Confidentiality of Unsolicted E-Mail Messages

Is an Unsolicited E-Mail From a Prospective Client “Confidential?”

Here is the scenario: You're a lawyer and you have a website with some biographical information and description of the areas of practice in which you engage and the typical legal services you provide. You also post on the web site your e-mail address. A person sends you an e-mail saying that they need a lawyer because they were involved in an automobile accident. They also admit that they were drinking before getting behind the wheel and want advice about the legal issues. You open and read this e-mail, but then realize that you are representing a guest passenger that may have a claim against the driver that sent you the e-mail. Do you have a duty to keep the e-mail confidential or can you share the information with your client? Do you now have a conflict and must terminate the representation of the passenger, because you have received confidential information from the driver that you are ethically prohibited from using? Would it be wise to add a disclaimer or warning on the website that persons should not include confidential information if they send an unsolicited e-mail, or that any information sent via an unsolicited e-mail may not be kept confidential?

A number of state bar associations have issued opinions struggling with these issues. One bar legal ethics opinion holds that in the absence of an effective disclaimer, a lawyer who receives unsolicited information from a prospective client through an e-mail link on a law firm website must hold the information in confidence, even if the lawyer declines the representation. Massachusetts Bar Opinion 2007-01. The opinion also addresses whether the lawyer’s firm can represent a party adverse to that prospective client. Another bar's legal ethics opinion advises that a lawyer who provides web site visitors a means for electronic communication may effectively disclaim owing a duty of confidentiality to web-site visitors only the lawyer’s disclaimer is in sufficiently plain terms to defeat the visitors’ reasonable belief that the lawyer is consulting confidentially with the visitor. Simply having a visitor agree that an “attorney-client relationship” or “confidential relationship” is not formed would not defeat a visitor’s reasonable understanding that the information submitted to the lawyer on the lawyer’s web site is subject to confidentiality. California State Bar Standing Comm. on Professional Responsibility and Conduct, Formal, Op. 2005-168.

I think it is reasonable to conclude that an unsolicited email sent to you and possibly several other attorneys, asking if you are interested in representing the sender, would not by itself create an attorney-client relationship. In that case, however, would the information contained in the unsolicited email be considered disclosed or released by the sender and not subject to attorney-client confidentiality? I think these are two separate issues and the fact that there is no attorney-client relationship does not answer the question as to whether the information contained in the e-mail must be kept confidential under Rule 1.6. Pre-retention communications by persons seeking a lawyer have typically been regarded as confidential even if no legal representation ensues. As the Preamble to the Rules of Professional Conduct states in pertinent part:

“Most of the duties flowing from the client-lawyer relationship attach only after the client has requested the lawyer to render legal services and the lawyer has agreed to do so. But there are some duties, such as that of confidentiality under Rule 1.6, that may attach when the lawyer agrees to consider whether a client-lawyer relationship shall be established.”

But what conduct on the part of the lawyer demonstrates that he or she has agreed “to considering whether a client-lawyer relationship shall be established?” Is this test met simply by virtue of the lawyer maintaining a web site in which persons may communicate with the lawyer via e-mail? Does a lawyer, by placing his or her phone number in the Yellow Pages Directory “agree to consider whether a client-lawyer relationship shall be established?”

It is well-settled that communications with a lawyer in which a person is seeking that lawyer’s assistance are protected as confidential, even if the lawyer does not agree to represent that person. All that is necessary is that the person has a reasonable expectation of confidentiality in regard to the communication with the lawyer. However, when a lawyer is unaware of the person’s communication, as in the case of an unsolicited e-mail, is the person’s expectation of confidentiality reasonable?

The answer seems self-evident until you consider this scenario. Mayor X calls a law firm and cannot get through to a lawyer so he leaves a message on the firm’s voice mail: “Hello, this is Mayor X and I need an appointment to see a lawyer right away. I just shot and killed my wife!” In this situation, no one in the firm is aware that the City Mayor has communicated with the firm. No one has invited this communication. Yet, most lawyers would conclude that they could not disclose this information outside the law firm and would be subject to bar discipline for doing so. So, perhaps there is a reasonable expectation that this information is confidential. Whether the information is conveyed via e-mail or by telephone makes no difference in the analysis. Both communications would be “unsolicited” but nonetheless treated as confidential. Thus, the analysis turns not on whether the communication was “unsolicited” but whether, under the particular circumstances, there is a reasonable expectation of confidentiality. Moreover, application of this test should be applied liberally in furtherance of the policy that supports privileged and confidential communications—to encourage a person to seek assistance of counsel and instill confidence that their communications will not be used to that person’s disadvantage.

