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.”


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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All Day Ethics, Saturday, Dec. 31: Last Chance for CLE in 2016!

Saturday, December 31, 2016 is the absolute last day to obtain your CLE and Ethics hours for the year! If you have not had the opportunity to squeeze those hours in, ICLEF can help. We will be here all day on the 31st showing Video Replays of some of the best ethical discussions of 2016.

The video presentations are conveniently set up for you to attend at any time during the day. We will be showing one hour ethical segments from our most popular seminars produced this year.

Stop by on December 31st. We’ll be here!


8:30 A.M.    Registration Opens

9:00 A.M.    Ethical Consideration in Personal Injury Litigation
1 CLE / 1 E – From: 9 Ancillary Issues inPersonal Injury Litigation, Sept. 2016
 – Hon. G. Michael Witte

10:00 A.M.   Ethics in Dealing with Pro Se Litigants
1 CLE / 1 E – From: 14th Annual Family Law Institute, Oct. 2016
– Paul A. Leonard, Jr.

11:00 A.M.   Ethical Issues for the Elder Law Attorney
1 CLE / 1 E – From: 2016 Elder Law Institute, Oct. 2016
– Brian K. Carroll & Jeff R. Hawkins

12:00 P.M.   Ethics in Bankruptcy
1 CLE / 1 E – From: Bankruptcy Ethics, Aug. 2016
– Mark S. Zuckerberg & Joseph F. McGonigal

1:00 P.M.   Ethics Matters in Municipal Law
1 CLE / 1 E – From: Municipal Law Update, May 2016
– Kevin P. McGoff

2:00 P.M.   Ethical Considerations – Competency, Who’s the Client, When to Take Action & Examples
1 CLE / 1 E – From: Representing Indiana Nonprofit Org., April 2016
– Marilee J. Springer

3:00 P.M.   Mediation Ethics: Views beyond the Code & into the Practice
2 CLE / 2 E / 2 CME – From: Mediation Ethics: Views beyond the Code & into the Practice, May 16
– Kevin C. Tyra, Denise Page & Ross E. Rudolph

5:00 P.M.   Program Adjourns

Last Chance for CLE in 2016!
Up to 8 CLE / 8 E / 2 CME
Saturday, December 31,  9:00 A.M. – 5:00 P.M.

– ICLEF Conference Facility, Indianapolis

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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120 Hot Tips in Estate, Trust & Probate Practice, Dec. 21

• Scary Probate & Trust Litigation Engagements
• Non-Probate Property
• Planning for Medicaid
• High Net Worth Clients
• Guardianship Disputes
• Claims
• Estate Tax
• End of Life Choices
• “Farrrago”
• Estate Administration
• Drafting Recommendations
• Estate Plans in Divorce
• Fiduciary Income Tax
• Powers of Attorney
• Qualified Plans
• Business Succession
• Discretionary Distribution Provisions
• The ABLE Act
• Basic Reporting Rules
• Valuation Discounts
• Will & Trust Litigation
• Interviewing the Client
• 5 Cases of Note
• From the Bench

Curtis E. Shirley – Chair
Law Office of Curtis E. Shirley, Indianapolis, IN

Hon. Steven R. Eichholtz
Marion Superior Court, Probate Division, Indianapolis, IN

Kevin M. Alerding
Ice Miller LLP, Indianapolis, IN

John A. Cremer
Cremer & Cremer, Indianapolis, IN

Ellen M. Deeter
Of Counsel, Dale & Eke Professional Corporation, Indianapolis, IN

Peter H. Donahoe
Donahoe Irvin PC, Carmel, IN

Robert W. Elzer
Faegre Baker Daniels LLP, Indianapolis, IN

Kent Emswiller
Emswiller, Williams, Noland & Clarke, PC, Indianapolis, IN

Sean J. Fahey
Hall, Render, Killian, Heath & Lyman, P.C., Indianapolis, IN

Robert W. Fechtman
Fechtman Law Office, Indianapolis, IN

Rebecca W. Geyer
Rebecca W. Geyer & Associates, PC, Carmel, IN

Jarrell B. Hammond
Lewis Wagner, LLP, Indianapolis, IN

Brian C. Hewitt
Alerding Castor Hewitt LLP, Indianapolis, IN

Jack G. Hittle
Church Church Hittle & Antrim, Noblesville, IN

Ronald M. Katz
Katz & Korin, PC, Indianapolis, IN

Richard O. Kissel, II
Taft Stettinius & Hollister LLP, Indianapolis, IN

Arlene Kline
Law Office of Arlene Kline, Indianapolis, IN

Beth W. McIntire
The National Bank of Indianapolis, Indianapolis, IN

Jessica L. Merkel
Bunger & Robertson, Bloomington, IN

John M. O’Drobinak
O’Drobinak & Nowaczyk, P.C., Schererville, IN

James A. Reed
Bingham Greenebaum Doll LLP, Indianapolis, IN

Shawn M. Scott
Hall Koehler P.C., Indianapolis, IN

Tamatha A. Stevens
Stevens & Associates, PC, Indianapolis, IN

John D. Wilson
Attorney, Indianapolis, IN

Robert W. York
Robert W. York & Associates, Indianapolis, IN

6 CLE – Wednesday, December 21, 9:00 A.M. – 4:30 P.M.

– ICLEF Conference Facility, Indianapolis

– Reiling Teder & Schrier Law Office, Lafayette

– From your home of office computer

– Available statewide after Live Seminar date

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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The Essentials of Family Law – This Friday – Dec. 16

* Perspectives from the Bench
– Magistrate Kimberly D. Mattingly & Magistrate William P. Greenaway

* Top 10 Family Law Cases from 2016
– Teresa A. Griffin

* Conducting Discovery for a Final Hearing and/or Mediation, with Forms
– Jonathan R. Deenik

* Ethical Considerations for Different Types of ADR: Mediation, Arbitration, & Parenting Coordination
– Elisabeth M. Edwards, Lana Pendoski, & Carol Terzo

* Negotiated Final Documents & Finalization of a Decree, with Forms
– Jason P. Hopper

* GALs & their Role in Family Law
– Vanessa López Aguilera & Jenna L. Heavner

Teresa Griffin, Chair
Faegre Baker Daniels LLP, Indianapolis

Magistrate William P. Greenaway
Hamilton County Superior Court #6, Noblesville

Magistrate Kimberly D. Mattingly
Marion County Superior Court, Indianapolis

Jonathan R. Deenik
Deenik Law LLC, Greenwood

Elisabeth M. Edwards
Wanzer Edwards PC, Indianapolis

Jenna Heavner
Mallor Grodner LLP, Indianapolis

Jason P. Hopper
Cordell & Cordell P.C., Indianapolis

Vanessa Lopez Aguilera
Lopez Law Office, Indianapolis

Lana Pendoski
Newton Becker Bouwkamp Pendoski, P.C., Indianapolis

Carol Terzo
The Mediation Option, Indianapolis

6 CLE / 1 CME / 1 E – Friday, December 16
9:00 A.M. – 4:30 P.M.

– ICLEF Conference Center, Indianapolis

– Ice Miller Law Office, Indianapolis

– From your home or office computer


ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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