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

Purpose of the Questionnaire: The purpose of this questionnaire is to gather information about those who have suffered withdrawal symptoms after stopping the use of Paxil or after decreasing the dose of Paxil in an effort to stop taking it. Paxil is generically known as Paroxetine. We are a law firm engaged in litigation with the makers of Paxil concerning these problems. If you or a loved one have had these symptoms, please fill out the form below. (141)

Use of the Information You Provide: The information that you give on the questionnaire below will be kept confidential whether or not you hire our law firm to represent you. In either situation, we will use your contact information to keep you informed about developments in our lawsuit against the makers of Paxil. (142)

The original language of the "'yes' box acknowledgment" (143) should be changed only to add, "I intend that my responses to the questionnaire be kept confidential by the law firm whether or not I hire it to represent me."

This suggested redraft serves three functions. First, by removing legal terminology from the Barton advisory, it makes the proposed advisory, overall, more readily understandable to a responder. With fewer technical terms, it is less likely that confusion will arise. Second, the redraft emphasizes that no attorney-client relationship will be formed merely by responding. Finally, by using the word "confidential" and by affirming its expectation, the redraft dispels any inference that the responder disclaimed confidentiality, as the district court found in Barton. (144)

CONCLUSION

Advertising has been a permitted part of legal practice for nearly thirty years. (145) Print, broadcast and, now, the Internet have been used to attract clients. (146) Traditionally, advertising led to a personal contact from which an attorney-client relationship may follow. Although not every prospect becomes a client, the information provided to the attorney during the initial contact meeting is considered protected by the attorney-client privilege. (147) The Internet has provided a means by which the advertising-solicitation and contact-screening steps could be combined. However, as Barton v. District Court showed, this combination may raise questions about the applicability of the attorney-client privilege. (148)

This article reviewed the Barton decision and its implications for web-posted questionnaires. Since Internet advertising can be an effective way for attorneys and potential clients to make contact, it is important that the attorney-client privilege apply as it does in traditional settings. Barton provides a good model for molding privilege doctrine to the new technology.

(1.) Steven K. Berenson, Is It Time for Lawyer Profiles?, 70 FORDHAM L. REV. 645, 653 & n.61 (2001) (proliferation of attorney advertising since blanket prohibition held unconstitutional in Bates v. State Bar of Arizona, 433 U.S. 350, 382-83 (1977)).

(2.) Vanessa S. Browne-Barbour, Lawyer and Law Firm Web Pages as Advertising: Proposed Guidelines, 28 RUTGERS COMPUTER & TECH. L.J. 275, 287 n.52 (2002).

(3.) Id. at 282 (mentioning that "more than fifty percent of large firms and more than ten percent of small firms use the Internet to market legal services").

(4.) See Bates, 433 U.S. at 367 n.18 (guidelines for permissible advertisement (citing MODEL CODE OF PROF'L RESPONSIBILITY DR 2-102(A)(6) (1976)).

(5.) See, e.g., Barton v. U.S. Dist. Court, 410 F.3d 1104, 1106 (9th Cir. 2005) (questionnaire sought information from potential class members for contemplated class action against manufacturer of the medication Paxil).

(6.) See United States v. United Shoe Mach. Corp., 89 F. Supp. 357, 358-59 (D. Mass. 1950). See generally JOHN GERGACZ, ATTORNEY-CORPORATE CLIENT PRIVILEGE (3d ed. 2006), for a discussion of the attorney-client privilege.

(7.) United States v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982) (citing United States v. Bump, 605 F.2d 548, 551 (10th Cir. 1979); United States v. Stern, 511 F.2d 1364, 1367 (2d Cir. 1975); In re Horowitz, 482 F.2d 72, 81-82 (2d Cir. 1973)).

(8.) See id. An express or implied attorney-client relationship must be found before privilege will arise. See id. (citing United Shoe Mach. Corp., 89 F. Supp. at 358-59). That is, the privilege may arise even if no formal contractual relationship is established. See id. A commonly used test for identifying an implied relationship may be stated as follows: "To establish an implied attorney-client relationship 'a party must show (1) that it submitted confidential information to a lawyer, and (2) that it did so with the reasonable belief that the lawyer was acting as the party's attorney." Montgomery Acad. v. Kohn, 50 F. Supp. 2d 344, 350 (D.N.J. 1999) (citing Pain Prevention Lab, Inc. v. Elec. Waveform Labs, Inc., 657 F. Supp. 1486, 1495 (N.D. Ill. 1987); Guerrero v. Bluebeard's Castle Hotel Inc., 982 F. Supp. 343, 347 (D.V.I. 1997)). The key in this test is the reasonable belief of the person communicating with counsel. See id. For further discussion of application of the privilege in the context of an implied attorney-client relationship, see generally Kenneth D. Agran, The Treacherous Path to the Diamond-Studded Tiara. Ethical Dilemmas in Legal Beauty Contests, 9 GEO. J. LEGAL ETHICS 1307 (1996); RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS [section] 72 (2000); GERGACZ, supra note 6, at [subsection] 2.10-2.12.