The State Bar of Arizona's Committee on the Rules of Professional Conduct issued a recent opinion (No. 02-04) that addressed this issue directly. The majority of the Committee on the Rules of Professional Conduct determined that the receipt of an unsolicited email by an attorney did not result in an attorney-client relationship. The committee also concluded that the attorney did not have an obligation to maintain client confidentiality based upon the receipt of the unsolicited email and could disclose the information to the existing client.

In finding that a subjective test was applied by the Arizona Supreme Court to determine whether an attorney-client relationship existed, the committee acknowledged that Arizona courts "have considered the following factors: (1) the would-be client sought and received advice/assistance from a lawyer; (2) the nature of the services rendered; (3) the circumstances under which confidences were divulged; (4) the client's reasonable belief that an attorney-client relationship existed; (5) the client's expectation of confidentiality; and (6) payment of a fee (citations omitted)."

After applying these factors, the committee concluded that the limited personal information revealed through the email did not create an attorney-client relationship that would then require the attorney to maintain confidentiality and not disclose the contents of the email to the attorney's existing client. The committee also analyzed whether the attorney had an obligation to maintain confidentiality based upon duties owed by the attorney to a prospective client. The committee noted that the concept of prospective clients and the use of unsolicited email was an area of significant debate. In fact, part of the committee issued a dissenting opinion on this point. The majority opinion noted that further consideration must be given before determining whether an unsolicited email to an attorney would create an attorney-prospective client relationship and the obligations that stem from that relationship. The committee stated:

"If the attorney simply maintains an email address, then declining to extend certain duties of confidentiality to unsolicited email is consistent with the principles explained above. On the other hand, if the attorney maintains a Web site without any express limitations on forming an attorney-client relation, or disclaimers explaining that information provided or received by would-be clients will not be held confidential, the analysis changes. The absence of express disclaimers suggests that the attorney may have implicitly 'agreed to consider' forming a relation. Under these circumstances, duties of confidentiality may arise. Accordingly, the use of appropriate disclaimers with a Web site may be essential to prevent unsolicited email from being treated as confidential."

The dissenting opinion said that the email contact with the lawyer should be treated as confidential communication, based upon the dissenters' view that the unsolicited email declared the individual's intention to seek to retain an attorney, and such contact, in and of itself, should be held confidential because the prospective client intended that information to be kept confidential. The dissenting committee members concluded that the confidentiality rules prohibited the attorney from communicating the information received from a potential client through an unsolicited email to an already existing client, if that information relates to a claim that the potential client may bring against the already-existing client.

The Committee on Professional and Judicial Ethics of the Association of the Bar of the City of New York, in Formal Opinion 2001-1, came to a somewhat different conclusion. The Committee on Professional Judicial Ethics held that information provided in good faith by a prospective client to a lawyer through an email that was generated in response to an Internet Web site maintained by the lawyer would not disqualify the lawyer from representing a present client in the same matter; however, the information received in an unsolicited email should be held in confidence by the attorney and not disclosed to a present client unless the Web site adequately warns the prospective client that information transmitted to the lawyer will not be treated as confidential. This committee concluded that the receipt of a unilateral, unsolicited communication by a prospective client did not rise to the level of creating an attorney-client relationship so as to preclude the lawyer from representing a present client in the same matter. The committee, however, had more concerns regarding the ability of the lawyer to disclose the information received from the prospective client through the email. The committee stated its concern as follows:

"Thus, in the situation presented here, we believe that prospective clients who approach lawyers in good faith for the purpose of seeking legal advice should not suffer even if they labor under the misapprehension that information unilaterally sent will be kept confidential. Although such a belief may be ill-conceived or even careless, unless the prospective client is specifically and conspicuously warned not to send such information, the information should not be turned against her. Indeed, we see no reason that the other client should be benefited by the fortuitous circumstances that the lawyer approached by the prospective client turned out to be the same lawyer retained by the adverse party. Nor do we believe that zealous advocacy compels a different result. After all, there are many circumstances where a lawyer comes into possession of an adverse party's information and cannot use it. We recognize that this solution may not be a perfect one, and that there exists the possibility that the prospective client could still suffer at least some residual harm from the transmission of confidential information because the bell cannot be unrung and the lawyer cannot unlearn the information. However, the result is no different from other circumstances where an adversary lawyer gains inadvertent access to privileged information such as inadvertently produced privileged material."

