Using the Internet to attract clients and the attorney-client privilege.

• Author: Gergacz, John

INTRODUCTION

Interesting concoctions often come about when different ingredients combine: take light and shadow, for example, or seeds and soil. Gin and vermouth also come to mind. In law, one can observe the interplay between attorney advertising and the Internet.

During the past thirty years, advertising by attorneys has proliferated. (1) Lawyers commonly use billboards, television, radio and various print-outlets to promote their practices. (2) The Internet has seen its share of attorney advertising, too. (3) The question is no longer whether such techniques are permissible. Instead, one merely evaluates them for their marketing effectiveness.

Traditionally, attorney advertisements might promote the law firm or its practice specialty and invite the viewer to call a toll-free telephone number or make an appointment. (4) In that way, these advertisements were similar to typical product promotions--one-way communications by the seller that required a separate contact-action by the viewer, such as a visit to the store to buy a touted soft drink. There was no seller-buyer interaction from the advertising alone.

However, the Internet has created a different environment, one in which the advertiser and viewer could have much closer contact. For example, the viewer could respond directly to the advertisement (e.g., buy the product, right then, instead of having to go to a store to do so). The Internet has narrowed the distance between seller and buyer and dramatically increased the ease of fostering transactions between them.

One method attorneys have used is an online questionnaire aimed at a targeted prospective-client group. (5) Those in financial difficulty could become bankruptcy clients; the injured, tort plaintiffs, and so on. Web-surfers could easily find a well designed online questionnaire using customary keyword or phrase search methods. Answers to the questionnaire could be sent instantaneously directly to the law firm. Thereafter, counsel could review the responses to separate the appealing potential clients from the unwanted. There would be no need for an appointment, telephone conference, or other personal attorney-client contact.

However, a question arises concerning the status of those electronic responses. Unlike online surveys that one submits to booksellers or to providers of music downloads, information conveyed by clients to their attorneys is protected by the attorney-client privilege. (6) Of course, this protection requires that an attorney-client relationship exist in the first place. (7) If that relationship cannot be established, then the privilege does not attach and the information provided to counsel is discoverable. (8) Thus, not everyone who communicates electronically with an attorney would be considered a client. Spammers are an all too common example. However, questionnaire responders raise a far more compelling case.

This article will evaluate whether those who answer a law firm's online questionnaire should be considered clients for attorney-client privilege purposes. Further, how such a determination may affect this method of attorney advertising will also be analyzed. As a prelude, a brief discussion of the attorney-client privilege will be provided.

ATTORNEY-CLIENT PRIVILEGE: BRIEF OVERVIEW

The attorney-client privilege can be traced back to Elizabethan times when changes in trial proceedings made it essential that a client's communication with counsel remain confidential. (9) Long a part of British common law, the attorney-client privilege has always been available in the United States. (10)

The privilege is designed to promote client candor. (11) It does so by shielding a client's communications with counsel from discovery. (12) Thus, it is an exception to the adversarial system's supposition that all relevant information will be available for the decision-maker to use. (13) Although the attorney-client privilege may limit available information in a particular case and thus risk a skewed result, overall it is considered a fundamental feature of the adversarial system. (14) The rationale may be sketched out as follows.

The law is difficult, if not impossible, to navigate without the assistance of counsel. (15) Attorneys need complete information from their clients in order to provide accurate legal advice.(16) However, if the attorney could later be called as an adverse witness, clients would soon learn that confiding in their attorneys was a double-edged sword. (17) Although their own attorneys may be better able to serve them, the materials provided to enable counsel to do so would be available to their adversaries as well. Consequently, clients would become wary of providing information to their attorneys, thereby compromising the workings of the adversarial system.

However, not every discussion between an attorney and a client qualifies as privileged. (18) The court in United States v. United Shoe Machinery Corp. set forth the standard test for determining whether the privilege applies. (19) The elements of this test may be grouped around three themes--first, the existence of an attorney-client relationship; second, the nature of the information communicated; and, third, the confidentiality of the communication. (20) All components of the test must be satisfied before an attorney-client privilege arises. (21)

For the purpose of this article, the elements within the second and third themes will be presumed, for the most part, to exist. After all, any communication with counsel, whether in person or through an online questionnaire, must concern legal matters and must be intended as confidential to be covered by the privilege. (22) A dinner invitation given to an attorney with copies sent to six others would not qualify as privileged, irrespective of whether the invitation was conveyed online or on stationery.

The key here will be United Shoe Machinery's first theme: an inquiry into the roles of the parties to the communication. (23) For the communication to qualify as privileged, the attorney must communicate as a lawyer. (24) For example, the attorney must be admitted to a bar. (25) Further, the role the attorney occupies must be a legal-practice related one, such as litigator or legal advisor. (26) Acting in the role of an accountant, for example, would not qualify even when performed by a person who has been admitted to a bar. (27)

Similarly, the person who communicates with counsel must be doing so in the role of a client. (28) Merely providing information to the attorney does not suffice. (29) Witnesses do that, as do social acquaintances, though neither are necessarily clients. Clients are those who seek legal advice and communicate to further that end. (30) However, for privilege purposes, clients may include those who communicate with counsel even though no contractual relationship is ever formed between them. (31) For example, the attorney may decline representation after learning about a potential client's legal problem, or the potential client may decide that the attorney's fees are too high. In these cases, the information-providers would not become contract-clients, but may well be considered "clients" under the attorney-client privilege. (32) Their communications with counsel would, therefore, be protected. (33)

Whether similar treatment should be afforded those who submit answers to a questionnaire posted by a law firm depends on several factors. The following sections discuss them.

INTERNET QUESTIONNAIRES AND THE PRIVILEGE

Privileged communications may be accomplished orally or in writing. (34) In addition, no distinction is made under privilege law whether the information is conveyed traditionally (e.g., a letter) or electronically (e.g., e-mail). (35) Thus, clients who send digital messages to their attorneys may do so confident that the privilege applies. (36) Of course, as with any communication, the elements of attorney-client privilege must be satisfied. (37) For example, the email must concern a legal matter and be submitted confidentially. (38) The person who sends it must be or seek to become a client. (39)

However, a person's initial responses to an attorney's online questionnaire are different in an important respect from an e-mail sent by a client to retained counsel: there is no pre-existing attorney-client relationship between the online-questionnaire responder and counsel. The only apparent similarity between the questionnaire responses and the e-mail is that, in both cases, the messages are sent electronically.

Further, although retaining counsel is not a privilege prerequisite, (40) online questionnaire responses are also unlike communications that occur during an initial intake meeting. At such a meeting, the attorney and potential client engage in give-and-take. Counsel may explain the privilege and its confidentiality protection or, alternatively, dispel any notion that what is said will remain confidential. Supplementary explanations may be given if the potential client is confused. Information would be provided by the potential client, too, so that the attorney can assess the matter.

In addition, counsel would be on the alert for unsuitable clients, say, those who would create an ethical conflict of interest or those who may be perpetually dissatisfied and become malpractice claim risks. These may be weeded out during the intake. Consequently, providing privilege protection for initial intake communications makes sense. (41) The meeting would not be effective on any level if potential clients were reluctant to provide counsel with necessary information. (42)

Note, too, that the initial intake meeting is separate from the advertising that attracted the client's attention in the first place. The only communication from a client that a typical legal advertisement might elicit is a telephone call setting up an initial meeting. (43) This call ordinarily would not be privileged, (44) and would be merely tangential to the...