VSB Standing Committee on Legal Ethics Seeking Public Comment On Legal Ethics Opinion 1842

Additional Info view draft of LEO 1842 (PDF)

Pursuant to Part Six: Section IV, Paragraph 10(c)(iii) of the Rules of the Supreme Court of Virginia, the Virginia State Bar’s Standing Committee on Legal Ethics (“Committee”) is seeking public comment on proposed advisory Legal Ethics Opinion 1842, Obligations of a Lawyer who Receives Confidential Information via Law Firm Website or Telephone Voicemail.

This opinion addresses the duties owed to a prospective client and the possible resulting disqualification in several situations where a lawyer or law firm receives confidential information via a law firm website or by telephone voicemail.  The Committee looks to Rule 1.6 and The Preamble to the Virginia Rules of Professional Conduct to analyze the issue of client confidentiality when the lawyer agrees to consider whether a client-lawyer relationship has been established upon receipt of confidential information via a law firm website or by telephone voicemail.

The Committee opines, that standing alone, the publication of a telephone number in a yellow pages advertisement cannot reasonably be construed as an invitation by the lawyer or firm to an individual to submit confidential information.  Thus, it would be unreasonable for a person seeking representation to leave the lawyer a voicemail and have an expectation that the information will be maintained as confidential.  The lawyer who receives such information from a prospective client is under no ethical obligation to maintain its confidentiality and further, may use the information in representing an adverse party.  

The Committee further opines that including an e-mail address on a law firm’s website, without more, is not the solicitation of confidential information from a prospective client. The mere inclusion of an e-mail address on a web-page is not an agreement to consider the formation of an attorney-client relationship; rather, the lawyer is simply advertising his or her general availability and how he/she may be reached.  The Committee believes that a lawyer does not owe a duty of confidentiality to a person seeking representation who unilaterally transmits unsolicited confidential information via e-mail to the firm using the lawyer’s e-mail address posted on the firm’s website.  

However, when the lawyer’s website specifically invites a prospective client to submit specific information outlining the factual details of the prospective client’s case in exchange for an evaluation, that lawyer is thereby inviting the formation of an attorney-client relationship for the purpose of providing a case evaluation.  Even if the lawyer ultimately declines representation of a client who submits information in this context, Rule 1.6(a) imposes upon that lawyer a duty of confidentiality with respect to the information received.  Rule 1.6 would also prohibit the lawyer from thereafter using that information to the detriment of the prospective client or from sharing that information with a party whose interests are adverse to her.  Furthermore, because the lawyer is prohibited from using that information, Rule 1.7(a)(2) imposes a material limitation conflict on the lawyer, limiting the lawyer’s ability to represent an adverse party by the duty of confidentiality that is owed the prospective client.  As a result, the lawyer must not only decline the representation of the prospective client but must actually go so far as to withdraw from the representation of an existing client whose interests are adverse to those of the prospective client.

In conclusion, to avoid any inference that an attorney-client relationship has been established or that the information a prospective client provides will be kept confidential, the Committee recommends that a law firm may wish to consider the inclusion of a disclaimer on the website or external voicemail warning the person to not disclose confidential or sensitive information.  

Inspection and Comment

The proposed advisory opinion may be inspected at the office of the Virginia State Bar, 707 East Main Street, Suite 1500, Richmond, Virginia 23219-2800, between the hours of 9:00 a.m. and 4:30 p.m., Monday through Friday.  Copies of the proposed advisory opinion can be obtained from the offices of the Virginia State Bar by contacting the Office of Ethics Counsel at 804-775-0557, or can be found at the Virginia State Bar’s website at http://www.vsb.org.

Any individual, business or other entity may file or submit written comments in support of, or in opposition to, the proposed advisory opinion by filing ten copies with Karen A. Gould, the Executive Director of the Virginia State Bar, not later than September 29, 2008.

Updated: Aug 19, 2008