The committee went on to suggest the use of a disclaimer to avoid the issue of disclosing confidential information:

"In this connection, in dealing with law firm Web sites, we note that an adequate disclaimer - one that prominently and specifically warns prospective clients not to send any confidential information in response to the Web site because nothing will necessarily be treated as confidential until the prospective client has spoken to an attorney who has completed a conflicts check would vitiate any attorney-client privilege claim with respect to information transmitted in the face of such a warning. If such a disclaimer is employed, and a prospective client insists on sending confidential information to the firm through the Web site, then no protection would apply to that information and the lawyer would be free to use it as she sees fit (footnotes omitted)."

Lawyers need to be cognizant of the potential ethic issues that can arise when they market and advertise their services, including the possibility of receiving an unsolicited e-mail from a prospective client. While an attorney-client relationship may not be created by the receipt of an unsolicited e-mail, the lawyer may nonetheless be required to keep the information confidential. Whether this duty of confidentiality may conflict the lawyer from representing another party will depend on the state's ethics rules and opinions. So far, the ethics opinions seem to conclude that the lawyer is not disqualified from representing another party merely because he or she received an unsolicited e-mail from a legal adversary.

Stay tuned.

How Do You Define Sex?

Remember President Bill Clinton, the Monica Lewinsky scandal, and his deposition testimony that he did not have sex with her because there was no sexual intercourse? Evidently, the Wisconsin Supreme Court agrees. The bar in Wisconsin brought ethics charges against a lawyer which included allegations of misconduct arising out of the lawyer persuading one client to share his girlfriend in a ménage à trois with the lawyer.

In a per curiam opinion, the court ruled that the lawyer's three-way romp did not violate the rule prohibiting sex “with” clients. Although the client was present when the lawyer had sex with the girlfriend, the court said the language of the rule clearly indicates that the prohibited act must involve intimate touching between a lawyer and a client, not just proximity. There was no evidence that such contact occurred here, it said. The Wisconsin rule required the bar to prove that the lawyer had "sexual relations" with the client. The bar's case was not clear as to the client's role in this sexual trist, so that particular charge of misconduct was dismissed.

However, this lawyer was such a crumb bum, that there were other ethics charges that did stick. Those charges included mismangement of client funds, use of cocaine and marijuana with clients, and having another client videotape the lawyer having sex with the client's girlfriend. Yuck!!

Surprisingly, the lawyer only got a three-year suspension for this highly reprehensible conduct. The case is In re Inglimo, Wis., No. 2005AP718-D, 10/18/07.

Justice Denied

Ali Saleh Kahlah al-Marri has been locked up for more than four years without being charged. Yes, amazing but it is true. Al-Marri — a student at Bradley University in Peoria, Ill. — had faced federal charges of credit card fraud, identity theft, and lying to the FBI in a post-9/11 investigation. But those charges were dismissed after Bush signed a one-page executive order in 2003 that declared al-Marri was an “enemy combatant” who must be imprisoned “to prevent him from aiding al Qaeda in its efforts to attack the United States.” The Justice Department has alleged that al-Marri attended an al-Qaida terrorist training camp in the 1990s, received funding from al-Qaida operatives, and had a laptop computer at his Illinois home that contained technical information about cyanide and other poisonous chemicals.

This week, Al-Marri's lawyers challenged the Bush Administration's terroism policy in court in the United States Court of Appeals for the Fourth Circuit, the most conservative of the Courts of Appeals, which has upheld the Bush Administration's postion in prior matters. Al-Marri's arguments likely fell on deaf ears as Judge J. Harvie Wilkinson III said he didn’t understand “all of the hoopla” surrounding al-Marri’s case, given that only a handful of people in the United States have been declared enemy combatants, unlike the roundup of German citizens during World War I and the large-scale internment of Japanese citizens during World War II. “We’re not talking about a dragnet,” he said. “We’re not talking about a sweep.”

Gregory Garre, principal deputy solicitor general for the Justice Department, told the court that both legal U.S. residents and U.S. citizens could be declared “enemy combatants” by the president and that there was no definite time period required for their release. That statement triggered a skeptical response from Judge M. Blane Michael. “You’re going to keep this man in custody for a lifetime. That’s what it looks like,” Michael said. “You don’t have a traditional war [with a definite ending]. You’re in uncharted territory.”

