Creating Attorney-Client Relationships in the Electronic Age

Vol. 23 No. 3

By

Thomas E. Spahn is a commercial litigation partner in the Tysons Corner, Virginia, office of McGuireWoods LLP. He recently served on the ABA Standing Committee on Ethics and Professional Responsibility.

The ubiquitous use of electronic communications affects nearly every part of our daily lives. Not surprisingly, lawyers’ professional lives have been dramatically altered as well. One good example involves the creation of attorney-client relationships.

All lawyers recognize that they normally must provide prospective clients the same duty of confidentiality as existing clients. Otherwise, prospective clients could never effectively interview lawyers they might hire. Most lawyers discipline themselves, and train their staff, to obtain just enough information during an initial interview or phone call to run a conflicts check. If there are no conflicts, lawyers then invite prospective clients to begin more substantive discussions about the client’s problems, possible wrongdoing, etc. If lawyers fail to check for conflicts before such substantive discussions, they normally will be unable to represent the prospective client’s adversary if the prospective client does not retain them.

The increasing use of electronic communications changes all of this. Many prospective clients now research lawyers on the Internet. Many also send unsolicited e-mails to lawyers they might retain, instead of calling for an initial appointment. Some lawyers might instinctively want to extend the traditional duty of confidentiality to these folks. But if tech-savvy individuals could disqualify every lawyer in town by sending damaging confidential (and thus disqualifying) unsolicited information, the possibility of mischief seems obvious.

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