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Weekly Updates1. Attorney Internet Questionnaires as Legitimate Advertising
Application of the attorney-client privilege does not traditionally require consideration of the advertising that drew a prospective client to a particular lawyer's office. (98) Perhaps the allure was a print-advertisement or a telephone book listing. Maybe a friend recommended that attorney. Whatever the reason, it has no influence on whether the privilege attaches to the intake meeting's communications. (99) They are independent of one another.
Both the client-attracting aspects of attorney advertising and initial contact with those attracted were joined together in the questionnaire in Barton. (100) The online website was a specifically targeted marketing tool, quite different from traditional methods (e.g., print or broadcast advertising). (101) It was designed to attract a narrowly-drawn group of potential clients, Paxil users injured by the product. (102) Thus, the law firm was better able to reach sought-after potential clients than if it had, instead, used magazine advertising. (103) In addition, far more viewers might be attracted to a website that was constructed with conventional search techniques in mind, than a broadcast advertisement, for example. In fact, the web coverage is international in scope. Anyone with access to a computer who may have been harmed by Paxil could enter a few key words and discover the questionnaire.
However, the questionnaire in Barton was not only an advertising device, but also provided an opportunity for an initial contact between web surfer and counsel. (104) This is the innovation in attorney practice-building that the Internet makes possible. (105) Because of it, information can be readily and quickly exchanged: first, by the law firm that put together the questionnaire and, then, by the responders who submitted their answers. Very little effort is required by the responders, particularly when compared to what must be done by those attracted by a traditional advertisement.
There is no need to make an appointment, go to the lawyer's office, perhaps wait, and then have a face-to-face conference. With a few moments work on the questionnaire and a click of the mouse, contact with counsel is made. A law firm might expect a flood of online responses, unlike what may occur after a newspaper advertisement is placed. Compared with traditional advertising, the web-questionnaire better targets its market, has broader coverage, and makes it far easier for contact to occur. It is not likely that a newspaper advertisement will draw thousands to the law firm's waiting room.
What makes Internet questionnaire advertising legitimate is applicability to it of traditional principles of the attorney-client privilege. As noted earlier, information conveyed during an initial intake meeting may be privileged even though no attorney-client relationship was ever formed. (106) Of course, if at the meeting's outset counsel told the prospect that what passed between them would not be held in confidence, then no privilege would arise. (107) The prospective client would be forewarned about the risks of candor and could, thus, not reasonably expect confidentiality. (108)
The same blueprint was used by the Ninth Circuit when evaluating the Internet questionnaire advisory. (109) To dispel the perception that responses would be confidential, a clearly written advisory provision should have been posted alongside the questionnaire. (110) Such a provision would have the same effect as an attorney advising a prospective client at their initial meeting that any information conveyed would not be confidential. (111) The privilege doctrine's expansion of "client" beyond a contract relationship would, consequently, not likely arise.
Thus, like an initial meeting with a prospective client, whose communications with counsel may be privileged, responding to a targeted Internet questionnaire carries with it the same presumption that full information disclosure should be fostered and subsequently that the privilege should attach. (112) This recognition of the equivalence of Internet questionnaires with the traditional two-step solicit-screen approach validates a new form of attorney-client contact arising from modern technology. (113) The power of the Internet can thus be used to build a practice effectively and efficiently without compromising the confidentiality of information provided by online responders.
2. Flexibility of the Attorney-Client Privilege
As noted earlier, attorney-client privilege is an exception to the principle that all information be provided to the decision-maker. (114) However, since access to all available information increases the likelihood of a just result, the privilege is not expansively applied. (115) Nonetheless, the doctrine is not rigid, unyielding, or inflexible, and encouraging client candor seems to demand accommodation. (116) Thus, the doctrine's elements are supple enough to handle unconventional situations. (117)
Take the corporation-as-client, for example. (118) A corporation can act only through its members, none of whom are protected by the corporation's privilege, except through their corporate-related roles. (119) Applying the privilege in such a setting requires flexibility and sensitivity to the nature of the corporate organizational form. (120) Consequently, issues such as who may communicate on the corporation's behalf, who controls the corporation's privilege, and even how to untangle the privilege when shareholders in litigation with its directors seek access to the corporation's privileged materials have been resolved by accommodating the purpose of the privilege with the structure of the corporate organizational form. (121)
A similar approach was used in Barton to assess application of the privilege to responses to attorney Internet advertising questionnaires. (122) Flexibility and a focus on the goals of the privilege doctrine were also the key in Barton. (123) The give-and-take between counsel and a potential client that occurs in a face-to-face initial intake meeting and which may either confirm or dispel the potential client's expectation of legal representation is missing in the web-questionnaire setting. The attorney is unable for any Internet-generated contact to address those expectations as the particular situation may require. All communication by counsel is generic, posted on the web page, and conveyed to one and all, whether a responder later becomes a client or not.
The questionnaire in Barton is illustrative. (124) The law firm was trying to do several things in the few words of its advisory. First, the firm attempted to explain its purpose, which was seeking information about those injured from taking Paxil. (125) Second it attempted to ensure that responders would not be lulled into thinking that submitting the questionnaire was all that it took to secure legal representation. (126) Third, the questionnaire served to alert those who would end up becoming clients. (127) Not surprisingly, the Ninth Circuit's Barton decision found the questionnaire advisory to be confusing and ambiguous. (128)
The web-questionnaire's contents needed to serve several purposes precisely because the Internet's electronic contact substituted for face-to-face interaction. As the Ninth Circuit stated:
By finding that the privilege applied, the court molded applicable principles of the attorney-client privilege to Internet advertising questionnaires. (130) These principles do not change to fit a growing technological medium of communication, but are flexible enough to permit the Internet solicitation of clientele. (131)
After examining the advisory language in the questionnaire, the court concluded that the vagueness and ambiguity of the questionnaire might confuse a layman as to "what commitments [the firm] did and did not make" with respect to the confidentiality of his or her responses. (132) For a firm to avoid needless litigation, it should explicitly address those commitments. (133) Further, all three purposes of the attorney-client communication would have to be disclaimed by the potential client for there to be a waiver of the privilege. (134) Specific language is needed to disclaim a client's reasonable expectation of confidentiality. (135) Hence, the privilege is presumed to apply unless waived by the questionnaire's advisory in unambiguous terms. (136) A mere inference of no confidentiality would not suffice. (137)
This flexibility in applying the privilege encourages such web-based initial contact communications. Potential clients can respond candidly without fear that an adversary may discover what they write. Further, by encouraging full-bodied responses, the privilege enables attorneys to screen web responses more accurately by providing thorough information. Thus, the process is more akin to in-office interviews of potential clients, better serving the Internet clients.
3. Web-Questionnaire Content
The third insight drawn from the Ninth Circuit's Barton decision concerns the web-questionnaire's content. (138) The drafting problem underlying the dispute was the lack of clarity in the advisory language. (139) Although the Ninth Circuit resolved the ambiguity in favor of the privilege, the wording of similar Internet questionnaire advisories in the future should be reconsidered. As the Ninth Circuit pointed out, "[a] risky and expensive trip to this court could have been avoided by a plain English explanation on the website." (140)
To that end, the following redraft of the advisory language of the questionnaire in Barton will be offered. The redraft removes some legal terminology from the original, adds a confidentiality reference, and carries forward the multipurpose focus of the information provided to the responders. It retains most of the original language. It provides:
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