The Bush Adminstration relies on the Authorization for Use of Military Force, passed by Congress shortly after 9/11, which permits indefinite detentions of enemy combatants because the law gave the president the power to use “all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the [9/11] attacks.” The Act would allow the U.S. to detain "enemy combatants" until the cessation of hostilities. Given the nature of the "war on terrorism, Judge Michael may be right that Al-Marri will be detained for the rest of his life!!

Attorney General Gonzales Does Not Use E-mail

The ABA Journal Online reports that US Atty General Gonazales and other top officials like Condolezza Rice do not use e-mail. The article states that White House officials may be concerned because of aggressive prosecutions based upon e-mail. Hmmm. . . . Makes you wonder what they have to hide, especially given the Attorney General's less than candid statements regarding his personal involvement in the firing of the 8 U.S. Attorneys.

You can find the article at http://www.abanet.org/journal/ereport/m30email.html

Well I'm Back

It's been a long time since I posted to this blog. In the interim, my son has joined the Marines and is at boot camp in Paris Island. My daughter is still "E the Intern" at the Saddleback Church in Orange County, CA. My office has finished its move to one floor above our original space.

The ethics issues of the day are as much political as they are ethical. First, is the issue about how the DOJ goes about detaining and trying the prisoners at Guantanamo Bay. We are told that very few of these approximately 285 detainees are actually charged with anything, but many have been in captivity since 2002. Those that are actually charged and to be tried for any offenses have military lawyers appointed to represent them. Two of these military lawyers appointed to defend detainees spoke at the Mid-Year Meeting of the Association for Professional Responsibility Lawyers in February at Miami Beach. They do not have access to the same information the Government has and uses against their client. In fact, the defense lawyers do not have the requisite security clearance to have access to the so-called evidence the Government uses to prosecute their client. The information could be based on second or third-hand hearsay, but there is no way for the defense lawyer to challenge its reliability.

Does this sound like a fair due process hearing? The Bush Administration and the DOJ take the position that the Gitmo detainees are not entitled to the constitutional protections afforded U.S. citizens that are arrested and charged with a crime. The weird irony is that these detainees, most of whom have not been accused of anything, are being held in isolation indefinitely, while persons who have been charged with a crime have more protections even though there is at least probable cause and therefore some evidence that they committted an offense. I am not saying that persons accused of a criminal offense should not have these rights. I am merely saying that persons who are being detained indefinitely without charges pending ought to have some procedural rights.

The second hot issue of the day is the Bush Administration's firing of some 93 United States Attorneys for "underperformance" issues--whatever that means. The extent to which Attorney General Alberto Gonzales and Karl Rove participated in the decisionmaking is unclear at this time. On Tuesday, March 20, the White House is expected to announce whether it will let former White House counsel Harriet Miers, political strategist Karl Rove and other presidential advisers testify before Congress — and whether it will release more documents to lawmakers, including additional e-mails and other items. That decision was to be made on Friday, but the White House asked for more time. The jury is still out on this one, but it will be interested in finding out what truly motivated the dismissals of these prosecutors. Legally, the United States Attorneys serve at the will of the President who holds the power to remove them from office.

So Much Ethics, So Little Time

As I prepare to teach my Ethics class at U of R Law this fall, I realize that 2.0 semester hours is not enough class time to teach this course. I will have to cut out two full chapters on Advertising and Judicial Ethics. Unfortunately, these topics will appear on the Multistate Professional Responsibility Exam (MPRE) and the students will have to study these areas on their own. This course needs to be a 3.0 hour course!!

Teaching Legal Ethics

This is the first post on my blog or blawg (since it will have legalese in it). I think it will help me work out some issues I struggle with in the world of legal ethics. If you are not a lawyer, you will probably find much of what I post here will be useless, unless, of course, you have hired a lawyer and you think your lawyer is not acting ethically. I hope that I will have the time to post often, but we shall see.

I post on this server as bluesburner because in addition to being a lawyer (I am the Ethics Counsel for the Virginia State Bar) I play guitar and sing in a blues/alt country/rock band. We are called the Tin Foil Militia and you can learn more about that at the band's website-

http://www.myspace.com/thetinfoilmilitia

I am employed by the Virginia State Bar, which is an administrative agency of the Supreme Court of Virginia. The bar's website is:

http://www.vsb.org