11
Jul
2011
A lawyer who is mistakenly copied on an e-mail between opposing counsel and their client, must notify the sender and consult with the lawyer’s own client in deciding whether and how to use the information. Penn. Bar. Ass’n. Comm on Legal ethics and Professional Responsibility Op. 2011-10 (03/2/2011)
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Categories : Confidentiality, Attorney-client relationship, E-mail, Attorney-client privilege, Pennsylvania, Ethics Opinions
1
Dec
2010
The article with links to the proposal are here. To avoid getting any Kentucky readers in trouble, please don’t blog about this! 
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Categories : Advertising, Attorney-client relationship, Discussion Groups, Internet Use, Computer Use, Kentucky, Rules of Conduct, Bar Association, Discipline, Social Networking
12
Sep
2008
Nat’l Economic Research Assocs., Inc. v. Evans, LECG Corp., 21 Mass. L. Rptr. 337 (Mass. Super. Ct. Aug. 3, 2006) is a fascinating case in various ways, and just came to my attention. Apparently, when a user views mail on yahoo, it takes a screenshot of the mail which is stored on the hard drive. While it’s not as easy to later access as a temp file, apparently they reside on the hard drive. I couldn’t find the opinion on line, but it was on westlaw.
Anyone who uses public computers or employer-owned laptops to communicate “in confidence” should examine this issue. I’m not sure it’s accurate, but the court clearly stated that Yahoo, alone, left these ghost emails!
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Categories : Meta-data, Confidentiality, Electronic Files, e-Discovery, Attorney-client relationship, E-mail, Attorney-client privilege, Privacy, Ethics Opinions, Massachusetts
27
Aug
2008
In Formal Opinion 2008-1 (July 2008), the Committee on Professional and Judicial Ethics of the Association of the Bar of the City of New York addressed various issues concerning the organization, delivery, and the ability to charge clients for delivery of electronic files after the end of a representation. An earlier Wisconsin opinion on the same subject is here.
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Categories : Electronic Files, e-Discovery, Attorney-client relationship, E-mail, Computer Use, New York, Ethics Opinions, Bar Association
20
Feb
2008
Effective January 1, 2008, New Hampshire adopted a rule that clearly protects persons who, in good faith, e-mail confidential information to a lawyer from having the lawyer use the information against the prospective client. The comments to New Hampshshire Rule 1.18 provide in part: “In its version of these provisions, New Hampshire’s rule eliminates the terminology of ‘discussion’ or ‘consultation’ and extends the protections of the rule to persons who, in a good faith search for representation, provide information unilaterally to a lawyer who subsequently receives and reviews the information. This change recognizes that persons frequently initiate contact with an attorney in writing, by e-mail, or in other unilateral forms, and in the process disclose confidential information that warrants protection.”
The rule no doubt makes it more important for NH lawyersto use effective disclaimers on their web pages.
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Categories : Confidentiality, Websites, Attorney-client relationship, Disclaimers, E-mail, New Hampshire, Internet Use, Computer Use, Attorney-client privilege, Conflicts, Rules of Conduct
7
Jun
2007
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.
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Categories : Confidentiality, Websites, Attorney-client relationship, Disclaimers, Conflicts, Massachusetts
4
Aug
2006
North Carolina 2005 Formal Ethics Opinion 10 (January 20, 2006) discusses the ethical considerations of a virtual law practice and unbundled legal serivces.
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Categories : Confidentiality, Websites, Advertising, Attorney-client relationship, UPL, Conflicts, North Carolina
2
Jun
2006
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
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Categories : Confidentiality, Websites, Attorney-client relationship, California
8
Jun
2005
The Ninth Circuit has issued a decision which analyzes the impact of disclaimers on law firm websites which purport to deny formation of an attorney client relationship to those who submit information through forms on law firm web sites. The Ninth Circuit permitted a plaintiff who had submitted information to a firm while disclaiming creation of any attorney-client relationship to claim privilege over it. In contrast, a recent Interim opinion from California suggests that lawyers can avoid creating a confidential relationship only by specifically denying any obligation of confidentiality in order to avoid disqualification by a prospective client using the firm’s website. The same conclusions were reached a few months earlier in Nevada Formal Ethics Opinion No. 32 (March 25, 2005). Taken together, the opinions suggest that denying confidentiality is necessary to avoid disqualification, but doing so will preclude the person who submits the information from claiming privilege over it. Professor Hricik suggests some model language that avoids these issues.
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Categories : Confidentiality, Websites, Attorney-client relationship, California, Disclaimers, Attorney-client privilege
14
Apr
2004
Maryland lawyers may not surreptitiously take client files or delete client records from a law firm comptuer system, even if the lawyer fears that the firm wil interfere with the clients’ representation. See Maryland Attorney Grievance Comm’n v. Potter, Md., Misc. Docket AG No. 92 (Mar. 9, 2004).
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Categories : Confidentiality, Electronic Files, Maryland, Attorney-client relationship, Computer Use
28
Dec
2002
A lawyer does not owe a duty of confidentiality to an individual who unilaterally e-mails an unsolicited inquiry to a lawyer. The sender does not have a reasonable expectation of confidentiality in such situations. Law firm websites, with attorney e-mail addresses, however, should include disclaimers regarding whether or not e-mail communications from prospective clients will be treated as confidential See Arizona State Bar Opinion 02-04
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Categories : Confidentiality, Websites, Attorney-client relationship, Disclaimers, E-mail, Arizona
4
Mar
2002
New Mexico Opinion 2001-1 addresses the application of Rules of Professional Conduct to Lawyer’s Use of
Listserve-type Message Boards and Communications.
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Categories : Confidentiality, Advertising, Attorney-client relationship, Disclaimers, Discussion Groups, UPL, New Mexico
2
Jun
2001
Lawyers who receives an unsolicited communication from a prospective client may represent another client in the same matter against the prospective client. Ass’n of Bar of City of New York Opinion 2001-1. (March 2001). Where the web site does not adequately warn that information transmitted to the lawyer or firm will not be treated as confidential, the information should be held in confidence by the lawyer receiving the communication and not disclosed to or used for the benefit of the other client even though the lawyer declines to represent the potential client.
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Categories : Confidentiality, Websites, Attorney-client relationship, E-mail, New York, Conflicts
17
May
2001
By providing the opportunity to contact a law firm by e-mail through a website, law firms exposes themselves to certain risks. Opinion 20000179 (2000) (see also Opinion 20000103). Law firms can reduce these risks with a disclaimer, but they cannot avoid them. These risks include the establishment of an attorney-client relationship and conflicts.
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Categories : Websites, Advertising, Attorney-client relationship, Missouri, Conflicts
15
Jan
2001
Lawyer websites are “advertising” within the meaning of the Vermont Rules of Professional Conduct. Opinion 2000-04. Lawyers must comply with the applicable requirements of Rules 7.1 and 7.2 concerning accuracy and record-keeping. Unless the information on the Web site is directed to persons or groups whom the lawyer knows to be in need of legal services and with whom the lawyer does not have a family or prior professional relationship, the Web pages need not include the words “Advertising Material” otherwise required by Rule 7.3(c). It is advisable for the lawyer to use carefully worded disclosures and disclaimers to clarify the purposes and value of the information on the Web site and in the lawyer’s e-mail responses to questions generated by the Web site. However, the use of disclaimers will not necessarily preclude the formation of a lawyer-client relationship and its attendant ethical responsibilities, “in” particular circumstances.
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Categories : Websites, Advertising, Attorney-client relationship, Disclaimers, E-mail, Vermont
