Shidler Journal of Law, Commerce & Technology 3 Shidler J. L. Com. & Tech. 10 Volume 3, Issue 3, Winter 2007
Litigation
Cite as: Kelcey Nichols, Client Confidentiality, Professional Privilege and Online Communication: Potential Implications of the Barton Decision, 3 Shidler J. L. Com. & Tech. 10 (Feb. 14, 2007), at [http://www.lctjournal.washington.edu/Vol3/a010Nichols.html ]
Client Confidentiality, Professional Privilege and Online Communication: Potential Implications of the Barton Decision
Kelcey Nichols [fn1]
Abstract
In a recent case of first impression, Barton v. U.S. District Court for the Central District of California, the U.S. Court of Appeals for the Ninth Circuit held that an online communication involving an online intake form filled out by prospective clients gave rise to an attorney-client relationship governed by the duty of confidentiality and subject to attorney-client-privilege. The Ninth Circuit's multi-factored analysis suggests a modified framework for evaluating when the duty of confidentiality and attorney-client relationship can be formed through online communications. This Article discusses Barton's implications for attorneys and law firms that communicate with clients and potential clients online. Attorneys should be able to avoid an unexpected duty of confidentiality created through an online communication by clearly defining the attorney-client relationship and adhering to the Rules of Professional Conduct.
Table of Contents
Introduction Professional Privilege The Barton Decision Implications of the Barton Decision Conclusion Practice Pointers
Introduction
[1] In a case of first impression, Barton v. U.S. District Court for the Central District of California, the U.S. Court of Appeals for the Ninth Circuit ("Ninth Circuit") held that a duty of confidentiality arose when prospective clients filled out an online questionnaire posted by a law firm. [fn2] In Barton, a law firm sought potential clients to participate in a class action suit involving the prescription drug Paxil. The law firm posted a detailed questionnaire for potential class members on its website. [fn3] Although the firm's website included a disclaimer stating that voluntary completion of the online questionnaire did not initiate an attorney-client relationship, the court characterized the interaction as an initial consultation. [fn4] The Ninth Circuit, however, when viewing the attorney-client relationship from the perspective of a prospective client, held the online communication did give rise to a duty of confidentiality based on the attorney's duties to their prospective clients. [fn5] When the defendants in the suit sought disclosure of the online forms, the Ninth Circuit ruled that the questionnaires were protected under attorney-client privilege. [fn6]
[2] The Barton decision may have implications for attorneys who communicate with clients and potential clients online. In Barton, the Ninth Circuit considered several factors before determining that the online communication gave rise to a professional relationship governed by the duty of confidentiality and subject to attorney-client-privilege. As online communication with clients increases, courts will need to determine when the duty of confidentiality arises online and, subsequently, when attorney-client privilege attaches. The Ninth Circuit's analysis provides a useful framework for addressing the ethical and evidentiary implications raised by online communications. [fn7] However, the factors that determine if an attorney-client relationship exists will depend on the context of each case and who asserts the privilege. Courts are likely to apply the Barton factors differently in situations involving a client's assertion of attorney-client privilege to prevent an opponent from obtaining information through discovery as contrasted with cases of attorney malpractice because of the different nature of each of proceeding.Professional Privilege
Professional Privilege
[3] Online communication between an attorney and a current or prospective client [fn8] may give rise to a duty of confidentiality. [fn9] Once a lawyer communicates with a prospective client by way of an initial consultation, the lawyer has a duty of confidentiality, even if no subsequent client-relationship forms. [fn10] Online communications with prospective clients can be particularly fraught with complications because many means of online communication remain legally undefined. For example, the law has yet to define what constitutes the unauthorized practice of law with respect to Internet communications. [fn11]
[4] Most states have adopted some form of the Model Rules of Professional Conduct that govern attorney conduct. Accordingly, lawyers have generally used state law governing professional conduct and the Restatement (Third) of the Law Governing Lawyers to advise their online communications with clients and prospective clients. [fn12] However, not all of these rules are readily adaptable to the Internet, where there are no readily apparent jurisdictional boundaries. [fn13] Furthermore, prospective clients and attorneys may expect different things from online communication. [fn14] These expectations play a crucial role in determining when a communication gives rise to an attorney's duty to protect a prospective client's confidentiality. [fn15]
[5] Client confidences protected by rules of professional conduct may also be protected under attorney-client privilege and therefore inadmissible as evidence. [fn16] In general, the professional duty of confidentiality is broader than the evidentiary protection under attorney-client privilege. [fn17] Because privilege results in withholding information from the fact-finder, courts construe privilege narrowly. [fn18] The proponent of the privilege has the burden of proving that the privilege exists. [fn19] An existing privilege may be waived either by voluntary disclosure to people outside, or not essential to, the attorney-client relationship, or by failing to take reasonable measures to protect confidentiality. [fn20] The opponent of the privilege has the burden of showing waiver. [fn21]
[6] Online communications raise distinct issues regarding waiver. First, online communications may be less secure than a face-to-face meeting or written correspondence. [fn22] In addition, boilerplate disclaimers used online by attorneys may be insufficient to adequately inform prospective clients about a potential waiver of confidentiality and secure the necessary consent. [fn23] Furthermore, in determining whether an attorney has a duty of confidentiality to a client or a prospective client, courts consider the client, rather than the attorney's, expectations. [fn24] The client's belief that an attorney-client relationship exists must be reasonable. [fn25]The Barton Decision
The Barton Decision
[7] In Barton, a law firm posted an online questionnaire on its website in order to identify potential members of a...
