Legalethics.com

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

In a first, a judge has blasted a lawyer for demeaning blog comments about opposing counsel.

Lawyers who participate in Internet discussion groups should avoid including any confidential information that could be associated with a particular case or controversy. Postings that give identifying details about cases can result in problems such as waiver of work product protection or inadvertent communications with judges involved on a case. Los Angeles Cty. Bar. Ass’n. Professional Resp. and Ethics Comm. Formal Op. 514 (Aug 19, 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.

While an lawyer’s communication with a prospective fee-paying client in the mass disaster victims Internet chat room is not a prohibited solicitation such communication is improper as it is delivered to a prospective client whom the attorney knows may not have the requisite emotional or mental state to make a reasonable judgment about retaining counsel. See COPRAC opinion 2004-166

A lawyer’s Internet website providing to the public information about the lawyer’s availability for professional employment is subject to advertising a “communication” under rule 1-400(A) and an “advertisement” under Business and Professions Code sections 6157 to 6158.3. As such, it is subject to the applicable prohibitions on false, misleading, and deceptive messages. Lawyers also must be aware of the possibility that the web site might be subject to regulation by other jurisdictions or that it might be considered the unauthorized practice of law in other jurisdictions. COPRAC 2001-155.

California ethics opinions are available online.

State Bar Act sections 6150-6156 dealing with unlawful solicitation are available online.

The State Bar offers the California Rules of Professional Conduct. A separate annotated version with commentary is available from the Legal Information Institute.

The California State Bar Association is available online.