The Attorney's Office Tools client relationship may be formed.18
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be considered false or misleading. One of the advantages of Internet advertising is the
ability to have the prospective client make contact with the firm through email. Te ability to ask for advice or make comments is generally provided to the prospective client and often the attorney can reply by email. Of course, such contact creates its own ethical challenges of which the prudent attorney must be aware. What, if any, duty is owed to the non-lawyer emailer? Perhaps the first question to be asked is: “Does this
contact create an attorney-client relationship?” In most instances, the answer will be that it does not. Nevertheless, practitioners must be mindful of the possibility that such a relationship can occur with the resultant duties attendant to such a relationship. Typically the relationship arises when:
1. a person manifests to a lawyer the person’s intent that the lawyer provide legal services for the person; and either a. the lawyer manifests to the person consent to do so; or
b. the lawyer fails to manifest lack of consent to do so, and the lawyer knows or reasonably should know that the person reasonably relies on the lawyer to provide the services; or
2. a tribunal with power to do so appoints the lawyer to provide the services.”17
Generally speaking, if a person seeks and receives
legal advice from an attorney in circumstances in which a reasonable person would rely on such advice, an attorney
17 Restatement (Tird) of the Law Governing Lawyers, Section 14. Te Court of Appeals of Maryland has said, “what constitutes an attorney client relationship is a rather elusive concept.” Attorney Grievance Comm’n v. Shaw, 354Md. 636, 650, 732 A.2d 876, 883 (1999) (quoting Folly Farms I, Inc. v. Trustees, 282 Md. 659, 670, 387 A.2d 248, 254 (1978)).
18 Trial Reporter / Spring 2010
should consider whether the emailer seeking an opinion would reasonably rely on it. If so, a court might later say the relationship has been formed. Although a disclaimer on the website may offer some protection to the law firm, communication with a prospective client which conflicts with the terms of the disclaimer may vitiate its effectiveness and an attorney client relationship could be found to have been established.19
Even if no attorney client
relationship is solemnified, the attorney may owe duties to those persons with whom there is communication. Rule 1.18 sets forth duties to prospective
clients that include the duty not to use or reveal information learned in the consultation, except as Rule 1.9 would permit with respect to information of a former client. Tere appears
to be no good reason to interpret the communication in a “consultation” to exclude communications with prospective clients through the Internet, by email or even chat rooms. Tat same Rule addresses the possibility of the disqualification of a lawyer with respect to the representation of a client with interests materially adverse to those of a prospective client. Te attorney must address the identity of the emailing individual and the nature of the problem to avoid conflicts with present clients. In summary, unless an attorney who communicates directly with an individual seeking legal advice on line wishes to be burdened by the attendant ethical requirements, he or she must be careful to avoid creating an attorney client relationship. Te MSBA Ethics Committee has twice reviewed ethics requests relating to domain names.20
Te Committee found
that the absence of the attorney’s name from the domain name does not, by itself, violate the Rules. A domain name, after all, is like an address and is not used primarily to advertise the attorney’s services. Nevertheless, when the domain name includes the use of descriptive words or phrases, the Rules may be implicated. Te Committee, for instance, was asked about the propriety of the name “
www.marylandadoptions. us” as a domain name. Tis name, the Committee concluded, was an advertisement or communication about the lawyer’s practice, and was therefore subject to Rules 7.1 and 7.5. Te use of the word “Maryland” was problematic because a domain name is a professional designation subject to the prohibition against using a designation that implies a connection with the government. Te Comment to Rule 7.5 specifically cautions against the use of the name “Maryland” and the
18 See Togstad v. Vesely, Otto, Miller & Keefe, 291 N.W. 2d 686 (Minn.1980). 19 See Vermont Advisory Ethics Opinion 2000-04. 20 MSBA Committee on Ethics, Ethics Dockets 2004-15, 02-18.
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