ETHICS UPDATE: WHAT YOU DON’T KNOW WILL HURT YOU

HARRY G. POTTER, III Williams Kherkher Hart Boundas, LLP

8441 Gulf Freeway, Suite 600 Houston, TX 77017-5051

RICHARD C. HILE

Dies & Hile, LLP 1601 Rio Grande, Suite 330

Austin, TX 78701-1149

State Bar of Texas 28th ANNUAL

ADVANCED PERSONAL INJURY COURSE 2012 Dallas – July 11-13

San Antonio – August 8-10 Houston – September 5-7 Houston – October 24-26

CHAPTER 39

RICHARD C. HILE

Dies & Hile, LLP 1601 Rio Grande, Suite 330

Austin, TX 78701-1149 Telephone: (512) 476-4394 Facsimile: (512) 476-4397 Email: rhile@dieshile.com

BIOGRAPHICAL INFORMATION

EDUCATION Lamar University, B.S. Government (1971) Texas Tech University School of Law, J.D. (1974) PROFESSIONAL ACTIVITIES Partner, Dies & Hile, LLP, Austin, Texas (1994-Present) Law Clerk to Judge Joe J. Fisher, Chief Judge, U.S. District Court, Eastern District of Texas (1974-75) President, First Judicial District Bar Association (1983-85) Member: American Board of Trial Advocates: President, Austin Chapter (1997-99) President, TEX-ABOTA (1999-00) Belli Society State Bar of Texas: Chairman, Tort & Compensation Section (1982-83) Member, Board of Directors (1988-91) Chairman, Board of Directors (1990-91) Chairman, Advertising Review Committee (1995-96) Chairman, Referral Fee Task Force (2004) Chairman, Task Force on Additional Resources for Complex Cases (2011) Texas Trial Lawyers Association: Director (1981-87; 1994-95) Tonahill Society Fellow: Sustaining Life Fellow, Texas Bar Foundation International Academy of Trial Lawyers (1988-Present) Director, Texas Center for Legal Ethics (1998-2005) Listed in Best Lawyers of America (1995-2011) Listed in Texas Monthly’s Super Lawyers (2003-11) APPOINTMENTS AND HONORS: Regent, Stephen F. Austin State University (1982-91) Member, Texas Department of Housing and Community Affairs (1991-95) Trustee, St. Stephen’s Episcopal School (1998-2004) Recipient, Distinguished Alumnus Award, Texas Tech University School of Law (1996) Recipient, Presidents’ Award, State Bar of Texas (2004) Recipient, Lola Wright Foundation Award, Texas Bar Foundation (2006)

Harry G. Potter III Williams

Kherkher Hart Boundas, L.L.P. 8441 Gulf Freeway, Suite 600

Houston, Texas 77017 (713) 230-2200

(713) 643-6226 FAX hpotter@williamsdkherkher.com

Mr. Potter is the General Counsel to Williams Kherkher Hart Boundas, L.L.P. in Houston. He is a graduate of the University of Texas School of Law. He is a former Visiting Professor at the University of Texas School of Law where he taught Professional Responsibility. Mr. Potter also served as a Special Assistant Attorney General, where he handled numerous major lawsuits on behalf of the State of Texas, most notably the Texas Tobacco Litigation. Since 2005, Mr. Potter has served on the nine-member Texas Professional Ethics Committee, which issues advisory opinions on compliance with the Texas Disciplinary Rules of Professional Conduct. He also served as a member of the State Bar Grievance Committee for District 9A from 1996 to 2002 and was twice elected Chairman of the Committee. Mr. Potter is a member of the Board of Directors of the Texas Trial Lawyers Association and served on the 2010 Executive Committee.

