The Risk Manager, Fall 2012
Virtually every law practice now has a website. These websites vary in content, but usually include information about the firm and provide website visitors the opportunity to contact the firm or individual lawyers in the firm. These contacts risk the inadvertent creation of duties owed a prospective client or those of a lawyer-client relationship. This in turn can lead to conflicts of interest, bar complaints, and malpractice claims.
Wisconsin Formal Ethics Opinion EF-11-03: Who is a Prospective Client: Lawyer Websites and Unilateral or Unsolicited E-mail Communications (7/ 29/2011) provides a useful review of these risks along with several website disclaimer examples. The key considerations in evaluating website risks as explained in this opinion are:
- A person who sends a unilateral and unsolicited communication has no reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship.
- To avoid creating ethical duties to a person in search of counsel, a lawyer who places advertisements or solicits e-mail communications must take care that these advertisements or solicitations are not interpreted as the lawyer's agreement that a lawyer-client [or prospective client] relationship is created solely by virtue of the person's response and that the person’s response is confidential.
- Lawyers should use website disclaimers that have two separate and clear warnings: that there is no lawyer-client relationship and that the e-mail communications are not confidential. Moreover, these warnings should be short and easily understood by a layperson.
The Appendix to the opinion offers several examples of disclaimer language. Three of these are:
If you are seeking representation, please read the following notice before sending an e-mail to our firm:
Sending us an e-mail will not make you a client of our firm. Until we have agreed to represent you, anything you send us will not be confidential or privileged. Before we can represent you, a lawyer will first take you through our conflict of interest procedure and see that you are put in touch with the lawyer best suited to handle your matter.
If you proceed with an e-mail, you confirm that you have read and understood this notice.
If you send e-mail through this service, your e-mail will not create an attorney-client relationship, and any information you include in your e-mail will not necessarily be treated as privileged or confidential. You should not send sensitive or confidential information through this e-mail service. The firm may not choose to accept you as a client. Moreover, the Internet is not necessarily a secure environment, and it is possible that your e-mail might be intercepted and read by third parties.
Please Read Before Sending E-Mail.
Please note that any communication with us by e-mail through this website does not constitute or create an attorney-client relationship with us. Please do not send any confidential information. A conflicts-of-interest procedure must be completed by us before we can establish an attorney-client relationship with you.
By clicking “Accept/Submit” below, 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.
If you wish to discuss the possibility of potential legal representation, you may request a consultation by e-mail or by calling one of our offices.
Lawyers Mutual’s risk management guidelines for lawyer websites is reflected in the Bench & Bar article “Lawyer Website Disclaimers – Fact or Fiction,” (Vol. 70, No. 1, Jan. 2006):
- Prepare and keep on file a written firm policy on the purpose of the website, what it is supposed to do, and what it is not intended to do. Include detailed guidance on specific features of the site and how they are to function. Specifically, how legal advice, if any, is to be provided through the website. This guidance should include how information is to be displayed that avoids misleading site visitors into believing they are getting legal advice for their matter; how terms and conditions and disclaimers are prominently featured to assure that site visitors assent to them; and how prospective client e-mail is managed to avoid issues of attorney-client relationships, confidentiality, and failure to respond to an e-mail.
- Keep a complete paper and disk copy of each iteration of the website for at least five years. Be sure it reflects how site visitors manifest assent to terms and conditions and disclaimers. Use “click wraps” or “click throughs” that require a site visitor to click on a disclaimer to show affirmatively the visitor’s assent before accessing the website and before information can be sent to the firm. Be sure that the site visitor cannot finesse the click wrap procedure. Click wraps may be appropriate for several of the website pages.
- Be sure that disclaimers are prominently displayed on the home page. While it may be undesirable to pepper the disclaimer notice on every page of the website, that is the percentage way to go. Rulings that have not accepted disclaimers as effective often note their brevity or inconspicuous display on a website. Use click wraps liberally.
- Use letters of non-engagement in response to prospective client e-mails when the firm declines representation. Respond to all e-mails – do not leave a site visitor dangling. Advise site visitors not to consider that their e-mail was received until they receive a confirming e-mail from the lawyer. Save e-mails to disk just as you would file written correspondence from and to potential clients. It is hard to defend against a claim without some record of what occurred.
- Design prospective client information intake procedures so that only the minimum information necessary to perform a conflict of interest check is initially received. Use a click wrap to warn site visitors about sending too much information initially and to protect the firm from a conflict of interest issue if the site visitor does not comply.
- Recognize that a website can be visited from anywhere in the world. Complying with the advertising and unauthorized practice rules of every jurisdiction is impossible. Websites disclaimers should clearly indicate that the lawyer is seeking site visitors only in certain jurisdictions and that the website is inoperative in any jurisdiction that has rules different from those of the lawyer’s jurisdiction. Another way to accomplish this is to accept e-mails only from persons residing in specified zip codes in named jurisdictions. Admittedly, this is flimsy, but it is the best fix available at this stage of development of Internet ethics.
- Links to other websites require disclaimers of responsibility for their content and currency. Links require routine maintenance to assure that they are still operative and relevant.
- The website should not contain links that serve as referrals to other lawyers that a site visitor can unilaterally choose other than bar referral services. Referral to another lawyer is a malpractice risk and should be done only after sufficient information is received to competently evaluate the site visitor’s matter – preferably by telephone or an in-office consultation.
“Lawyer Website Disclaimers – Fact or Fiction?” is available on Lawyers Mutual’s website at lmick.com – click on Resources and go to Bench & Bar Articles.