July 01, 2005

Disclaimers Don't Remove Attorney-Client Relationship

by Sean Sirrine

This is for all of you out there that are already lawyers and have long intricate disclaimers on your blawgs. (There is some effect on law students also, so keep on reading.)

Carolyn Elefant over at My Shingle has a post entitled, "You Can't Disclaim Being A Lawyer, So Why Bother?" In it, she explains that:

You can say that you're not creating an attorney-client relationship ten different ways, but the bottom line is that if it looks like an attorney-client relationship and smells like one, chances are the courts will deem it one.

She refers to an ABA Journal Report entitled, "CAVEAT DOESN’T NEGATE PRIVILEGE, 9th CIRCUIT RULES" in which the first line has to be a surprise for many lawyers who blog:

Internet communication between potential clients and a law firm is privileged, even when an online questionnaire that potential clients fill out states that its use does not create an attorney-client relationship, the 9th U.S. Circuit Court of Appeals has ruled.

This article is based on the recent decision, (June 9), Barton v. U.S. District Court for the Central District of California:

"Prospective clients’ communications with a view to obtaining legal services are plainly covered by the attorney-client privilege under California law, regardless of whether they have retained the lawyer, and regardless of whether they ever retain the lawyer," Judge Andrew J. Kleinfeld wrote.

Kleinfeld wrote that the privilege must apply to such initial consultations and queries because "without it, people could not safely bring their problems to lawyers unless the lawyers had already been retained." Wording denying an attorney-client relationship was included to protect Baum Hedlund from malpractice suits from some of the thousands of people who submitted questionnaires, Kleinfeld noted.

No one would question that privilege would apply if the plaintiffs made their initial contact in an office visit as opposed to an online form, he wrote. "Changes in law and technology that allow lawyers to solicit clients on the Internet and receive communications from thousands of potential clients cheaply and quickly do not change the applicable principles," he said.

So watch those disclaimers, or better yet, take Carolyn Elefant's advice:

So rather than disclaim what you say online, why not think hard about what you do say to begin with - and then stand by it. Because in the end, even the most thorough disclaimer won't insulate attorneys from accountability where it's deserved.

July 1, 2005 04:16 PM | TrackBack

I wonder if this matter will work its way to the SC? In any event, this ruling binds the 9th Circuit only. Attorneys in different cicuits shouldn't relax, but research if they're under a similar regime.

Posted by: Jason at July 1, 2005 05:11 PM

Is it being suggested that this problem would apply to bloggers who happen to be attorneys but who are not soliciting legal business via their blogging? If so, might this clash with the First Amendment's speech/press clause? Is there really a potential client involved in such a scenario? If so, then there may be record keeping requirements, particularly to save one's own legal derriere. And how would this be addressed by malpractice insurers?

Posted by: Shag from Brookline at July 2, 2005 07:17 AM
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