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TABLE OF CONTENTS

I. SOCIAL MEDIA .................................................................................................................................................... 1 A. Texas Advertising Rules.................................................................................................................................. 1 B. Social Media Sites ........................................................................................................................................... 1 C. Blogs ................................................................................................................................................................ 1 D. Risks Associated with Social Media ............................................................................................................... 1

1. Inadvertently establishing a lawyer-client relationship; .......................................................................... 1 2. Providing legal advice to a non-client without checking for potential conflicts of interest; ................... 1 3. Not having enough oversight about how the firm or lawyers in the firm are being held out to the

public; ...................................................................................................................................................... 1 4. Making snap decisions on new client intake; .......................................................................................... 1 5. Violating rules prohibiting direct solicitation of prospective clients; and ............................................... 1 6. Engaging in the unauthorized practice of law or practicing out of jurisdiction. ...................................... 1

E. Judges Friending Attorneys ............................................................................................................................. 1 F. Social Media and Client Discovery ................................................................................................................. 2

1. Stored Communications Act. ................................................................................................................... 2 2. Court Decisions Regarding Access to Social Media Accounts. .............................................................. 2 3. Revealing Usernames and Passwords. ..................................................................................................... 3 4. Destruction of Social Media Evidence. ................................................................................................... 3 5. Recommendations. .................................................................................................................................. 3

II. DATA EMBEDDED IN ELECTRONIC DOCUMENTS ...................................................................................... 3 A. Duty Imposed on Sender ................................................................................................................................. 3 B. Recipient’s Right to Review or Mine Metadata .............................................................................................. 3 C. Duty to Notify Sender if Metadata is Discovered ........................................................................................... 4 D. American Bar Association Formal Opinions................................................................................................... 4 E. The Commission’s Proposed Revisions to Rules 1.06 and 4.4(b) ................................................................... 4 F. Texas Disciplinary Rules Regarding Metadata ............................................................................................... 5

III. COMMUNICATIONS WITH PROSPECTIVE CLIENTS .................................................................................... 5 A. Law Firm Websites ......................................................................................................................................... 5 B. Confidential Information ................................................................................................................................. 5 C. Website Disclaimers ........................................................................................................................................ 6 D. Communications Through An Intermediary.................................................................................................... 6 E. Implied Attorney-Client Relationship ............................................................................................................. 7 F. ABA Model Rule 1.18, Duties to Prospective Clients .................................................................................... 7 G. Duty to Protect the Confidentiality of Email Communications with One’s Client ......................................... 7 H. Recommendations ........................................................................................................................................... 7

IV. CLIENT’S RIGHT TO COPY OF FILE UPON DISCHARGE OF ATTORNEY ................................................ 7

V. Outsourcing legal and law-related work ................................................................................................................. 8 A. A Lawyer’s Duty When Retaining a Non-Firm Lawyer to Assist in Representing a Client ........................... 8 B. The Use of Non-Lawyer Services Outside the Firm has Proliferated Over the Past Decade .......................... 8 C. Assisting the Unauthorized Practice of Law ................................................................................................... 8

VI. CONCLUSION ....................................................................................................................................................... 8

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TABLE OF AUTHORITIES

Cases American Airlines 972 F.2d 605 (5th Cir. 1992), cert. denied 507 U.S. 912, 113 S. Ct. 1262, 122 L.Ed.2d 659 (1993) ............................................................................................ 9 Arcq v. Fields (Pa. Ct. of Common Pleas) ...................................................................................................................... 3 Crispin v. Audigier, 717 F. Supp.2d 965 (C.D. Ca. 2010) .............................................................................................. 2 In Re: Hunter, Virginia State Bar, 3 Dist. Comm., VSB Docket No. 11-032-084097 (11-8-2011) ........................... 1, 4 Largent v. Reed, No. 2009-1823 (Pa. Ct. of Common Pleas, Nov. 8, 2011) .................................................................. 2 Martin v. Allstate Fire and Casualty Ins. Co., (Pa. Ct. of Common Pleas) .................................................................... 2 Nolan v. Foreman, 665 F.2d 738 (5th Cir. 1982) ........................................................................................................... 7 Parker v. Carnahan, 772 S.W.2d 151, 157 (Tex. App.-Texarkana 1989, writ denied) .................................................. 7 Prigmore v. Hardware Mutual Ins. Co. of Minnesota, 225 S.W.2d 897 (Tex. Civ. App.-Amarillo 1949, no writ) ......................................................................................... 7 Zimmerman v. Weis Markets Inc., 2011 WL 2065410 (Pa. Ct. of Common Pleas) .................................................... 2, 3

