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

(36.) See id.

(37.) See United States v. United Shoe Mach. Corp., 89 F. Supp. at 358-59 (1950).

(38.) See id.

(39.) See id.

(40.) Barton v. U.S. Dist. Court, 410 F.3d 1104, 1111 (9th Cir. 2005).

(41.) See Barton, 410 F.3d at 1111.

(42.) See id. (stating that, without application of the privilege to communications made during initial intake meetings, "people could not safely bring their problems to lawyers unless the lawyers had already been retained").

(43.) See, e.g., Bates v. State Bar of Ariz., 433 U.S. 350, 367 n.18 (1977) (description of advertisement).

(44.) See Barton, 410 F.3d at 1111-12 (privilege applies "when the communication between a lawyer and possible client proceeds 'beyond initial or peripheral contacts'" (quoting People v. Gionis, 892 P.2d 1199, 1205 (Cal. 1995)).

(45.) See id. at 1106-07.

(46.) See id. at 1107.

(47.) See id. (firm "was careful to avoid committing itself to an attorney-client relationship").

(48.) 410 F. 3d 1104 (9th Cir. 2005).

(49.) Id. at 1106.

(50.) See id. at 1108.

(51.) See id. at 1109 (observing that "[w]hat is 'new' about the case is attorneys trolling for clients on the internet and obtaining there the kind of detailed information from large numbers of people that used to be provided only when a potential client physically came into a lawyer's office").

(52.) Id. at 1107.

(53.) Id.

(54.) See id. (mentioning that the firm received thousands of responses).

(55.) See id.

(56.) See id.

(57.) See id.

(58.) Id. at 1111 (citing Beery v. State Bar of Cal., 739 P.2d 1289, 1293 (Cal. 1987)).

(59.) Id.

(60.) See id. (stating that unless privilege covered communications made during initial intake meetings, "people could not safely bring their problems to lawyers unless the lawyers had already been retained").

(61.) See id. at 1112 (noting that "[p]otential clients must be able to tell their lawyers their private business without fear of disclosure").

(62.) Id. at 1107 & n.4. Thetext states:

Id. at 1107 n.4.

(63.) Id. at 1107.

(64.) Id.

(65.) Id. at 1107 n.4.

(66.) See id. at 1107 & n.5. The acknowledgment states:

Id. at 1107 n.5.

(67.) See id.

(68.) Id.

(69.) Id.

(70.) Id. at 1107.

(71.) Id. at 1108.

(72.) Id. ("The district court concluded that the plaintiff's attorneys could not assert the attorney-client privilege against the defendants when they insisted on a 'disclaimer of confidentiality' to protect themselves"). (73.) See id.

(74.) Id. at 1106.

(75.) See id. at 1107 nn.4 & 5 (quoting the advisory language within the questionnaire).

(76.) See id.

(77.) See id. at 1110 (concluding that "the words just do not say what the district court thought they said, that 'confidentiality' was waived").

(78.) See id. at 1107 & n.5.

(79.) See id. at 1107 & nn.4 & 5.

(80.) See id. at 1111 (privilege applicable to communications made during preliminary consultations). (81.) Id. at 1107.

(82.) See id. at 1107 n.5.

(83.) Indeed, one could hardly expect a person to keep an appointment with an attorney if, when making it, he was told that the attorney would refuse representation. The potential client would likely seek out another attorney instead.

(84.) Barton, 410 F.3d at 1110 (describing questionnaire as ambiguous).

(85.) Id.

(86.) Id.

(87.) See id. at 1107& nn.4 & 5.

(88.) See id. at 1110. The Ninth Circuit described the questionnaire:

Id. at 1111.

(89.) See id. at 1112 (noting that it was "influenced by how fundamental the lawyer-client privilege is to the operation of an adversarial legal system").

(90.) See id. at 1110 (reasoning that its "focus is on the clients' right, not the lawyers'").

(91.) See id.

(92.) See id. (stating that "the law firm should have spoken clearly to the laymen to whom its website was addressed about what commitments it did and did not make").

(93.) See id. at 1110-11.

(94.) See discussion infra pp. 32-34.

