INTRODUCTION
Interesting concoctions often come about when different ingredients
combine: take light and shadow, for example, or seeds and soil. Gin and
vermouth also come to mind. In law, one can observe the interplay
between attorney advertising and the Internet.
During the past thirty years, advertising by attorneys has
proliferated. (1) Lawyers commonly use billboards, television, radio and
various print-outlets to promote their practices. (2) The Internet has
seen its share of attorney advertising, too. (3) The question is no
longer whether such techniques are permissible. Instead, one merely
evaluates them for their marketing effectiveness.
Traditionally, attorney advertisements might promote the law firm
or its practice specialty and invite the viewer to call a toll-free
telephone number or make an appointment. (4) In that way, these
advertisements were similar to typical product promotions--one-way
communications by the seller that required a separate contact-action by
the viewer, such as a visit to the store to buy a touted soft drink.
There was no seller-buyer interaction from the advertising alone.
However, the Internet has created a different environment, one in
which the advertiser and viewer could have much closer contact. For
example, the viewer could respond directly to the advertisement (e.g.,
buy the product, right then, instead of having to go to a store to do
so). The Internet has narrowed the distance between seller and buyer and
dramatically increased the ease of fostering transactions between them.
One method attorneys have used is an online questionnaire aimed at
a targeted prospective-client group. (5) Those in financial difficulty
could become bankruptcy clients; the injured, tort plaintiffs, and so
on. Web-surfers could easily find a well designed online questionnaire
using customary keyword or phrase search methods. Answers to the
questionnaire could be sent instantaneously directly to the law firm.
Thereafter, counsel could review the responses to separate the appealing
potential clients from the unwanted. There would be no need for an
appointment, telephone conference, or other personal attorney-client
contact.
However, a question arises concerning the status of those
electronic responses. Unlike online surveys that one submits to
booksellers or to providers of music downloads, information conveyed by
clients to their attorneys is protected by the attorney-client
privilege. (6) Of course, this protection requires that an
attorney-client relationship exist in the first place. (7) If that
relationship cannot be established, then the privilege does not attach
and the information provided to counsel is discoverable. (8) Thus, not
everyone who communicates electronically with an attorney would be
considered a client. Spammers are an all too common example. However,
questionnaire responders raise a far more compelling case.
This article will evaluate whether those who answer a law
firm's online questionnaire should be considered clients for
attorney-client privilege purposes. Further, how such a determination
may affect this method of attorney advertising will also be analyzed. As
a prelude, a brief discussion of the attorney-client privilege will be
provided.
ATTORNEY-CLIENT PRIVILEGE: BRIEF OVERVIEW
The attorney-client privilege can be traced back to Elizabethan
times when changes in trial proceedings made it essential that a
client's communication with counsel remain confidential. (9) Long a
part of British common law, the attorney-client privilege has always
been available in the United States. (10)
The privilege is designed to promote client candor. (11) It does so
by shielding a client's communications with counsel from discovery.
(12) Thus, it is an exception to the adversarial system's
supposition that all relevant information will be available for the
decision-maker to use. (13) Although the attorney-client privilege may
limit available information in a particular case and thus risk a skewed
result, overall it is considered a fundamental feature of the
adversarial system. (14) The rationale may be sketched out as follows.
The law is difficult, if not impossible, to navigate without the
assistance of counsel. (15) Attorneys need complete information from
their clients in order to provide accurate legal advice.(16) However, if
the attorney could later be called as an adverse witness, clients would
soon learn that confiding in their attorneys was a double-edged sword.
(17) Although their own attorneys may be better able to serve them, the
materials provided to enable counsel to do so would be available to
their adversaries as well. Consequently, clients would become wary of
providing information to their attorneys, thereby compromising the
workings of the adversarial system.
However, not every discussion between an attorney and a client
qualifies as privileged. (18) The court in United States v. United Shoe
Machinery Corp. set forth the standard test for determining whether the
privilege applies. (19) The elements of this test may be grouped around
three themes--first, the existence of an attorney-client relationship;
second, the nature of the information communicated; and, third, the
confidentiality of the communication. (20) All components of the test
must be satisfied before an attorney-client privilege arises. (21)
For the purpose of this article, the elements within the second and
third themes will be presumed, for the most part, to exist. After all,
any communication with counsel, whether in person or through an online
questionnaire, must concern legal matters and must be intended as
confidential to be covered by the privilege. (22) A dinner invitation
given to an attorney with copies sent to six others would not qualify as
privileged, irrespective of whether the invitation was conveyed online
or on stationery.
