Avoid the Problem of Unintended Representation

By Cynthia Sharp, The Sharper Lawyer

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.”

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If you found this information to be useful in your practice, you won’t want to miss the upcoming CLE seminars presented by Cynthia Sharp on Friday, March 10th !

Cynthia will be presenting Strategies for Taking Charge of Your Law Practice & The Lawyer’s Guide to Ethical Business Development at the ICLEF Conference Facility, Indianapolis.

 

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