(95.) See discussion infra pp. 34-37.

(96.) See discussion infra pp. 37-38.

(97.) See Barton, 410 F.3d at 1112 (noting that "changes in ... technology that allow lawyers to solicit clients on the internet ... do not change the applicable principles" of the privilege).

(98.) See id. at 1111-12 (noting that "[t]here would be no room for confusion had the communication been in the traditional context of a potential client going into a lawyer's office and talking to the lawyer").

(99.) See id.

(100.) See id. at 1106-07.

(101.) See id. at 1109 (questionnaire as advertising).

(102.) See id. at 1106-07.

(103.) See id. at 1107 (noting the "many thousands of responses").

(104.) See id. at 1106.

(105.) See generally Browne-Barbour, supra note 2, at 279-82 (discussing the advantages of attorney websites for advertising and communication).

(106.) Barton, 410 F.3d at 1111.

(107.) Cf. id. at 1111 (noting that privilege would not apply if attorney explicitly warned at outset of intake meeting that he would not represent the individual).

(108.) Cf. id.

(109.) See id. at 1111-12.

(110.) See id. at 1110 (noting that a "risky and expensive trip to this court could have been avoided by a plain English explanation on the website").

(111.) Cf. id. at 1111 (noting that privilege would not apply if attorney explicitly warned at outset of intake meeting that he would not represent the individual).

(112.) See id. at 1111.

(113.) See id at 1112 (stating that "changes in ... technology that allow lawyers to solicit clients on the internet ... do not change the applicable principles").

(114.) See United States v. Bryan, 339 U.S. 323, 331 (1950) (citing 8 WIGMORE, supra note 9, at [section] 2192).

(115.) See United States v. United Shoe Mach. Corp., 89 F. Supp. 357, 358 (D. Mass. 1950).

(116.) See Barton, 410 F.3d at 1112.

(117.) See id.

(118.) See generally Upjohn v. United States, 449 U.S. 383 (1981) (application of privilege where client is a corporation).

(119.) See Commodity Futures Trading Comm'n v. Weintraub, 471 U.S. 343, 348 (1985).

(120.) See Upjohn, 449 U.S. at 396-97 (indicating that application of privilege must be determined on case-by-case basis).

(121.) Id. at 391 (who may communicate on a corporation's behalf); Weintraub, 471 U.S. at 348-49 (control of a corporation's privilege); Garner v. Wolfinbarger, 430 F.2d 1093, 1095 (5th Cir. 1970) (shareholder access to corporation's privileged materials).

(122.) See Barton, 410 F.3d at 1111-12.

(123.) See id.

(124.) Id. at 1107 & nn.4 & 5.

(125.) See id. at 1107 & n.4.

(126.) See id. at 1107 & n.5. Thus, the firm could avoid potential malpractice claims brought by those respondents with whom the firm would not have represented if the parties had met face-to-face. Id. at 1107.

(127.) See id. at 1107 & nn.4 & 5.

(128.) Id. at 1110.

(129.) Id. at 1112.

(130.) See id. at 1111-12.

(131.) See id. at 1112.

(132.) Id. at 1110.

(133.) See id.

(134.) See id. at 1111 ("retaining the lawyer, securing legal service, or securing advice").

(135.) See id. at 1110.

(136.) See id (unless confidentiality disclaimed, communication presumed to have been made in confidence if during the course of attorney-client relationship).

(137.) See id. (noting that an explicit "statement on the questionnaire that it is intended to be 'confidential' is not required").

(138.) See id. at 1110.

(139.) Id.

(140.) Id. at 1110.

(141.) Compare with id at 1107 n.4.

(142.) Compare with id.

(143.) Id. at 1107 n.5.

(144.) Id. at 1108.

(145.) Berenson, supra note 1, at 653 & n.61.

(146.) Browne-Barbour, supra note 2, at 282, 287 n.52.

(147.) Barton, 410 F.3d at 1111-12.

(148.) Id. at 1112 ("There would be no room for confusion had the communication been in the traditional context of a potential client going into a lawyer's office and talking to the lawyer").

JOHN GERGACZ *

* John Gergacz is a professor at the University of Kansas School of Business.

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