The proposed amendment to Comment 2
of Rule 1.18, seeks to clarify the circumstances under which a communication by
a visitor to a law firm's Web site can transform the "visitor" into a
"prospective client." Proposed Comment 2 describes a firm's Web site
that merely provides general legal information and sets forth the lawyer's
education, experience, and practice areas. E-mailing information to that
firm most likely will not transform the visitor into a prospective client.
However, if a firm's Web site goes further and specifically requests or invites
the visitor to submit information "without clear and reasonably
understandable warnings and cautionary statements that limit the lawyer's
obligations,” then a submission "likely” will constitute a consultation
and establish a prospective client relationship.
ABA Formal Opinion 10-467 (here), suggests
that a Web site disclaimer warn visitors that (1) sending information does not
create an attorney-client relationship; (2) information sent is not
confidential; (3) no legal advice has been given; and (4) the firm will not be
prohibited from representing an adverse party. To be effective, the disclaimer must
be conspicuously placed and in language understandable to a reasonable person.
Regardless of whether the Supreme
Court adopts the proposed amendment to Comment 2, it may be a good time
for law firms to check their disclaimers against the requirements of ABA Formal
Opinion 10-467. And if the proposed amendment is adopted, it may be appropriate
to add to the disclaimer that sending a communication does not create an
attorney-client relationship or an attorney-prospective client
relationship.
