General Practice, Solo & Small Firm Division

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Practice Area Newsletter

American Bar Association - Defending Liberty, Pursuing Justice

WINTER 2011

Vol. 7, No. 2

 

PRACTICE MANAGEMENT

 

New ABA Ethics Opinion Helps Lawyers Understand Pitfalls of Attorney Websites

By Todd C. Scott

A recently published ABA ethics opinion provides attorneys with a much-needed guide on the best ways to avoid accidentally establishing an attorney-client relationship with readers of a law firm’s website. ABA Formal Opinion 10-457, a first-of-its kind ethics opinion on attorney internet websites, identifies the different types of web users that visit an attorney website, and provides lawyers with an understanding of the various professional duties owed to each type of web visitor.

Attorneys that actively promote their legal services through the use of websites have been wary of the potential for inadvertently establishing an attorney-client relationship with visitors to the site. The issue is sometimes put to the test when website visitors send legal questions to lawyers at the firm—often lawyers whom they have never met—through the website’s Contact Us page. One question that has always been troubling is, “If a lawyer invites the general public to tell them about their legal concerns, does that attorney have any professional obligations to that web visitor once they take them up on that offer?”

ABA Formal Opinion 10-457 is more instructional than ground breaking, since it follows the tenets of ABA Model Rule 7.1 Attorney Advertising closely. That is, it is a reminder that detailed information about lawyers and their legal services is acceptable for publication so long as the information is not false and misleading. However, the bulk of the Opinion serves as a much-needed guide for lawyers with websites by labeling the types of visitors who use the site and addressing the potential for a lawyer to owe certain professional duties to the visitors, depending on their status.

Know Your Web Visitors: Readers, Prospective Clients, and Clients

Lawyers have long offered legal information to the public in a variety of ways and, according to ABA Formal Opinion 10-457, offering the information on the firm’s website does not automatically convert a web reader into a client of the firm. General information about the law in a narrative or FAQs (frequently asked questions) format is permissible, but the information must meet the requirements of ABA Rules 7.1, 8.4(c), and 4.1(a), by being accurate and current, and that it does not materially mislead a reasonable reader. To avoid any misunderstandings, the website should include disclaimers that remind the reader that you are publishing general information about the law, and reading the information included on the website does not constitute the formation of a client-lawyer relationship.

A lawyer does not owe any specific professional or ethical duty to a reader of the firm’s website, other than to get it right when offering general legal information. However, the ethical responsibilities owed by a lawyer to an individual can change very quickly if a reader of the firm’s website becomes a prospective client.

The concern about website visitors becoming prospective clients comes from an understanding of ABA Model Rule 1.18 Duties to Prospective Clients. Rule 1.18 protects the confidentiality of communications an attorney may have had with those who never hired the firm, but may have discussed the possibility of forming a client-lawyer relationship. Rule 1.18 was created with an understanding that certain information that is passed from a prospective client to a lawyer during the process can be damaging in the hands of the wrong party. Therefore, Rule 1.18(b) prohibits use or disclosure of information learned during such a discussion absent the prospective client’s informed consent. Rule 1.18(c) disqualifies lawyers and their law firms who have received information that “could be significantly harmful” to the prospective client from representing others with adverse interests in the same or substantially related matters.

According to ABA Formal Opinion 10-457, here is one way to convert a reader of your website into a prospective client, thus invoking the duties and responsibilities owed under Rule 1.18—you invite them. The opinion notes that lawyers have the ability on their websites to control features and content so as to invite, encourage, limit, or discourage the flow of information to and from website visitors. ABA Formal Opinion 10-457 states that, “By specifically inviting submissions of information concerning the possibility of forming a client-lawyer relationship with respect to a legal matter, a discussion, as that term is used in 1.18, will result when a website visitor submits the requested information.”

Inviting readers to submit information about their legal matter likely will invoke the Rule 1.18 duties owed to prospective clients, but even if you don’t invite readers to do so, what you do after unsolicited information from a web reader is received may still unintentionally give the reader the status of a prospective client. ABA Formal Opinion 10-457 goes on to say, “If a website visitor submits information to a site that does not specifically request or invite this, the lawyer’s response to that submission will determine whether a discussion under Rule 1.18 has occurred.” After receiving unsolicited information from a web reader, a simple reply to the sender indicating you have received their information and you plan to review it for the purposes of determining whether a client-lawyer relationship can be formed would likely convert the inquiry into a “discussion” under Rule 1.18.

