ABA Ethics Opinion 10-457

Presented by Richard Mayberry to a national audience of lawyers for continuing legal education; first presented 2011

2011 ABA Ethics Opinion 10-457

             Lawyers, who now commonly communicate with the public via the Web, must not include misleading information on their lawyer websites, must be mindful of the expectations created by their websites, and must carefully manage website-initiated inquiries about legal services by the public.  Websites that invite such inquiries may create a prospective client-lawyer relationship under Rule 1.18 of the ABA Model Rules of Professional Conduct.  Lawyers who respond to such inquiries should consider the possibility that Rule 1.18 may apply, according to Formal Opinion 10-457, dated August 5, 2010, of the ABA Standing Committee on Ethics and Professional Responsibility.

             The benefit of a lawyer’s website providing information about the law and the value of legal services can diminish if the website visitor misunderstands or is misled by website information and features.  A website visitor might rely on general legal information to answer a personal legal question.  Another visitor might assume that having electronic contact with a lawyer’s website implies that the lawyer agrees to preserve the confidentiality of information disclosed by website visitors.  Opinion 10-457 addresses some of the ethical obligations that lawyers have when considering the content and features of their websites.

            Biographical information about lawyers may be provided by their websites, including education, experience, practice areas, and contact information.  A website may add information about the law firm, such as its history, identities of former or current clients, matters handled, and results obtained. Such information constitutes a “communication about the lawyer or the lawyer’s services” and is therefore subject to the requirements of Model Rules 4.1(a), 7.1, and 8.4(c) which, together, prohibit false, fraudulent or misleading statements of law or fact.  Rules 5.1 and 5.3 extend this obligation to managerial lawyers by obligating them to make reasonable efforts to ensure the law firm has measures reasonably assuring that all lawyers and non-lawyer assistants in the firm will comply with the Model Rules.  Information that identifies current or former clients or the scope of their matters may be disclosed as long as the clients give informed consent as required by Rules 1.6 (current clients) and 1.9 (former clients).

 Model Rule 1.6 (Confidentiality of Information) reads as follows:

(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).

(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

(1) to prevent reasonably certain death or substantial bodily harm;

(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services;

(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services;

(4) to secure legal advice about the lawyer's compliance with these Rules;

(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; or

(6) to comply with other law or a court order.

             Lawyers’ websites may offer accurate legal information that does not materially mislead reasonable readers.  To avoid misleading readers, lawyers should ensure that legal information is accurate and current, and should include qualifying statements or disclaimers.

             Website-initiated inquiries about legal advice or representation may raise an issue concerning the application of Rule 1.18 (Duties to Prospective Clients), which protects the confidentiality of prospective client communications. It also recognizes several ways that lawyers may limit subsequent disqualification based on these prospective client disclosures when they decide not to undertake a matter. Rule 1.18(a) addresses whether the inquirer has become a “prospective client,” defined as a person “who discusses with a lawyer the possibility of forming a client-lawyer relationship.”  To “discuss” generally contemplates a two-way communication, which begins with an initial communication.  Rule 1.18 implicitly recognizes that this initial communication can come either from a lawyer or a person who wants to become a prospective client.  Rule 1.18 Comment [2] recognizes that not all initial communications from individuals who want to be prospective clients necessarily result in a “discussion” within the meaning of the rule: “a person who communicates information unilaterally to a lawyer, without any reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship, is not a prospective client.”  If a lawyer website requests or invites submission of information concerning the possibility of forming a client-lawyer relationship with regard to a matter, a “discussion” will result when a website visitor submits the requested information.

            If a discussion with a prospective client has occurred, Rule 1.18(b) prohibits use or disclosure of information learned during such a discussion without the prospective client’s informed consent. Rule 1.18(c) disqualifies lawyers who have received information that may be “significantly harmful” to the prospective client from representing others with adverse interests in the same or substantially related matters. Lawyers’ websites can include warnings or cautionary statements to limit, condition or disclaim a lawyer’s obligation to a website visitor so as to avoid a misunderstanding by the visitor that: a client-lawyer relationship has been formed; the visitor’s information will remain confidential; legal advice has been provided; or the lawyer will be precluded from representing an adverse party.