Don’t send that confession to a lawyer you don’t know!

Check out the recent ABA Ethics Newsletter.

There is a highly informative article about the responsibilities of lawyers when it comes to “unsolicited” information received from potential clients.

On the web, lawyers are sent information everyday that could lead to a conflict of interest. The most common case would be the one in which both parties to an accident shotgun an email to all lawyers on-line giving detailed information about the same accident.

In the past, a lot of men’s support groups told their members to interview a lot of lawyers with the sole objective of preventing the wife from later retaining that lawyer. I’m sure it still goes on, but the better lawyer will interview people FIRST for conflict, then for details.

The woman who inadvertently revealed her extramarital affair to her husband’s divorce lawyer used an electronic form on the firm’s Web site to submit information about the case, noted the California State Bar’s ethics committee. In order to proceed, she was required to consent electronically to certain terms, including an agreement that no “attorney-client relationship” or “confidential relationship” was formed.

It’s not so easy on the web, because people seem to lose all sense of self-protection when e-mailing lawyers on the web. I’m sure it’s because they simply don’t know and it would never occur to them that someone else got there first.

So, what is a lawyer to do, when the wife of a client sends an e-mail admitting that she’s a compulsive gambler, and asks for his help in getting a quickie divorce so she can marry the guy she met in Vegas the week before?

Well, the ABA has given some guidance, and it’s not always what you might expect.

Client Intake Software Suggestions

Some points of notice to people designing advanced web tools for lawyers that involve incoming clients:

1) Build in a system of electronic intake triage.

Don’t just warn the potential client using boilerplate legalese. Make it interactive by asking the person to identify all other parties and then have that display FIRST, before the e-mail content appears. Do this in all e-mail forms exposed to the public. Heck, do it on the intranet too! You never know when a disgruntled, but not-quite-clued-in employee will write asking about how he can get out of a non-compete agreement.

But the committee decided that those disclaimers were inadequate, and that the lawyer could not represent the husband. The committee said they were “not in sufficiently plain terms to defeat the visitor’s reasonable belief that the lawyer is consulting confidentially with the visitor.”

The committee noted that a disclaimer stating, “I un­der­stand and agree that law firm will have no duty to keep confidential the information I am now transmitting to law firm,” would have eliminated any reasonable expectation of confidentiality, allowing the lawyer to represent the husband in spite of the wife’s admissions of adultery.

This is SUCH A SIMPLE SOLUTION!

What you want is documentation of the information and of the fact that it was NOT viewed by counsel. This is a way to help lawyers keep their current clients and prevent mandatory withdrawal. No lawyer wants to withdraw prematurely from a juicy case.

I think this is also the main reason paralegals get a first crack at information. If the paralegal hears it, it’s not as big a taint on the lawyer.

2) Inform the client from the second s/he walks in the electronic door NOT to divulge incriminating information UNTIL they have a written representation agreement.

Prudent lawyers will build in a back door for clients they find they don’t want (I call it the “yeah, I punched my boss” or “it’s just a white lie, –no one will know” client). Further, most bars require a written services agreement in order to secure the right to payment anyway.

There are many services out there (one I’m building included) that will help triage cases for lawyers. Details later.

3) Always ask clients to identify immediately whether they have received or filed court papers of any kind.

Give up the legalese, simply ask: did you get any court papers or anything that LOOKS like a government paper about this??

Then ask again.

Then politely inquire the crumpled paper sticking out of the back pocket, that has the words “SUMM…” written on it, but partially obscured by ketchup.

There are ways to do this electronically. Not that hard to think about.

Does your software package do any of this? Let me know! Leave a comment!