(9.) See 8 JOHN HENRY WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW [section] 2290 (John T. McNaughton ed., rev. ed. 1961). For a discussion of the history and purpose of the privilege, see generally id.; Geoffrey C. Hazard, Jr., An Historical Perspective on the Attorney-Client Privilege, 66 CAL. L. REV. 1061 (1978); Max Radin, The Privilege of Confidential Communication Between Lawyer and Client, 16 CAL. L. REV. 487 (1928).

(10.) See 8 WIGMORE, supra note 9, at [section] 2290. In United States v. Louisville & Nashville R.R. Co., the Court asserted:

236 U.S. 318, 336 (1914) (citing Conn. Mut. Life Ins. Co. v. Schaefer, 94 U.S. 457, 458 (1876); Blackburn v. Crawfords, 70 U.S. 175, 192 (1865)).

(11.) See Upjohn v. United States, 449 U.S. 383, 389 (1981). Courts have often noted this purpose of the privilege, even in early opinions, e.g., Crosby v. Berger, 11 Paige Ch. 377, 378 (N.Y. Ch. 1844). The Crosby court explained:

Id.

(12.) Crosby, 11 Paige Ch. at 378-9.

(13.) See United States v. Bryan, 339 U.S. 323, 331 (1950) (noting the "fundamental maxim that the public ... has a right to every man's evidence" (quoting 8 WIGMORE, supra note 9, at [section] 2192)).

(14.) See Barton v. U.S. Dist. Court, 410 F.3d 1104, 1112 (9th Cir. 2005) ("fundamental importance of the attorney-client privilege to our adversarial system of justice"); United States v. United Shoe Mach. Corp., 89 F. Supp. 357, 358 (D. Mass. 1950) ("The social good derived from the proper performance of the functions of lawyers acting for their clients is believed to outweigh the harm that may come from the suppression of the evidence in specific cases." (quoting MODEL CODE OF EVIDENCE R. 210 cmt. (1942))); see also Hatton v. Robinson, 31 Mass. (14 Pick.) 416, 422 (1833). The court in Hatton stated:

31 Mass. (14 Pick.) at 422.

(15.) See United Shoe Mach. Corp., 89 F. Supp. at 358 ("In a society as complicated in structure as ours and governed by laws as complex and detailed as those imposed upon us, expert legal advice is essential." (quoting MODEL CODE OF EVIDENCE R. 210 cmt. (1942))).

(16.) See Upjohn, 449 U.S. at 389.

(17.) See Hunt v. Blackburn, 128 U.S. 464, 470 (1888) (explaining that "assistance [of an attorney] can only be safely and readily availed of when free from the consequences ... of disclosure").

(18.) See United States v. Costanzo, 625 F.2d 465, 468 (3d Cir. 1980) (citing Diversified Indus., Inc. v. Meredith, 572 F.2d 596, 602 (8th Cir. 1977)).

(19.) 89 F. Supp. at 358-59. The court stated:

Id.

(20.) See id.

(21.) Id.

(22.) See id.

(23.) Id. at 359-61.

(24.) Id. at 358.

(25.) United Shoe Mach. Corp., 89 F. Supp. at 358; see also GERGACZ, supra note 6, at [section] 3.21.

(26.) See, e.g., Great Plains Mut. Ins. Co. v. Mut. Reinsurance Bureau, 150 F.R.D. 193, 197 (D. Kan. 1993); see also GERGACZ, supra note 6, at [section] 3.23. The court in Great Plains Mutual Insurance Co. concluded:

150 F.R.D. at 197 (citing JOHN GERGACZ, ATTORNEY-CORPORATE CLIENT PRIVILEGE [section] 3.02(2)(a)(iv) (2d ed. 1990)).

(27.) See, e.g., United States v. Frederick, 182 F.3d 496, 500 (7th Cir. 1999).

(28.) See United Shoe Mach. Corp., 89 F. Supp. at 358.

(29.) See Diversified Indus., Inc. v. Meredith, 572 F.2d 596, 602 (8th Cir. 1977) ("communication is not privileged simply because it is made by or to a person who happens to be a lawyer"). For example, the privilege would not arise where the person communicating with counsel is merely an independent witness. See, e.g., Martin v. Workers' Comp. Appeals Bd., 69 Cal. Rptr. 2d 138, 147 (Ct. App. 1997); Leer v. Chi., Milwaukee, St. Paul & Pac. R.R., 308 N.W.2d 305, 309 (Minn. 1981).

(30.) See United Shoe Mach. Corp., 89 F. Supp. at 358; see also GERGACZ, supra note 6, at [subsection] 2.10-2.11.

(31.) See People v. Canfield, 12 Cal. 3d 699, 705 (1974) (citing Sullivan v. Superior Court, 105 Cal. Rptr. 241 (Ct. App. 1972)).

(32.) See id.

(33.) See id.

(34.) Haines v. Liggett Group Inc., 975 F.2d 81, 90 (3d Cir. 1992) (citing 8 WIGMORE, supra note 9, at [section] 2290; United States v. Liebman, 742 F.2d 807, 810 (3d Cir. 1984)).

(35.) State ex rel. Med. Assurance of W. Va., Inc. v. Recht, 583 S.E.2d 80, 88 (W. Va. 2003) ("Communications are protected whether they are made verbally or in writing, including electronic mail messages and facsimile transmissions").

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