The Florida Bar
PROFESSIONAL ETHICS OF THE FLORIDA BAR
January 16, 2009
January 16, 2009
A person seeking legal services who sends information unilaterally to a lawyer has no reasonable expectation of confidentiality regarding that information. A lawyer who receives information unilaterally from a person seeking legal services who is not a prospective client within Rule 4-1.18, has no conflict of interest if already representing or is later asked to represent an adversary, and may use or disclose the information. If the lawyer agrees to consider representing the person or discussed the possibility of representation with the person, the person is a prospective client under Rule 4-1.18, and the lawyer does owe a duty of confidentiality which may create a conflict of interest for the lawyer. Lawyers should post a statement on their websites that the lawyer does not intend to treat as confidential information sent to the lawyer via the website, and that such information could be used against the person by the lawyer in the future.
RPC: Preamble, 4-1.18
OPINIONS: 66-23 [since withdrawn], Arizona 02-04, California Formal Opinion 2005-168, New York City Bar Association 2001-1, San Diego County Bar Association 2006-1
The Professional Ethics Committee has been asked by The Florida Bar Board of Governors to provide guidance to Florida Bar members regarding the issue of unilateral communications to lawyers from or on behalf of persons seeking legal representation. This issue is one of interest generally, particularly with advances in technology, because persons seeking legal representation are easily able to send information to lawyers electronically and via telephone message with the ability to provide large amounts of information regardless of whether the lawyer requested the information or even agreed to consider representing the person. Questions arising from this situation include whether the recipient lawyer has a duty of confidentiality regarding information received unilaterally from a person and whether
The preamble to the Rules of Professional Conduct, Rules Regulating The Florida Bar, provide as follows:
[F]or purposes of determining the lawyer's authority and responsibility, principles of substantive law external to these rules determine whether a client-lawyer relationship exists. Most of the duties flowing from the client-lawyer relationship attach only after the client has requested the lawyer to render legal services and the lawyer has agreed to do so. But there are some duties, such as that of confidentiality under rule 4-1.6, which attach when the lawyer agrees to consider whether a client-lawyer relationship shall be established. See rule 4-1.18. Whether a client-lawyer relationship exists for any specific purpose can depend on the circumstances and may be a question of fact.
Rule 4-1.18, adopted by the Supreme Court of Florida in 2006, defines a prospective client in subdivision (a) as "A person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client." Subdivision (b) provides that "Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation, except as rule 4-1.9 would permit with respect to information of a former client." The comment to Rule 4-1.18 provides as follows:
Not all persons who communicate information to a lawyer are entitled to protection under this rule. 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 subdivision (a).
Florida Ethics Opinion 66-23 [since withdrawn], written before the adoption of Rule 4-1.18, concludes that a lawyer must treat as confidential information from a person seeking legal representation even if unsolicited, unless it is clear from the circumstances that the person had no expectation of confidentiality.
There are few other state bars that have addressed this issue recently. Arizona Ethics Opinion 02-04 (September 2002) concludes that an attorney owes no duty of confidentiality to persons who send unsolicited e-mails to attorney and may disclose and otherwise use such information, but law firm websites should include disclaimers indicating whether the law firm will treat e-mails as confidential information. New York City Bar Association Ethics Opinion 2001-1 (March 1, 2001) provides that a lawyer is not disqualified from representation of an existing client when the lawyer receives an unsolicited e-mail from an adverse party, but that the lawyer may not use or disclose that information if the lawyer's website has not adequately disclosed that the law firm will not treat such communications as confidential. San Diego County Bar Association Ethics Opinion 2006-1 concludes that a lawyer does not owe a duty of confidentiality to a person who sends unsolicited information to the lawyer and may use the information received unsolicited from another in the representation of an existing client. The State Bar of California has gone so far as to conclude that a lawyer can invite persons to provide information to the lawyer via e-mail or other form of electronic communication via the lawyer's website with no duty of confidentiality attaching if the lawyer provides a clear disclaimer that he or she will not treat the information provided as confidential. See California Formal Ethics Opinion 2005-168 (2005).
The committee generally agrees with the rationale of the state bars that have addressed this issue. The committee's opinion is that a person has no reasonable expectation that a lawyer will keep confidential information that is sent by that person unilaterally. The committee concludes that such a person is not a "prospective client" within the meaning of Rule 4-1.18, because the lawyer has not discussed the possibility of representation with the person. The lawyer therefore will not have a conflict of interest in representing the adversary of a person who has sent information to the lawyer unilaterally, and the lawyer may disclose or use that information in the representation of the adversary. On the other hand, if the lawyer has discussed the possibility of representation with a person or agreed to consider representing the person, that person is a "prospective client" under Rule 4-1.18, and the lawyer therefore owes the person a duty of confidentiality which may create a conflict of interest in representation of an adversary. In adopting this opinion, the committee withdraws Florida Ethics Opinion 66-23 [since withdrawn]. This opinion addresses only unilateral communications. The committee recommends that lawyers who invite persons seeking legal representation to provide information via the lawyer's website, and do not intend for the information to be treated as confidential, should prominently post a disclosure statement. The disclosure statement should inform the invitees that the lawyer does not intend to treat such information as confidential, that no confidential information should be disclosed, and that the information provided through the website could be used in the future against the person.