Last month, the American Bar Association adopted several important, pro-lawyer changes to the Model Rules of Professional Conduct. As a result of these changes, many states are likely to follow suit and amend their rules as well. Click here to download the ABA Amendments to Model Rules, dated August 2012.
Duties to Website Visitors…Prospective Clients
One of the most important changes affects a lawyer’s duty to a prospective client. The new amended rule recognizes that a website visitor who emails/calls a lawyer about services could be a prospective client.
Rule 1.18 Duties to Prospective Clients (as amended, deletions noted)
(a) A person who discusses consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.
(b) Even when no client-lawyer relationship ensues, a lawyer who has had discussions with learned information from a prospective client shall not use or reveal that information learned in the consultation, except as Rule 1.9 would permit with respect to information of a former client.
In addition, the newly amended comment section to Rule 1.18, Comment [2] makes it clear that a person becomes a prospective client when they consult with a lawyer. The ABA amended Comment [2] and added an example of when a consultation occurs:
“For example, a consultation is likely to have occurred if a lawyer, either in person or through the lawyer’s advertising in any medium, specifically requests or invites the submission of information about a potential representation without clear and reasonably understandable warnings and cautionary statements that limit the lawyer’s obligations, and a person provides information in response.” (emphasis added)
How Rule 1.18 Applies to Lawyer & Law Firm Websites
Contact forms are widely used on lawyer and law firm websites. In addition, as more and more prospective clients use the internet to find and research lawyers, websites now more than ever, are critical to lawyer marketing.
People use lawyer websites to find information and then contact lawyers about services and representation. Lawyers must consider the duty of confidentiality when they are contacted by a website visitor. Under the newly amended Rule 1.18, if the lawyer’s website fails to limit the lawyer’s obligations (via a disclaimer), then a website contact could be deemed a consultation to which the duty of confidentiality applies.
This is important in two ways:
1. For lawyer websites without website disclaimers: When contacted by a website visitor, you must preserve confidentiality of the information you receive. You must also follow Rule 1.9., Duties to Former Clients.
2. For lawyer websites with adequate website disclaimers: When contacted by a website visitor, you do not have any duty of confidentiality.
Whether through use of a contact form or through email or phone, Rule 1.18 sends a clear message that lawyers should use disclaimers on their websites. Read more about Lawyer Internet Marketing & Ethics here.
LCL Web Solutions is a legal internet marketing company founded by experienced lawyers. LCL Web Solutions provides legal internet marketing services to lawyers and law firms throughout the U.S.
