Website, Blog Answers, Case Record Compilations

Many attorneys have a website where a potential client may make a request.  The law firm should have a system to do a conflict check before answering the email of that potential client. Therefore, the contact information form should contain enough fields to enable the law firm to make a conflict check, such as the name and address of the individual submitting the question. In addition, the law firm should have a disclaimer on the form, letting the potential client know that a conflict check will be made before answering the request. 

The website may have language explaining that the attorney may not: 
  • review or respond to the question unless the individual has submitted his/her name and address because of the attorney’s obligation to check for potential conflicts
  • receive a request from a client located in a different state. 
The attorney needs to ensure that he/she is not giving legal advice outside of his/her legal jurisdiction(s). Courts have found jurisdiction over lawyers based upon telephone, mail, and fax communications sent to the client. Courts have started to consider the use of the internet by a defendant as a significant factor for personal jurisdiction purposes. Be aware that many malpractice policies do not cover claims brought outside the U.S. and Canada.

Consider also for attorney webs:
  • Make it clear whether public opinion or legal advice
  • Conflict checks as for clients who come through the door
  • Since conversation over the internet is open to the public, any confidential legal advice should be given through private email, telephone or letter
  • Comply with the strictest advertising and fee-splitting rules
  • Indicate where he/she is licensed to practice and that the attorney is not giving legal advice where he/she is not licensed to do so
  • Consider worldwide malpractice coverage

Va Code Professional Responsibility

Receipt of information from a client through a website raises the question as to whether the information is confidential. The best advice is to proceed with caution when unsolicited emails arrive at an attorney’s desk. The attorney should place disclaimers on his/her website and on the firm’s email auto signature.

Another concern is the potential risk of a negligent-advice claim. If the firm’s policy is to answer unsolicited questions received via email, the challenge becomes to limit the exposure to a negligent-advice claim. It is easy to make a mistake and provide the wrong legal advice when answering an unsolicited email because the email may not contain all of the information necessary to accurately analyze the situation. 

By comparison, with a phone call, the attorney has an opportunity to ask questions and has much more control over what information is provided. Mark C.S. Bassingthwaighte, J.D., suggests in his article The Trouble with Email[4], that the attorney give himself/herself a 24-hour wait before providing a legal response to a question received over the web. “Take the time to consider if additional information is needed, to decide what qualifications should be included and to think through the answer. Advice given on the fly can too easily miss the mark.” 

One efficient protective system would be that before submitting the question, the client must agree to the terms of a click-through agreement that clearly sets forth the terms of the limited engagement and limits the scope of representation to a question and response or at least documents that the disclaimer has been read. 

A click-through agreement is generally a short document that specifies the terms and conditions that apply to the purchase of a product or service from a website. The buyer will accept the terms by clicking on an “I agree” button after the opportunity to review the terms. These agreements may not be enforceable if the terms are too overbearing or harsh.