The key here will be United Shoe Machinery's first theme: an
inquiry into the roles of the parties to the communication. (23) For the
communication to qualify as privileged, the attorney must communicate as
a lawyer. (24) For example, the attorney must be admitted to a bar. (25)
Further, the role the attorney occupies must be a legal-practice related
one, such as litigator or legal advisor. (26) Acting in the role of an
accountant, for example, would not qualify even when performed by a
person who has been admitted to a bar. (27)
Similarly, the person who communicates with counsel must be doing
so in the role of a client. (28) Merely providing information to the
attorney does not suffice. (29) Witnesses do that, as do social
acquaintances, though neither are necessarily clients. Clients are those
who seek legal advice and communicate to further that end. (30) However,
for privilege purposes, clients may include those who communicate with
counsel even though no contractual relationship is ever formed between
them. (31) For example, the attorney may decline representation after
learning about a potential client's legal problem, or the potential
client may decide that the attorney's fees are too high. In these
cases, the information-providers would not become contract-clients, but
may well be considered "clients" under the attorney-client
privilege. (32) Their communications with counsel would, therefore, be
protected. (33)
Whether similar treatment should be afforded those who submit
answers to a questionnaire posted by a law firm depends on several
factors. The following sections discuss them.
INTERNET QUESTIONNAIRES AND THE PRIVILEGE
Privileged communications may be accomplished orally or in writing.
(34) In addition, no distinction is made under privilege law whether the
information is conveyed traditionally (e.g., a letter) or electronically
(e.g., e-mail). (35) Thus, clients who send digital messages to their
attorneys may do so confident that the privilege applies. (36) Of
course, as with any communication, the elements of attorney-client
privilege must be satisfied. (37) For example, the email must concern a
legal matter and be submitted confidentially. (38) The person who sends
it must be or seek to become a client. (39)
However, a person's initial responses to an attorney's
online questionnaire are different in an important respect from an
e-mail sent by a client to retained counsel: there is no pre-existing
attorney-client relationship between the online-questionnaire responder
and counsel. The only apparent similarity between the questionnaire
responses and the e-mail is that, in both cases, the messages are sent
electronically.
Further, although retaining counsel is not a privilege
prerequisite, (40) online questionnaire responses are also unlike
communications that occur during an initial intake meeting. At such a
meeting, the attorney and potential client engage in give-and-take.
Counsel may explain the privilege and its confidentiality protection or,
alternatively, dispel any notion that what is said will remain
confidential. Supplementary explanations may be given if the potential
client is confused. Information would be provided by the potential
client, too, so that the attorney can assess the matter.
In addition, counsel would be on the alert for unsuitable clients,
say, those who would create an ethical conflict of interest or those who
may be perpetually dissatisfied and become malpractice claim risks.
These may be weeded out during the intake. Consequently, providing
privilege protection for initial intake communications makes sense. (41)
The meeting would not be effective on any level if potential clients
were reluctant to provide counsel with necessary information. (42)
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.
The attorney-client privilege, the Ninth Circuit stated, should not
have its protections so readily overcome. (89) The privilege belongs to
the client and it is the client's reasonable expectations that
should drive its applicability. (90) Thus, ambiguous, vague
questionnaire advisory language subject to different interpretations
should not result in clients foregoing what would otherwise be
privileged communications. (91) Clarity and straightforwardness should
be required before the potential client can be presumed to have
relinquished the confidentiality protection that privilege provides.
