Using the Internet to attract clients and the attorney-client privilege.

Note, too, that the initial intake meeting is separate from the advertising that attracted the client's attention in the first place. The only communication from a client that a typical legal advertisement might elicit is a telephone call setting up an initial meeting. (43) This call ordinarily would not be privileged, (44) and would be merely tangential to the communications that may occur at the meeting.

Consider, by way of contrast to a traditional initial intake meeting, an attorney's online questionnaire. In the online questionnaire, both the advertising and "initial intake meeting" are combined in one format. (45) Through the posted questionnaire, the attorney seeks to attract potential clients, encourage them to provide information, and screen the responses before replying. (46) Moreover, all of the attorney's communications appear on the posting itself. Unlike an initial intake meeting's communication flexibility, the contents of the posting cannot be contoured to the needs of an individual potential client. Further, information is sought from anyone who comes across the online questionnaire even though many responders, if their contacts occurred in person, would likely be refused representation. (47)

By combining the advertising and information-conveying functions of a traditional two-step attorney advertising-initial meeting scenario, the online-questionnaire format raises an issue about whether the questionnaire's structure and language can effect the responder's expectation that an attorney-client relationship existed. To begin this analysis, a review of Barton v. United States District Court (48) will be instructive.

Barton began as a product liability action concerning the antidepressant Paxil. (49) The defendant, SmithKline Beecham Corporation, sought discovery of the online questionnaires the plaintiffs had filled out before they retained counsel. (50) The law firm to whom the questionnaire responses were sent had posted the questionnaire as a marketing tool aimed at those who had been injured by using the medication. (51) These people were asked to submit responses to the questionnaire, (52) which could be sifted through by the law firm to weed out those with weak or nonexistent claims.

However, the law firm sought to avoid making a commitment to every responder and, in effect, becoming his or her attorney. (53) The Internet's vast constituency could overwhelm the firm with ersatz "clients." (54) Further, malpractice risks needed to be managed. (55) Thus, the questionnaire contained language indicating that more than a mere reply would be needed to assure legal representation. (56) The law firm intended that the responders would, at first, merely be information providers and only later, once screened and an agreement signed, become clients of the law firm. (57)

Nonetheless, as noted earlier, even though no retainer agreement is signed, a person's communication with counsel may still be privileged. (58) Those who make initial contact with an attorney in seeking legal representation may find their communications protected even if that attorney is never hired. (59) The information-providing incentive that the privilege provides is needed as much by prospective clients as it is by those who have already retained counsel. (60) After all, if communications during an initial meeting with an attorney were discoverable, prospective clients would soon learn to be wary of candor. (61)

Two portions of the online questionnaire used in Barton bear reviewing in this regard. The first portion was its introductory material. (62) In boldface print, the questionnaire stated that its purpose was to gather information about use of Paxil and any accompanying symptoms. (63) In addition, responses were sought either from those who believed they had been injured by taking Paxil or from loved ones of those adversely affected. (64) Furthermore, responders were told they would be kept informed about the litigation, its class-action status, and any settlement. (65)

The second portion of the questionnaire was a submission-acknowledgment notification. (66) The notification stated that submission of the response constituted acknowledgment that no legal advice was being requested and that no attorney-client relationship would be formed, unless a separate fee agreement was signed. (67) Further, the responders were told that if the law firm otherwise replied to the submitted questionnaire, it would merely be to provide general information. (68) Such a response, the responders were advised, should not be relied on as legal advice. (69) Finally, the responders were cautioned not to authorize a release of medical records if requested by GlaxoSmithKline. (70)

The federal district court concluded that the responses to the questionnaire were not privileged. (71) It construed the above two questionnaire portions, hereinafter called the "advisory," as a disclaimer of confidentiality. (72) Thus, under the district court's reasoning, by clicking on the submit button, the responder waived any confidentiality expectation that an attorney-client relationship would otherwise have provided. (73) Consequently, the court ordered that the plaintiffs' questionnaire responses be disclosed. (74)

Note, however, that neither the word "confidential" nor the word "waiver" was used in the advisory, nor was there specific disclaimer language. (75) Nor were there comparable allusions to a privilege or confidentiality waiver, (76) such as "your responses may be shown to others," or "the law firm may not keep your responses a secret." Thus, the district court could not have found the disclaimer of confidentiality in the plain meaning of the posted words. (77)

However, the law firm was forthright about its limited role in relation to those who decided to answer its questionnaire: no legal advice was to be expected nor would an attorney-client relationship be formed merely by responding. (78) The district court may well have inferred a disclaimer from the firm's role, limited by the advisory, as being merely an information gatherer rather than an attorney. (79) One may contend that the responders should have expected that answering the law firm's questionnaire was no different than submitting responses to any survey, such as one that assesses household product preferences or ranks Twentieth-Century novelists. The responders, then, could not reasonably expect that their responses, unlike those given during an initial attorney-client conference, (80) would be confidential.

Further, in the advisory, the law firm "was careful to avoid committing itself to an attorney-client relationship" merely by accepting responses to its questionnaire. (81) The questionnaire's language dispelled any prospect of such a relationship unless the parties entered a separate fee agreement. (82) Consequently, one may argue that the responders could not expect any confidentiality, since pains were taken to avoid creating an attorney-client relationship. Of course, though, in an initial contact meeting, representation is always possible--this is the reason that the potential client is at the lawyer's office and that the client provides information. (83)

However, drawing an inference of no confidentiality from the advisory is a struggle, as the above analysis demonstrates. Such an effort, however, should not be required to determine what level of confidentiality a potential client may have intended, particularly when the attorney-client privilege is at stake. Although some of the advisory language arguably supported the district court's conclusion, other language painted a different picture. (84) As the Ninth Circuit pointed out, the use of plain English could have alleviated the privilege dispute in the first place. (85) Instead, what the responders should have expected when answering the questions was unclear. (86)

On the one hand, the law firm was limiting its role, but on the other, the questionnaire was a client-solicitation exercise in which references to law-related matters abounded: the questionnaire sought information from injured Paxil users or their loved ones; the information was sought by a law firm pursuing litigation, possibly a class action that may involve a settlement; responders were advised not to acquiesce in requests for medical records from Paxil's manufacturer; and responders were told that they may be referred to local counsel because not every state's law is the same concerning these claims. (87) One could readily assert that the advisory was, thus, a law-related one which reinforced a responder's expectation of confidentiality, akin to an initial intake meeting with counsel.

Consequently, the Ninth Circuit found that the questionnaire's message about the law firm and responders' roles was ambiguous, and that the district court had therefore erred in its reading of the questionnaire. (88) Note, though, that the district court's interpretation was not necessarily defective; rather, the district court mistakenly presumed that the questionnaire-responders would come to the same conclusion about confidentiality expectations that it did, even though other interpretations were equally, if not more, valid.