1842
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| Because the duty of confidentiality attaches (according to the Preamble) "when the lawyer agrees to consider whether a client lawyer relationship shall be established," lawyers may use to their client's advantage (and represent the adversary of a prospective client who sent) a prospective client's (1) unsolicited voicemail message containing confidential information, sent to a lawyer who advertises in the local Yellow Pages and includes his office address and telephone number; (2) unsolicited e-mail containing confidential information, sent to a law firm which "maintains a passive website which does not specifically invite consumers to submit confidential information for evaluation or to contact members of the firm by e-mail." Someone submitting such confidential information does not have a reasonable basis for believing that the lawyer will maintain the confidentiality of the information, simply because the lawyer uses "a public listing in a directory" or a passive website. The lawyer in that situation "had no opportunity to control or prevent the receipt of that information," and "it would be unjust for an individual to foist upon an unsuspecting lawyer a duty of confidentiality, or worse yet, a duty to withdraw from the representation of an existing client." Lawyers might create a reasonable expectation of confidentiality if they include in advertisements or in their website language that implies "that the lawyer is agreeing to accept confidential information." In contrast to lawyers who merely advertise in the Yellow Pages or maintain a passive website, a lawyer would have to keep confidential (and would be prohibited from representing a client adverse to a prospective client which supplies) information provided by a prospective client who completes an on-line form on a law firm website which "offers to provide prospective clients a free evaluation of their claims." Law firms "may wish to consider" including appropriate disclaimers on their website or external voicemail greeting, or including a "click through" disclaimer "clearly worded so as to overcome a reasonable belief on the part of the prospective client that the information will be maintained as confidential." |