A 2010 New Hampshire legal ethics opinion (LEO) crystalized the issue, ironically using a term that now seems decades out of date: “Before the advent of the information superhighway, law firms had an easier time controlling the flow of potentially disqualifying information. Initial interviews with prospective clients were conducted in person or over the phone. Lawyers could more easily set the ground rules.” New Hampshire LEO 2009-2010/1 (6/2010).
So what was our profession to do? Starting in 2001, the New York City Bar started a nearly unbroken string of legal ethics opinions finding that an unsolicited electronic communication from prospective clients does not trigger lawyers’ duties of confidentiality or loyalty. New York City LEO 2001-1 (3/2001). For prospective clients’ e-mails linked from a law firm’s website, the New York City Bar explained that a law firm website disclaimer that “prominently and specifically warns prospective clients not to send any confidential information in response to the website” would “vitiate any attorney-client privilege claim with respect to information transmitted in the face of such a warning.” Id. The bar also held that a firm receiving such an unsolicited e-mail would not be disqualified from representing the adversary because the e-mail would not create any duty of loyalty.
Since 2001, only one bar has taken a slightly less lawyer-friendly approach. In 2007, the Massachusetts Bar held that law firms could rely on this advantageous principle for prospective clients sending e-mails by linking to the firm’s website only if the firm included a “pop-up” disclaimer on its website requiring prospective clients to affirmatively disclaim any confidentiality expectations. Massachusetts LEO 07-01 (5/23/2007). Since then, every other state bar has instead followed New York City’s lead.
The majority view relies on or parallels ABA Model Rule 1.18(a), which extends lawyers’ confidentiality duties only to a “prospective client,” defined until recently as someone who “discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter.” In other words, prospective clients deserve confidentiality only if they and lawyers engage in a dialogue.
ABA Model Rule 1.18(a) used the term “discusses.” But that term normally refers to an “oral” dialogue, which is increasingly rare in the electronic age. In August 2012, the ABA House of Delegates adopted the ABA 20/20 Commission’s recommendation to change that word to “consults.” The ABA also added some comment language confirming that the required “consultation does not occur if a person provides information to a lawyer in response to advertising that merely describes the lawyer’s education, experience, areas of practice, and contact information, or provides legal information of general interest.” ABA Model Rule 1.18 cmt. .
ABA Model Rule 1.18 has other provisions that protect lawyers from the threat of disqualification by prospective clients who interview the lawyer in good faith but decide to hire someone else—or from a devious adversary who might deliberately try to set up the lawyer’s disqualification. Under ABA Model Rule 1.18(c), an individual lawyer who is not retained by a “prospective client” (under the narrow definition discussed above) may represent the adversary, unless the individual lawyer “received information from the prospective client that could be significantly harmful to that person in the matter.” And under ABA Model Rule 1.18(d)(2), other lawyers in the same firm can represent the adversary if (1) the individually disqualified lawyer “took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client”; (2) the individually disqualified lawyer is screened from the matter; and (3) the law firm provides written notice to the prospective client.
None of these elaborate provisions apply if someone sends an unsolicited e-mail to a lawyer, even if it contains significantly harmful information. Under the ABA Model Rules, a lawyer receiving such an e-mail does not owe any duty of confidentiality or loyalty to the sender.
Some lawyers acknowledge that folks sending unsolicited e-mails to lawyers might justifiably expect at least some degree of confidentiality. But the possibility of mischief seems to have trumped such a concern. This example of the legal profession’s efforts to reconcile traditional ethics principles and new forms of communication highlights the latter’s dramatic effect on nearly everything lawyers do.