On Legal Ethics


January 4, 2011


The ethics of social networking and unsolicited communications

When modern lawyers choose to practice law both offline and online, one of the hazards in the business is the issue of unsolicited communications. Unsolicited comments on social networking sites may be analogous to unsolicited e-mail, except that Facebook postings, unlike e-mail, are much more public.

In deciding whether or not there is a reasonable expectation on the part of a potential client that the information they post on a lawyer's social networking site is confidential, in addition to considering how the information was posted on the site, we should look at other factors as well. For example, there are some public networking sites on which lawyers can post answers to questions submitted. Does the lawyer who answers questions online transmit a willingness to provide free legal advice and potentially enter into a lawyer-client relationship with people who are asking questions? Or maybe the lawyer is using Twitter and posting "Tweets," which contain information about the lawyer's practice that might arguably invite responses or questions from prospective clients. How might that affect the reasonableness of a potential client's expectation that their information will be kept confidential?

The savvy lawyer will have a disclaimer on their site in order to guard against false expectations of creating an attorney-client relationship. Regarding website disclaimers, California Formal Op. no. 2005-168 opined that a lawyer who provides his or her website visitors with a means by which they can communicate with the lawyer on the site may effectively disclaim owing a duty of confidentiality "only if the disclaimer is in sufficiently plain terms to defeat the visitors' reasonable belief that the lawyer is consulting confidentially with the visitor." The opinion goes on to specify that "(s)imply having a visitor agree that an 'attorney-client relationship' or 'confidential relationship' is not formed" would not defeat a visitor's reasonable belief that the information transmitted to the lawyer on his or her site will be kept confidential. Many lawyers don't fully understand the difference between the scope of attorney-client privilege and the scope of client confidentiality; we don't expect nonlawyers to understand the distinction any better.

Regarding an unsolicited e-mail that is not in response to an invitation on a website, despite containing what one might otherwise consider confidential information, unsolicited e-mail -- just like an unsolicited detailed message on an answering machine -- normally will not constitute a confidential communication between lawyer and client. See San Diego County Bar Assn. Legal Ethics Committee Opinion 2006-1 (sdcba.org/ethics/ethicsopinion06-1.htm).

Duty to prospective clients

Lawyers identified in their professional capacity on social networking sites probably already realize that they risk receiving unsolicited communications from others on the site. Regardless of whether or not an attorney-client relationship is ultimately formed, however, lawyers owe certain duties to prospective clients. The burning question, of course, is when exactly someone becomes a "prospective client"?

Rule 1.18 duties to prospective client

Although not binding in California, the ABA Model Rules are often instructive. ABA Rule 1.18 addresses a lawyer's duties to a prospective client. The rule defines a "prospective client" in subsection (a) as "(a) person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter."

Even when no client-lawyer relationship results, however, subsection (b) provides that "a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation, except as Rule 1.9 would permit with respect to information of a former client."

The rest of the rule provides as follows: (c) A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d). If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d) (Paragraph (d) provides the circumstances under which representation is permissible even when the lawyer has received disqualifying information.).

This rule presumes a prospective client is contacting a lawyer in a good faith attempt to decide on whether to enter into an attorney-client relationship. Obviously, not all such contacts are made in good faith. Consider the client who schedules meetings with several lawyers in an attempt to disqualify each of the lawyers from representing their opposition. Or in the electronic realm, sends messages to several lawyers sharing confidential information with each one, for the same purpose.

Comment [2] further clarifies that not everyone who communicates information to a lawyer is protected under Rule 1.18. "A person who communicates information unilaterally to a lawyer, without any reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship, is not a "prospective client" within the meaning of paragraph (a)."

It has been observed that similar to former clients, prospective clients are entitled to "slightly less" confidentiality than current clients (ABA Annotated Model Rules of Professional Conduct 5th ed., at 287.). The mere sharing of information does not automatically lead to disqualification of the lawyer. Obviously, a lawyer must receive enough preliminary information to decide whether or not to consider representation in the first place. Notice that Rule 1.18 (c) requires the information be "significantly harmful" to the prospective client before disqualification can become an issue.

Patrick is a deputy district attorney in the Sex Crimes and Stalking Division of the San Diego District Attorney's office and has been a chair of the San Diego County Bar Association Ethics Committee. Ms. Patrick is one of 16 members of the California State Bar Committee on Professional Responsibility and Conduct (COPRAC). She can be contacted at wendy.patrick@sddt.com. The information in this column is intended to be informational only and does not constitute legal advice. Please shepardize all case law before using.


January 4, 2011