Ethics Question of the Month December 2021

Be Careful What You Ask For

What are your obligations when receiving online inquiries that contain confidential information?

The Situation

The XYZ Law Firm is updating its website and wants to add a feature to allow users to directly email the firm’s lawyers through the website. The firm wants to make contacting its lawyers by email as easy as possible but is concerned about clients providing the firm with confidential information that could inadvertently cause the firm to be conflicted out of current or future representations.

Some of the firm’s partners want to include the following statement:

"WARNING: Do not send or include any information you wish to keep confidential in any email generated through this web site. By submitting information by email or other method in response to this web site, you agree that: (1) the communication does not create a lawyer-client relationship between you and the law firm and its lawyers, (2) any information you submit is not confidential or privileged, and (3) any information that you do submit will not be treated by XYZ Firm as confidential unless and until XYZ subsequently agrees to enter into a lawyer-client relationship with you."

These partners also want to include a feature that requires those contacting the firm through the website to specifically acknowledge and agree to this statement before any email information can be submitted.

Other partners think that this warning/waiver is too cumbersome and that it may put off those who are already mistrustful of lawyers and the legal system. They would prefer not to have any statement or acknowledgement because: (1) they believe the chance of an actual conflict arising from a prospective client’s disclosure is very small, and (2) this language might send potential clients to competitors who don’t have such a requirement.

The Question

As the firm assesses its options, which of the following is most accurate? A – Because the firm is inviting the potential client to submit an email on its website, a statement warning the prospective client not to submit confidential information is required under the solicitation rules. B – The proposed statement is not required, but it would permit the firm to utilize any information provided by a prospective client against it if the firm is hired by a party who is adverse to the prospective client. C – The proposed statement is not required, but whether the firm would be conflicted from an adverse representation involving the confidential information would depend on other factors. D – The law firm cannot be conflicted by unsolicited information provided by a potential client unless the website requests specific information beyond a non-client’s identity because doing so would allow non-clients to intentionally create a conflict to prevent an opposing party from hiring that firm.

The Question

As the firm assesses its options, which of the following is most accurate?

A – Because the firm is inviting the potential client to submit an email on its website, a statement warning the prospective client not to submit confidential information is required under the solicitation rules.

B – The proposed statement is not required, but it would permit the firm to utilize any information provided by a prospective client against it if the firm is hired by a party who is adverse to the prospective client.

C – The proposed statement is not required, but whether the firm would be conflicted from an adverse representation involving the confidential information would depend on other factors.

D – The law firm cannot be conflicted by unsolicited information provided by a potential client unless the website requests specific information beyond a non-client’s identity because doing so would allow non-clients to intentionally create a conflict to prevent an opposing party from hiring that firm.

The Correct Answer is B Of 22 Responses, 18% are correct.

The Explanation

Email and the internet have created new hazards for lawyers trying to stay within the bounds of confidentiality and conflicts rules that were written long before anyone could even conceive of these features of the information age. How can lawyers protect themselves in this situation?

In Ethics Opinion 651 (2015), the Committee on Professional Ethics addressed the issue of email warnings by focusing first on Rule 1.05 of the Texas Disciplinary Rules of Professional Conduct, which deals with client confidentiality. That Rule is primarily applicable to situations where an attorney/client relationship has already been established, suggesting that it might not apply here. However, Comment 1 to the Rule contemplates a slightly broader reach by stating that “[b]oth the fiduciary relationship existing between lawyer and client and the proper functioning of the legal system require the preservation by the lawyer of confidential information of one who has employed or sought to employ the lawyer.” (emphasis added).

This position is supported by the Preamble to the Texas Disciplinary Rules of Professional Conduct (Scope, paragraph 12) , which states that “[m]ost of the duties flowing from the client-lawyer relationship attach only after the client has requested the lawyer to render legal services and the lawyer has agreed to do so... But there are some duties, such as of that of confidentiality, that may attach before a client-lawyer relationship has been established.” (Emphasis added).

Because a lawyer may owe a duty of confidentiality to a non-client seeking legal representation, the next question is whether a law firm can use such information with or without a warning of the type described above. Opinion 651 concludes that such a warning is sufficient to permit the firm to use any information received against the potential client. However, failure to include a warning means that a lawyer may be required to keep that information confidential, depending on the circumstances, thereby precluding its use against the potential client.

The best answer is B.

Bluebook Citation

Be Careful What You Ask For: Ethics Question of the Month - December 2021, Texas Center for Legal Ethics (2021), from https://legalethicstexas.com/ethics-question-of-the-month/ethics-question-of-the-month-december-2021/ (last visited Apr 24, 2024)

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Be Careful What You Ask For

The Situation

The Question

The Question

As the firm assesses its options, which of the following is most accurate?

The Correct Answer is B Of 22 Responses, 18% are correct.

The Explanation

Bluebook Citation Copy

Bluebook Citation