive approach is a stretch for your IT budget or capabilities, there is another way to avoid the conflict problem. Simply stop posting individual attorney email hyperlinks on the web. In their place, begin using a generic firm email address that becomes the firm’s email drop box. It might be along the lines of inquiry@firm.com. Under this scenario, staff processes all incoming mail, both paper and virtual. Should a potential client confidence be shared with a staff person, this person can often be effectively screened from that matter if a conflict is in play or evolves down the road. Training will be key with this approach, however. Staff will need to know how to recognize the potential problem and also know what to do with the information so that the confidence is never shared with any attorney at the firm.

In sum, we certainly can appreciate the business decision behind placing individual attorney e-mail hyperlinks on a firm website. Just think through the issues first. There is a difference between a receiving a cold call and receiving an e-mail from a prospective client. With a phone call, an attorney can remain in control of the conversation and prevent the prospective caller from sharing information that the attorney does not wish to hear. With an e-mail, once opened, information from the entire communication is considered received. That’s the bottom line and that reality has ramifications if left unaddressed.

Click Through Website Contact Disclaimer Resource

NOTE: This material is intended as only an example, which you may use in developing your own form. It is not considered legal advice and as always, you will need to do your own research to make your own conclusions with regard to the laws and ethical opinions of your jurisdiction. In no event will ALPS be liable for any direct, indirect, or consequential damages resulting from the use of this material.

Sample 1:

Please Read Before Sending E-Mail. Please note that any communication with (Firm Name) via e-mail through this website does not constitute or create an attorney-client relationship with (Firm Name). Please do not send any confidential information. A conflicts-of-interest procedure must be completed by (Firm Name) prior to establishment of an attorney-client relationship. When you execute an engagement letter from the (Firm Name) you will be our client, and you may then exchange information freely with your attorney.

By clicking “Accept,” you agree that we may review any information you transmit to us. You recognize 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.

Accept

 

Decline

 

 

Sample 2:

Before sending your email to us, please note and understand the following: 

This website provides general information about (Firm Name), its practice areas and professional staff. It is not intended to provide you with legal advice with respect to a matter that you may have.

Until such time as (Firm Name) has resolved all potential conflicts of interest in accepting your representation and has agreed to be engaged as your legal counsel, you are not represented by(Firm Name) or any of its attorneys and have not become a client of the Firm.

Sending this email or otherwise contacting (Firm Name) does not create an attorney-client relationship. By sending information to us, you are not creating an attorney-client relationship, and no disclosure by you before this firm agrees to represent you will prohibit this firm from representing any person or entity adverse to you.

Only if and when (Firm Name) has confirmed to you that it is willing and able to represent you should you send the Firm any information or documents that you consider private or confidential. Such information will not be treated as private, confidential, or otherwise protected from disclosure until (Firm Name) has confirmed that it is able and willing to represent you.

If you choose to ignore this warning and submit any information that you believe or otherwise assert to be confidential or privileged, then by clicking on the “Accept” button, you agree that your submission will not preclude (Firm Name) from representing a client in a matter adverse to you where that information could be used against you.

Accept

 

Cancel

 

 

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