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Creating attorney-client relationships online without meaning to
RICHARD WEINER
Technology for Lawyers
Published: November 16, 2018
Marketing online can have a lot of benefits, but it might have some unforeseen drawbacks. For instance, what if a simple gesture creates an inadvertent/unwanted attorney-client relationship? It could happen.
So—you have a website. On that website is an offer to answer questions posed by the public. They can send you questions by email, text, portal, or whatever.
And so you answer a question, hoping that that might lead to acquiring a client.
But then you realize that you don’t want that person as a client, because you can’t do the job. Or you have a conflict, or you just don’t want to.
But then---
The dude whose question you answered now considers you to be his attorney, with all that that means. He thinks that you answering his question created an attorney-client relationship, and that email becomes part of a file, subject to attorney-client confidentiality and privilege and all the rest of it.
It could happen, according to an interesting ethics opinion from the Wisconsin Bar (which is a leading light in these kinds of questions).
That opinion states that “it is important to remember that the creation of an attorney/client relationship will be reviewed ‘from the eyes of the prospective client,’ meaning that the prospective client’s expectations are what will be weighed when determining whether an attorney/client relationship exists.”
It could easily be that formulating an answer to an email question creates an attorney-client relationship in the eyes of the client, whether the attorney thinks so or not.
So, if you’re asking people to send you questions, it is very important to have the proper disclaimers on your website, Twitter account, or wherever you’re soliciting questions.
Wisconsin’s ethics committee suggested two clear disclaimers on the site:
1) that there is no lawyer/client relationship being created by someone sending an email to the website or lawyer, and
2) that any email communication sent by an individual would not be considered confidential under the rules.
The committee also suggested that the disclaimer be short and easily understood by a layperson.
This disclaimers are easy to post, so just go ahead and do that now (and thank me later).