The Massachusetts Bar Association’s Committee on Professional Ethics has issued an advisory ruling that having a lawyer’s email address available on the firm’s website can be a problem.
“In the absence of an effective disclaimer, a lawyer who receives unsolicited information from a prospective client through an e-mail link on a law firm web site must hold the information in confidence even if the lawyer declines representation. Whether the lawyer’s firm can represent a party adverse to the prospective client depends on whether the lawyer’s obligation to preserve the prospective client;s confidences will materially limit the firm’s ability to represent the adverse party.”
The opinion distinguishes between email sent to a lawyer through the firm’s website and an email sent by other means. Ordinarily, the lawyer has no opportunity to control the flow of information to their email inbox and a prospective client should have no expectation regarding confidentiality or the establishment of an attorney-client relationship. The opinion points out that the law firm can control the flow of information originated from its website and condition the use of email links by appropriate disclaimers. In addition, since the law firm website makes the expertise of lawyers available, the client has the ability to identify an appropriate lawyer to communicate with.
I have always been annoyed at websites that do not expose the lawyer’s email address, but instead requires you to fill out a form that passes the information on to the person. I always preferred websites with a readily available email address.
It looks like firms in Massachusetts will have to start using an email message form on the website with an appropriate disclosure that “any information communicated before the firm agrees to represent the prospective client will not be treated as confidential” and that the “receipt of information from a prospective client will not prevent the firm from representing someone else in the matter.”