(92) Since the advisory language in Barton was not sufficient to
accomplish this purpose, the responses were found to be privileged. (93)
THREE IMPLICATIONS FOR ATTORNEY INTERNET QUESTIONNAIRES
The Ninth Circuit's decision in Barton provides several
important insights about attorneys' use of Internet questionnaires:
that attorney questionnaires on the Internet are a legitimate
advertising tool, (94) that the attorney-client privilege is flexible,
(95) and that the use of clear language in an Internet questionnaire
could ensure both that there be no reasonable expectation that a formal
attorney-client relationship result merely by responding and that
confidentiality with respect to responses would, nonetheless, not be
waived. (96) These insights may be seen as guidelines that can be
followed in future legal advertising on the Internet. Further, the
court's support of the privilege made it clear that the
doctrine's protection of confidentiality can accommodate new forms
of technology-driven communications. (97)
1. 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:
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. The change 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. (129)
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:
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:
The desirability of protecting confidential communications between
attorney and client as a matter of public policy is too well known
and has been too often recognized by text-books and courts to need
extended comment now. If such communications were required to be
made the subject of examination and publication, such an enactment
would be a practical prohibition upon professional advice and
assistance.
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:
The object of the rule, protecting privileged communications from
being disclosed by attorney or counsel, is to secure to parties
who have confided the facts of their cases to their professional
advisors, as such, the benefit of secrecy in relation to such
communications; so that the client may disclose the whole of his
case to his professional advisor, without any danger that the
facts thus communicated to his attorney or counsel will be used in
evidence against him, without his own consent.
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:
[S]o numerous and complex are the laws by which the rights and
duties of citizens are governed, so important is it that they
should be permitted to avail themselves of the superior skill and
learning of those who are sanctioned by the law as its ministers
and expounders, both in ascertaining their rights in the country,
and maintaining them most safely in courts, without publishing
those facts, which they have a right to keep secret, but which must
be disclosed to a legal adviser and advocate, to enable him
successfully to perform the duties of his office, that the law has
considered it the wisest policy to encourage and sanction this
confidence, by requiring that on such facts the mouth of the
attorney shall be for ever sealed.
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:
The privilege applies only if (1) the asserted holder of the
privilege is or sought to be come a client; (2) the person to whom
the communication was made (a) is a member of the bar of a court,
or his subordinate and (b) in connection with this communication is
acting as a lawyer; (3) the communication relates to a fact of which
the attorney was informed (a) by his client (b) without the presence
of strangers (c) for the purpose of securing primarily either (i)
an opinion on law or (ii) legal services or (iii) assistance in
some legal proceeding, and not (d) for the purpose of committing a
crime or tort; and (4) the privilege has been (a) claimed
and (b) not waived by the client.
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:
In sum, the court is satisfied that Great Plains' attorney was
acting in his capacity as an attorney during the relevant portions
of the board meetings. The advice rendered by Great Plains'
attorney required the skill and expertise of an attorney. In
addition, it appears clear from the minutes of the board meetings
that the purpose of the conversations during the board meetings
was to render legal advice, and that both Great Plains and its
attorney understood that the purpose of the communications was to
review and consider legal issues pertaining to Great Plains'
litigation with MRB.
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").
(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:
The purpose of this questionnaire is to gather information bout
[sic] potential class members who have suffered withdrawal
symptoms as a result of stopping the use of Paxil or decreasing
the dose of Paxil in an effort to stop taking it. We will also use
your contact information to keep you updated on developments of
the litigation including whether a class is certified, either
formally or for settlement purposes. If you believe that you or a
loved one has been adversely affected by GlaxoSmithKline, the
makers of Paxil (generically known as Paroxetine), please fill out
the form below[.]
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:
I agree that the above does not constitute a request for legal
advice and that I am not forming an attorney client relationship
by submitting this information. I understand that I may only
retain an attorney by entering into a fee agreement, and that I am
not hereby entering into a fee agreement. I agree that any
information that I will receive in response to the above
questionnaire is general information and I will not be charged
for a response to this submission. I further understand that the
law for each state may vary, and therefore, I will not rely upon
this information as legal advice. Since this matter may require
advice regarding my home state, I agree that local counsel may be
contacted for referral of this matter.
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:
The check box on the law firm's website protected the law firm by
requiring the questionnaire submitter to disclaim a purpose of
"request[ing] legal advice," and to acknowledge that the submitter
is not "forming an attorney client relationship" by sending in
the answers. But the box does not disclaim the purpose of "securing
legal service." The questionnaire is designed so that a person
filling it out and submitting it is likely to think that he is
requesting that the law firm include him in the class action
mentioned at the beginning of the form.
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