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.