Net Q & A

Question of the Month: September 1999

You invite visitors to a website to e-mail you. Despite having a more or less standard disclaimer at the site, you sometimes receive unsolicited e-mails with detailed information. What, if anything, can you do to prevent later having the party who e-mailed trying to have you conflicted out of the case because of your knowledge, actual or imputed, of information received from the opposing party via the e-mail?

Answer

Because I get similar questions at CLE programs, I believe this type of situation is a major headache for law firms in a number of jurisdictions. Allegedly, some prospective litigants will contact every good law firm in town, for the purpose of creating conflicts of interest to disqualify law firms that might be retained by an opposing party.

The best response to this issue is a question:

"What precautions do you take to prevent having the same thing happen via a paper letter?"

The potential for disqualification is just the same, right? The medium of communication shouldn't make a difference. For some reason, lawyers seem to want to get wrapped around the axle because an electronic form of communication is involved.

For some issues (like security) the differences between e-mail and older technologies are significant. It's hard to see any functional significance to the differences here, though. The same type of conflict checking mechanism should be implemented for e-mail as for paper letters.

This is worth thinking about and implementing properly. Many law firms include direct e-mail links to their lawyers. This may be a mistake, for a number of reasons.

Just as most law firms advertise only one phone number for all lawyers, it may be smarter to include only one e-mail address for the whole law firm on a web site.

This provides the following advantages from an ethical standpoint:

The receptionist can screen e-mails for conflicts before the lawyer sees them. Technically, in some states, this filtering approach might not avoid all conflict problem for the recipient. The receptionist--whether they are reading e-mail or opening paper mail--works for the law firm, just like the lawyer does, so there could be an imputed knowledge problem. However, it should help on a practical level in making the argument that there is no conflict.

Someone in the firm can make sure that nothing falls between the cracks if the intended lawyer recipient is sick, on vacation, left the firm, etc.

It has the following other advantages:

Less spam to the lawyers. Some "harvester" robots cruise web sites looking for e-mail addresses to bombard with unwanted e-mail commercial solicitations.

Marketing opportunities can be exploited more readily. The "receptionist" can send a reply to the effect that the message will be forwarded to the right person, etc., and include some marketing info about the firm, if appropriate.

Jerry Lawson

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