Vol. 76, No. 5, May 2003

Email Contact May Impose Restrictions

by Dean R. Dietrich

Question

I frequently receive emails from individuals seeking an attorney to represent them. Most of these emails are sent to several attorneys, and the sender provides general information about her possible lawsuit. Sometimes the email contains information about a possible claim against a client I represent. May I contact my client to advise him or her of this situation?

Answer

Whether or not you can contact your client to advise him or her of the information contained in an unsolicited email will depend upon whether an attorney-client relationship is established between yourself and the sender of the email. You also may be precluded from representing your current client depending on the information in the email.

Determining the attorney-client relationship. The existence of an attorney-client relationship is not clearly defined and will depend upon the exact circumstances under which you receive the email. In most cases, it is reasonable to conclude that an unsolicited email sent to you and several other attorneys, asking if you are interested in representing the sender, would not create an attorney-client relationship. In that case, the information contained in the unsolicited email would be considered disclosed or released by the sender and not subject to attorney-client confidentiality under SCR 20:1.6. The exact circumstances surrounding the receipt of the email will, however, govern whether or not an attorney-client relationship exists. If you have made it clear in your Web site advertisement that you are soliciting clients or are interested in representing clients in similar matters, you may have invited the email contact from the prospective client and thereby would be considered as having entered into an attorney-client relationship with the prospective client who contacts you by email. If you have placed a disclaimer on your Web site that unsolicited email communication with an attorney does not create an attorney-client relationship, you are in a far better position to conclude that no such relationship is created, and that you may therefore represent your current client in any lawsuit brought by this prospective client.

In those instances when the email is sent to you personally or to a limited number of recipients, a closer question arises as to whether an attorney-client relationship has been created, which would then require that you not disclose the information contained in the email to your current client. This circumstance also may create an attorney-client relationship such that you may not represent your current client in any claim brought by the sender of the email, even though you refuse to represent the individual sending the email. A determination of whether you have a conflict of interest would depend upon the degree of information contained in the email sent to you personally or sent to your law firm. Again, the information contained on your Web site regarding unsolicited communication for purposes of seeking representation also would be critical in determining whether an attorney-client relationship was created by the email message.

Arizona ethics committee opinions. The State Bar of Arizona's Committee on the Rules of Professional Conduct issued a recent opinion (No. 02-04) that addressed this issue directly. The majority of the Committee on the Rules of Professional Conduct determined that the receipt of an unsolicited email by an attorney did not result in an attorney-client relationship. The committee also concluded that the attorney did not have an obligation to maintain client confidentiality based upon the receipt of the unsolicited email and could disclose the information to the existing client.

In finding that a subjective test was applied by the Arizona Supreme Court to determine whether an attorney-client relationship existed, the committee acknowledged that Arizona courts "have considered the following factors: (1) the would-be client sought and received advice/assistance from a lawyer; (2) the nature of the services rendered; (3) the circumstances under which confidences were divulged; (4) the client's reasonable belief that an attorney-client relationship existed; (5) the client's expectation of confidentiality; and (6) payment of a fee (citations omitted)."

After applying these factors, the committee concluded that the limited personal information revealed through the email did not create an attorney-client relationship that would then require the attorney to maintain confidentiality and not disclose the contents of the email to the attorney's existing client. The committee also analyzed whether the attorney had an obligation to maintain confidentiality based upon duties owed by the attorney to a prospective client. The committee noted that the concept of prospective clients and the use of unsolicited email was an area of significant debate. In fact, part of the committee issued a dissenting opinion on this point. The majority opinion noted that further consideration must be given before determining whether an unsolicited email to an attorney would create an attorney-prospective client relationship and the obligations that stem from that relationship. The committee stated:

"If the attorney simply maintains an email address, then declining to extend certain duties of confidentiality to unsolicited email is consistent with the principles explained above. On the other hand, if the attorney maintains a Web site 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, the analysis changes. The absence of express disclaimers suggests that the attorney may have implicitly 'agreed to consider' forming a relation. Under these circumstances, duties of confidentiality may arise. Accordingly, the use of appropriate disclaimers with a Web site may be essential to prevent unsolicited email from being treated as confidential."

The dissenting opinion said that the email contact with the lawyer should be treated as confidential communication, based upon the dissenters' view that the unsolicited email declared the individual's intention to seek to retain an attorney, and such contact, in and of itself, should be held confidential because the prospective client intended that information to be kept confidential. The dissenting committee members concluded that the confidentiality rules prohibited the attorney from communicating the information received from a potential client through an unsolicited email to an already existing client, if that information relates to a claim that the potential client may bring against the already-existing client.

New York City ethics committee opinions. The Committee on Professional and Judicial Ethics of the Association of the Bar of the City of New York, in Formal Opinion 2001-1, came to a similar conclusion. The Committee on Professional Judicial Ethics held that information provided in good faith by a prospective client to a lawyer through an email that was generated in response to an Internet Web site maintained by the lawyer would not disqualify the lawyer from representing a present client in the same matter; however, the information received in an unsolicited email should be held in confidence by the attorney and not disclosed to a present client unless the Web site adequately warns the prospective client that information transmitted to the lawyer will not be treated as confidential. This committee concluded that the receipt of a unilateral, unsolicited communication by a prospective client did not rise to the level of creating an attorney-client relationship so as to preclude the lawyer from representing a present client in the same matter. The committee, however, had more concerns regarding the ability of the lawyer to disclose the information received from the prospective client through the email. The committee stated its concern as follows:

"Thus, in the situation presented here, 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. After all, there are many circumstances where a lawyer comes into possession of an adverse party's information and cannot use it. We recognize that this solution may not be a perfect one, and that there exists the possibility that the prospective client could still suffer at least some residual harm from the transmission of confidential information because the bell cannot be unrung and the lawyer cannot unlearn the information. However, the result is no different from other circumstances where an adversary lawyer gains inadvertent access to privileged information such as inadvertently produced privileged material."

The committee went on to suggest the use of a disclaimer to avoid the issue of disclosing confidential information:

"In this connection, in dealing with law firm Web sites, we note that an adequate disclaimer - one that prominently and specifically warns prospective clients not to send any confidential information in response to the Web site because nothing will necessarily be treated as confidential until the prospective client has spoken to an attorney who has completed a conflicts check would vitiate any attorney-client privilege claim with respect to information transmitted in the face of such a warning. If such a disclaimer is employed, and a prospective client insists on sending confidential information to the firm through the Web site, then no protection would apply to that information and the lawyer would be free to use it as she sees fit (footnotes omitted)."

Conclusion

Lawyers must be cautious of information received through email contact by a prospective client. The receipt of an unsolicited email from an individual seeking a lawyer's services may not create an attorney-client relationship unless that unsolicited email is sent only to that individual lawyer. The lawyer receiving the unsolicited email may, however, be obligated to maintain the confidentiality of the information in that email based upon the requirements of SCR 20:1.6 on confidentiality of attorney-client information.

Recent changes to the ABA Model Rules would further support this duty of confidentiality, because proposed Model Rule 1.18 would clearly identify the expectation of confidentiality owed to a prospective client. The Wisconsin Supreme Court has appointed a commission to review Supreme Court Rules Chapter 20 in light of the changes to the ABA Model Rules. Further guidance may be provided to Wisconsin lawyers regarding the duties owed to a prospective client after study of the Model Rule changes.

Wisconsin Lawyer