Are We There Yet? Is Email Really Still Different?
Published on December 4, 2012
Attorney at Work is a great blog with lots of useful tips and ideas to improve a law practice. I highly recommend that you check it out. But a recent post by Ruth Carter titled Five Law Firm Website Turnoffs started a discussion among my fellow PMAs around the country about ethics and best practices for lawyer websites. Some of us weren’t sure we could agree with part of her advice.
One of Ms. Carter’s website turnoffs is the failure to provide lawyers’ email addresses on a firm’s website. In the past many of us have advised that, in order to protect themselves from receiving email with unsolicited confidential information which might create a perceived attorney-client relationship or conflict of interest, lawyers’ websites should not post email addresses. Instead, we had counseled, they should use a contact form that requires potential clients to read and confirm their understanding of a disclaimer stating that sending confidential information will not create an attorney-client relationship and will not prevent the firm from representing an opposing party or using the unsolicited information. Requiring a “click through” acknowledgement is, after all, the only way that you can establish that the potential client saw and read such a disclaimer before sending the information.
Is this overkill? After all, you’d be hard pressed to find a lawyer anywhere who posts a sign in front of his or her office saying, “Sending unsolicited mail to this office through the U. S. Postal Service or making unsolicited telephone calls to me will not create an attorney-client relationship and will not prevent me from representing an opposing party or using the information against you in the future.”
Do we really need a different standard for email and snail mail or phone calls? Logic would seem to say not, but the bottom line is that, briefly inconvenient though it may be, using a click-through disclaimer acknowledgement on your website can save you a world of potential ethical trouble, not to mention help deter spammers. There are plenty of other ways your colleagues can get your email address if needed, such as looking you up in the bar’s online directory.
Eventually, ethics advisory bodies will likely come to view email as being just like any other form of communication, but I don’t think we’re quite there yet. For the time being, I’ll continue to recommend click-through disclaimers, before revealing a lawyer’s email address on his or her website, as a best practice.