 Attorney websites come in all forms. It is a combination of the tools available within the website and the content surrounding them that plays a large role in converting a web reader into a prospective client. A particular website might facilitate a very direct and almost immediate bilateral communication in response to marketing information about a specific lawyer. It might, for example, specifically encourage a website visitor to submit a personal inquiry about a proposed representation on a conveniently-provided website electronic form. The availability of those tools and the invitation that comes with it is the basis of a discussion between a prospective client and a lawyer as soon as the prospective client uses it. However, a website that describes the work of a law firm, lists only contact information, or provides an email link to a lawyer does not create a reasonable expectation that the lawyer is willing to discuss a client-lawyer relationship.

The Accidental Client

Providing legal advice to anyone, whether or not they have agreed to pay you for your legal opinion will automatically form a lawyer-client relationship between you and the person on the receiving end of the advice. Thus, you are responsible for the accuracy of the advice, and you must be mindful of the other aspects of their legal matter that could bring harm to your unintended client. Most lawyers learn this soon after becoming a licensed practitioner and are given the example of a friend who asks you for legal advice in a grocery store.

In the context of legal websites, lawyers who publish fact-specific questions from readers, along with the lawyer’s answers, may be characterized as providing personal legal advice. The person submitting the question could reasonably believe that the lawyer was responding to their personal legal matter and rely on what they believe to be the lawyer’s sound legal advice. Lawyers who conduct radio shows on legal topics, or who take questions during speeches to the general public, are usually mindful of the dangers in addressing fact-specific questions in order to avoid creating an unintended client-lawyer relationship.

Website Q&As should be avoided at all costs. Answers to questions about general legal principles or hypothetical situations can be addressed in a way where it is apparent that the lawyer is not offering legal advice, but it should be accompanied with a statement that the information is general in nature and should not be understood as a substitute for personal legal advice. It is important that lawyers take reasonable steps to avoid any misunderstandings with the readers of their website. Disclaimers or warnings are especially useful for website visitors who may be inexperienced in using legal services and who may believe that they can rely on general legal information to solve their specific problem. An individual who is inexperienced with legal matters may not understand that legal advice cannot be given without full consideration of all relevant information relating to the visitor’s individual situation.

Advice for Your Internet Website

The key to avoiding unintended client or prospective client relationships with the visitors to your legal website is to limit the avenues for direct communication with web readers. Web tools that invite the reader to submit their personal information open the door for a web reader to become a prospective client. That may be exactly what the firm intended by creating the Contact Us submission form, but keep in mind the duties the firm owes to prospective clients when you choose to do so. Also, by publishing statements that inform the reader that the information on the website is general in nature and that no personal legal advice has been provided to the reader, you can avoid a troubling misunderstanding. The disclaimer statements should be placed in key spots on the attorney website where they can be seen by all who choose to request further information from the firm—such as a Contact Us page with form fields.

When creating disclaimer statements for your legal website, keep in mind some of the issues you may want to consider including to avoid any misunderstandings by the web reader:

  • A statement that legal advice has not been offered.
  • A statement that a client-lawyer relationship has not been formed.
  • A statement that the visitor’s information may not be kept confidential.
  • A statement that the visitor’s information may not prevent the lawyer from representing an adverse party.

Remember, a disclaimer may be undercut if you act contrary to the warnings contained within it. If you’ve taken the time to formulate a disclaimer statement for your website, all communication with readers who contact you through your website should be consistent with the disclaimer. This is especially true if the firm’s website automatically generates an email response to anyone submitting a web inquiry to the firm. The email response should contain the same website disclaimer and only confirm that the information was received.

For a copy of ABA Formal Opinion 10-457 by the American Bar Association’s Standing Committee on Ethics and Professional Responsibility, click here.

Todd C. Scott is the practice management advisor at Minnesota Lawyers Mutual Insurance Company and can be reached at tscott@mlmins.com or through the MLM blog at www.attorneysatrisk.com.

© Copyright 2011, American Bar Association.