Rules ABA Model Rules of Professional Conduct 1.06 cmts [16] and [17] ............................................................................. 4 ABA Model Rules of Professional Conduct 1.1 ............................................................................................................. 8 ABA Model Rules of Professional Conduct 1.18 ........................................................................................................... 7 ABA Model Rules of Professional Conduct 4.4 ............................................................................................................. 4 ABA Model Rules of Professional Conduct 4.4(b)......................................................................................................... 4 ABA Model Rules of Professional Conduct 5.3 ............................................................................................................. 8 ABA Model Rules of Professional Conduct 5.5 ............................................................................................................. 8 ABA Model Rules of Professional Conduct 5.5, cmt 1 .................................................................................................. 8 Mass. Bar Ass’n. Com. On Prof’l Ethics, Op. 07-10 (2007) .......................................................................................... 5 TEX. DISCIPLINARY R. PROF. CONDUCT 1.05(a) cmts. 1-4 ............................................................................................ 6 TEX. DISCIPLINARY R. PROF. CONDUCT 7.04 cmt. 1 (1998)........................................................................................... 1 Tex. R. Civ. P. 193.3(d) .................................................................................................................................................. 5 The Wisconsin Professional Ethics Committee Formal Opinion EF-11-03, 84 Wisconsin Lawyer 9 (September 11, 2011) ........................................................................................................... 6

Periodicals Lindquist, Ethical Duties to Prospective Client Who Send Unsolicited Emails, 5 Shilder J. L. Com. & Tec. 8 (2009) ......................................................................................................................... 5 Professional Ethics Committee, Who Is a Prospective Client?, 84 Wisconsin Lawyer 9 (Sept. 2011) ........................ 11 Schnell, Don’t Just Hit Send: Unsolicited E-Mail and the Attorney-Client Relationship, 17 HARVARD JOURNAL OF LAW & TECHNOLOGY 2, Spring 2004 ............................................................................. 5 Social Networking, Legal Ethics and Lawyer Liability, Jett Hannah, TEX. LAWYERS’ INSURANCE EXCHANGE NEWSLETTER, Issue Number 1, 2010, available at http://www.tlie.org/newsletter/articles/view56 .................................................. 1 Thomas Watkins, Managing Risk, Lawyers and Social Media: What Could Possibly Go Wrong? 85 WISCONSIN LAWYER 5 (2012) ............................................................................................................................... 1 Unsolicited Email and Obligations of Confidentiality, Jett Hanna, TEXAS LAWYERS' INSURANCE EXCHANGE, NEWSLETTER, LOSS PREVENTION, November 2, 2010 ......................... 5 Using Disclaimers to Avoid Disqualification by Receipt of Unsolicited Email from Prospective Clients, 16 Professional Lawyers 1 (No. 3, 2005) ............................................ 7

Ethics and Slip Opinions ABA Ethics Opinion 06-442 ........................................................................................................................................... 4 ABA Formal Opinion 11-459 (August 4, 2011) ............................................................................................................. 7 Ala. Formal Opinion 2007-02 ..................................................................................................................................... 3, 4 Arizona Ethics Op. 07-03 ............................................................................................................................................ 3, 4 Arizona Ethics Opinion 02-04 (09-2002) ....................................................................................................................... 5 Cal. Formal Opinion No. 2007-174 ................................................................................................................................ 8 California Ethics Opinion 2005-168 ............................................................................................................................... 6 California Standing Committee on Professional Responsibility & Conduct, Formal Op. Interim No. 03-001(2005) ....................................................................................................................... 6

