Ethics Question of the Month December 2023

I Don’t Want to Hear It

Can you use information provided by a prospective client against the person, even if they have been warned not to provide confidential information until an attorney/client relationship has been established?

The Situation

ABC Law Firm is a new firm that focuses exclusively on representing individuals in personal injury and consumer-oriented litigation. The firm’s website includes a solicitation to potential clients to contact the firm’s individual attorneys directly through the website.

To avoid conflicts with existing and future clients, some partners suggest including a warning on the website that a prospective client should not send any confidential or privileged information. The prospective client would have to acknowledge the warning before any information could be sent to an attorney in the firm. They propose the following language:

WARNING: Do not send any information in any email through this website if you consider the information confidential or privileged. By submitting information by email in response to this web site, you agree that the communication does not create a lawyer-client relationship between you and ABC Law Firm and its lawyers and that any information submitted is not confidential or privileged. You further acknowledge that, unless the law firm subsequently enters into a lawyer-client relationship with you, any information you provide will not be treated as confidential and any such information may be used against you and for the benefit of current or future clients of the law firm.

Other ABC lawyers object, saying that this stark and potentially intimidating language might drive prospective clients away, and that, in any event, this information cannot be considered privileged and confidential until an actual attorney/client relationship has been established.

The Question

According to a 2015 Ethics Opinion, what is required of ABC when soliciting emails from potential clients on its website?

The Correct Answer is B Of 190 Responses, 15% are correct.

  1. A 54
  2. B 30
  3. C 86
  4. D 20

The Explanation

Ethics Opinion 561 (2015) considered the issue of whether a warning like the one above is sufficient to allow a law firm to use confidential information received from a prospective client who first acknowledged the warning. The Opinion first notes the duty of confidentiality to clients under Rule 1.05 of the Texas Disciplinary Rules of Professional Conduct and that the various exceptions to that obligation in the Rule do not apply here.

The Opinion then notes that the confidentiality requirement is not necessarily limited to clients, stating that “a lawyer’s duty to protect confidential information of potential clients may exist even if the lawyer ultimately declines the representation” [emphasis added]. It cites paragraph 12 of the Preamble to the Texas Disciplinary Rules of Professional Conduct, which states “there are some duties, such as that of confidentiality, that may attach before a client-lawyer relationship has been established.” It also cites Comment 1 to Rule 1.05, which notes the requirement of lawyers to preserve the confidential information of a person who has “employed or sought to employ the lawyer.” There are, therefore, situations where no attorney/client relationship was created, but it nonetheless “may be reasonable for a prospective client to expect that the information provided to the lawyer will be maintained as confidential.”

While the Opinion is careful to state that the Rules do not require a warning, it does conclude that a warning and acknowledgement similar to the one included here would allow a law firm to utilize any information provided against the party who provided it after acknowledging the warning on the firm’s website. The correct response is B.

Bluebook Citation

I Don’t Want to Hear It: Ethics Question of the Month - December 2023, Texas Center for Legal Ethics (2023), from https://legalethicstexas.com/ethics-question-of-the-month/ethics-question-of-the-month-december-2023/ (last visited May 20, 2024)