Unintended Representation, Part II

Avoid the Problem of Unintended Representation! Part II
By Cynthia Sharp, The Sharper Lawyer       To Read Part I,Click Here

Attorney client relationships are still by and large developed in the traditional manner – in person and in an attorney’s office. However, prospective client relationships and the accompanying obligations set forth in Indiana Rule of Professional Conduct 1.18 also may now arise via e-mail, websites and other electronic means. An attorney’s duty to a prospective client includes maintaining confidentiality, avoiding conflicts and pursuing the case.

In recognition of the potential that an attorney/client relationship may be formed without an in person meeting, the ABA House of Delegates amended Model Rule of Professional Conduct (MRPC) 1.18 (a) in August of 2012 to provide:  “A person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.”

Comment 2 outlines the factors to consider in determining whether a communication (electronic, oral, written, in person or otherwise) constitutes a consultation and gives rise to ethical duties:

  • Whether the lawyer encouraged or solicited inquiries about a proposed representation (as opposed to just posting general information on the website);
  • Whether the person encountered any warnings or cautionary statements that were intended to limit, condition, waive or disclaim the lawyer’s obligations;
  • Whether those warnings or cautionary statements were clear and reasonably understandable
  • Whether the lawyer acted or communicated in a manner that was contrary to the warnings or cautionary statements

Attorney websites inviting inquiries from potential clients need to have a disclaimer posted adjacent to the inquiry form; otherwise, the problem of unintended representation may arise.  As a matter of curiosity, I randomly reviewed websites of 5 Indiana law firms and found 4 of them to be deficient in this regard. (Don’t despair – it seems that the majority of smaller firms nationwide haven’t yet posted protective language.) Take a look at your inquiry form and if it does not have a disclaimer, feel free to use the following language:

 Sample Disclaimer for Inquiry Forms on Websites:

 “The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form.” 

If you found this information to be useful in your practice, you won’t want to miss the upcoming ICLEF CLE seminar presented by Cynthia Sharp on March 14:  The Ethics of Law Practice and Legal Marketing in a Social Media Environment. -This program has been completed. Thanks to Cynthia Sharp and to those in attendance.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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