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Colorado Bar Association Ethics Committee, Ethics Opinion 119............................................................................. 3, 4 Florida Bar Association Professional Ethics Committee Opinion 07-3 (January 16, 2009) ........................................... 6 Florida Ethics Op. 06-02 ............................................................................................................................................. 3, 4 Florida Judicial Ethics Advisory Committee Opinion 2009-20 ...................................................................................... 2 Iowa State Bar Ass’n. Comm. on Ethics and Practice Guidelines, Ethics Op. 07-01 ..................................................... 6 Iowa State Bar Ass’n. Comm. On Ethics and Practice Guidelines, Op. 07-02 (2007) ................................................... 6 Kentucky Judicial Ethics Opinion JE-119 (January 20, 2010) ....................................................................................... 2 Maine Board of Overseers of the Bar Professional Ethics Commission, Opinion 196 ............................................... 3, 4 Maryland State Bar Association Committee on Ethics, Ethics Docket No. 2007-09 ................................................. 3, 4 Minnesota Lawyers Professional Responsibility Board, Opinion No. 22 ................................................................... 3, 4 New Hampshire Bar Association Ethics Committee, Opinion 2008-2009/4 .............................................................. 3, 4 New York Judicial Ethics Advisory Opinion 08-176 (2008) .......................................................................................... 2 New York State Bar Association, Committee on Professional Ethics, Opinion 749 and 782 .................................... 3, 4 North Carolina Judicial Standards Commission, Inquiry No. 08-234 (April 1, 2009) ................................................... 2 Oklahoma Judicial Ethics Opinion 2011-3 ..................................................................................................................... 2 Pennsylvania Formal Op. 2009-100 ............................................................................................................................ 3, 4 South Carolina Advisory Committee Opinion 17 (2009) ............................................................................................... 2 Vermont Bar Association Professional Responsibility Section Ethics Opinion, 2009-1 ............................................ 3, 4 Virginia State Bar Committee on Legal Ethics Opinion 1842 (2008) ............................................................................ 6 Washington D.C. Bar – Legal Ethics Committee, Opinion 341 ................................................................................. 3, 4 Washington D.C. Bar Opinion 302 (2000) ..................................................................................................................... 7 West Virginia Ethics Opinion 2009-01 ....................................................................................................................... 3, 4

Electronic Media Lester v. Allied Concrete, http://www.ediscoverylaw.com/uploads/file/Lester%20v%20Allied%20Concrete%20090111.pdf (Lester I) ......... 3 Lester v. Allied Concrete, http://www.ediscoverylaw.com/uploads/file/Lester%20v%20Allied%20Concrete%20Final%20Order.pdf............ 3 The Internet and Similar Services Including Home Pages, Interpretive Comment 17, Subsections C-D, State Bar of Texas, Advertising Review Committee (2010), http://www.texasbar.com/Content/NavigationMenu/ForLawyers/ AdvertisingReview/RulesCommentsandOpinions/default.htm .................................................................................. 1

Codes Stored Communications Act (SCA), 18 U.S.C. §2701 ................................................................................................... 2

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ETHICS UPDATE: WHAT YOU DON’T KNOW WILL HURT YOU

I. SOCIAL MEDIA

Social media includes internet-based applications that allow the creation and exchange of user-generated content between organizations, communities and individuals. In the legal services context, the social media platform has become a primary means for marketing one’s law firm and for staying connected to clients. One should not overlook the risks associated when using social media, including “losing control over your message, blurring professional and personal use…creating unrealistic client expectations, and making false or misleading communications about a lawyer’s service.…” Thomas Watkins, Managing Risk, Lawyers and Social Media: What Could Possibly Go Wrong? 85 WISCONSIN LAWYER 5 (2012). A more detailed discussion of the issues associated with the use of social media platforms and potential ethical issues that might arise is included in Social Networking, Legal Ethics and Lawyer Liability, Jett Hannah, TEX. LAWYERS’ INSURANCE EXCHANGE NEWSLETTER, Issue Number 1, 2010, available at http://www.tlie.org/newsletter/articles/view56. A survey of potential issues that might arise while using social media includes: A. Texas Advertising Rules

