This past August, the ABA Standing Committee on Ethics and Professional Responsibility issued a formal opinion regarding the use of lawyer websites, ethical obligations of lawyers who maintain websites, and specific cautions/suggestions regarding inquiries invited through lawyer websites.
Last month, when I was in Austin, Texas for the ABA General Practice, Solo and Small Firm Division National Solo and Small Firm Conference, this opinion generated a lot of attention (and perhaps unnecessary fear) after a discussion of ethics for lawyers during the conference.
What lawyers can include on a website
The ABA opinion addresses some of the ethical obligations that lawyers should focus on in considering the content and features of their websites. The opinion specifically acknowledges that lawyers provide information about their firms, individual lawyers, clients and cases. Clearly, the ABA Model rules prohibiting false and misleading statements made by lawyers also apply to lawyer websites, and this does not appear to be one of the areas of major concern for most lawyers.
The opinion also acknowledges the fact that many lawyers and law firms use their websites as a way to provide legal information and to educate the public and/or potential clients about legal issues. Since the internet itself has no boundaries, the opinion wisely cautions lawyers to be mindful of advising web visitors that the legal information provided may be specific to the jurisdiction in which the lawyer practices and may not apply in all jurisdictions.
Disclaimers
The opinion goes on to state that “it would be prudent to avoid any misunderstanding by warning visitors that the legal information provided is general and should not be relied on as legal advice, and by explaining that legal advice cannot be given without full consideration of all relevant information relating to the visitor’s individual situation.” Again, these precautions are to be expected, and should be included in any lawyer's website.
Inquiries or email messages
It is the area of inquiries from a website visitor that seemed to cause the most concern for attendees at the NSSFC last month. The ethical issues that may arise with regard to any such inquiry are:
- Whether an attorney-client relationship might be created as a result of such an inquiry
- Whether a lawyer has an obligation to keep information contained in such an inquiry confidential, and
- Whether such inquiries give rise to conflicts that would preclude the lawyer from representing an adverse party in the matter if the web visitor does not retain the lawyer
Model Rule 1.18 (Duties to Prospective Clients) protects the confidentiality of prospective client communications. The rule also lays out ways in which lawyers may limit their potential disqualification from a matter in the future.
The opinion notes that there is a difference between when a lawyer’s website “specifically requests or invites submission of information concerning the possibility of forming a client-lawyer relationship with respect to a matter” and one which simply provides contact information such as email address, phone number and links to a particular lawyer.
A second factor to consider is how the request or invitation is framed, and how the lawyer responds to inquiries received.
Warnings and disclaimers about inquiries
A site which:
Cautions the web visitor against providing specific details, personal or sensitive information in the inquiry
or
Seeks only limited information
and
Warns the web visitor that such inquiries do not create an attorney-client relationship
Cautions that submission of such information does not guarantee that it will be kept confidential
Advises that information on the site does not constitute legal advice and
Indicates that submission of inquiries through the site will not prevent the lawyer from representing an adverse party in the matter
may serve to limit the lawyer (or law firm)’s obligation to a web visitor.
Lawyers must act in accordance with the disclaimer
Lawyers should take note, however, that the above disclaimers and limitations will have no effect if the lawyer subsequently acts in a manner which conflicts with these warnings and disclaimers (for example by seeking additional information prior to conducting a conflicts check).
The opinion is one which should be read by all lawyers, regardless of their jurisdiction, as many jurisdictions use the ABA Model Rules as the basis for their own state jurisdictional rules and ethics opinions.
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