Part VII of the Texas Disciplinary Rules of Professional Conduct is intended to regulate any communication made for the purpose of obtaining professional employment. See TEX. DISCIPLINARY R. PROF. CONDUCT 7.04 cmt. 1 (1998). These rules clearly apply to social media as reflected in Interpretive Comment 17, The Internet and Similar Services Including Home Pages, State Bar of Texas, Advertising Review Committee (2010), available at http://www.texasbar.com/Content/NavigationMenu/ForLawyers/AdvertisingReview/RulesCommentsandOpinions/default.htm, which addresses the application of advertising rules and information disseminated digitally via the Internet. B. Social Media Sites

Texas Advertising Review Committee, Interpretive Comment 17, Subsection C, addresses Social Media Sites. This provision states, “Landing pages such as those on Facebook, Twitter, LinkedIn, etc. where the landing page is generally available to the public are advertisements…” unless “access is limited to existing clients and personal friends….” Limiting access to one’s site has become more difficult as there is a constant barrage of requests to be “friended,” and Facebook and LinkedIn constantly suggest individuals

that might be allowed access. A better approach if there is any question that the content of the social media site might be construed as an “advertisement” is to create two separate sites -- a personal Facebook site and a firm Facebook site. C. Blogs

Interpretive Comment 17, Subsection D, Blogs, also recognizes that Blogs may be advertisements, and specifically admonishes attorneys to “ensure that such postings do not meet the definition of an advertisement subject to the filing requirements.” While blogs that are educational or informational in nature are not advertisements and need not be filed, lawyers must carefully draft such to ensure that comments do not stray from these limitations. In Re: Hunter, Virginia State Bar, 3 Dist. Comm., VSB Docket No. 11-032-084097 (11-8-2011), is an example of potential ethical problems that might arise when blogging. In Hunter, the Virginia Disciplinary Committee disciplined an attorney for discussing client matters on his blog by revealing a client by name and discussing the client’s positive test result for drug use. The attorney argued that this information was public, came out during the course of trial and therefore not actionable. The disciplinary board found that the fact that both postings involved matters allegedly happening in trial did not invoke a “publicly related and generally known exception” which would have allowed publication of such under Virginia law. D. Risks Associated with Social Media

In his article, Managing Risk, Mr. Watkins identified a number of risks that a lawyer should be aware of when using social media for client development, including:

1. Inadvertently establishing a lawyer-client relationship;

2. Providing legal advice to a non-client without checking for potential conflicts of interest;

3. Not having enough oversight about how the firm or lawyers in the firm are being held out to the public;

4. Making snap decisions on new client intake; 5. Violating rules prohibiting direct solicitation

of prospective clients; and 6. Engaging in the unauthorized practice of law

or practicing out of jurisdiction. E. Judges Friending Attorneys

Lawyers and judges should avoid designating each other as “friends” on Facebook sites as this may constitute ex parte communications and convey an impression that a special relationship exists between

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the two in violation of judicial conduct rules. See North Carolina Judicial Standards Commission, Inquiry No. 08-234 (April 1, 2009). In this matter a sitting judge was reprimanded for communicating with a lawyer in a pending case via Facebook postings. Other states have prohibited lawyers and judges from friending each other. See Florida Judicial Ethics Advisory Committee Opinion 2009-20 (“listing lawyers who may appear before the judge as ‘friend’ on a judge’s social networking page, reasonably convey to others the impression that the lawyer ‘friends’ are in a special position to influence the judge and therefore violate the code of judicial conduct”), and Oklahoma Judicial Ethics Opinion 2011-3. Several states have refused to prohibit a lawyer or judge from friending each other; however, the committees have cautioned judges about creating an appearance of a special relationship.). See Kentucky Judicial Ethics Opinion JE-119 (January 20, 2010) (Designation of a “friend” on a social networking site does not, in and of itself, indicate the degree or intensity of a judge’s relationship with the attorney so as to convey the impression that they are in a special position to influence the judge.), New York Judicial Ethics Advisory Opinion 08-176 (2008) (Judge may belong to internet-based social network, but should exercise discretion and otherwise comply with Rules Governing Judicial Conduct,) and South Carolina Advisory Committee Opinion 17 (2009). Before friending a judge, remember that this might become the basis for recusal in a subsequent trial. F. Social Media and Client Discovery

A litigant’s right to discover information on a parties’ Facebook, MySpace, LinkedIn or other media site has become a controversial issue. These requests invoke a number of issues, including 1) a social media provider’s obligation to provide access to a member’s site or information; 2) whether a user has an expectation of privacy, and 3) whether the user must provide Log-in and password information versus relevant information or documents. 1. Stored Communications Act.

The Stored Communications Act (SCA), 18 U.S.C. §2701, et seq. (1986), does provide limited protection for social media communications in the context of civil cases. One of the first cases to address the scope of SCA was Crispin v. Audigier, 717 F. Supp.2d 965 (C.D. Ca. 2010), which involved a defendant’s civil subpoena served on Facebook, MySpace and Media Temple seeking disclosure of plaintiff’s subscriber information and communications related to the underlying dispute. The federal district court, relying on SCA, quashed the subpoena as it applied to private messages finding that “[t]here is no basis for distinguishing between Media Temple’s

webmail and Facebook’s and MySpace’s private messaging… and traditional web-based email….” There is, however, a distinction between private messages that are protected, and wall postings and comments that are protected only if the information is not readily available to the general public. To determine whether information is available to the public, it is necessary that the court review the plaintiff’s privacy settings. It should also be noted that a) exceptions exist for certain law enforcement and public emergency purposes, b) certain social media providers allow users to leave information available to the public, and c) the SCA does not prohibit persons involved in the communications from revealing such; thus, contents may be discovered if traditional discovery rule requirements are met. The Court also observed that the SCA “was enacted before the advent of the [web] and before introduction of the web browser…” and is woefully out of date. 2. Court Decisions Regarding Access to Social

Media Accounts. Recent court decisions in Pennsylvania highlight

the split of authority regarding whether a social media user has a reasonable expectation of privacy. In Largent v. Reed, No. 2009-1823 (Pa. Ct. of Common Pleas, Nov. 8, 2011), the Court required the plaintiff to produce pages from social media sites, finding that there was no expectation of privacy and only “the foolish could believe that Facebook is an online lockbox of secrets.” See also Zimmerman v. Weis Markets Inc., (Pa. Ct. of Common Pleas), where the Court rejected plaintiff’s privacy argument, finding that “he voluntarily posted all of the pictures...on his Facebook…site to share with other users…, and … cannot now claim he possesses any reasonable expectation of privacy….” The opposite result was reached in Martin v. Allstate Fire and Casualty Ins. Co., (Pa. Ct. of Common Pleas) where the plaintiff in a personal injury suit was asked at her deposition if she used Facebook, and when she said “yes” was asked to provide her password. Her lawyer immediately objected to disclosing this information, and Allstate filed a motion to compel. Plaintiff’s counsel argued that the defendant had failed to establish that any information on the site was relevant to her claim or injuries and absent such there was no basis for disclosure of site contents. Interestingly, not only did the defendant request that the plaintiff turn over her username and password, but also requested that she agree to authorize Facebook to release 17 items on a checklist pertaining to her data and to indemnify Facebook for any damages or costs stemming from the release. See also Arcq v. Fields, (Pa. Ct. of Common Pleas) (The court denied an auto-accident defendant’s motion for access to plaintiff’s social media pages

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stating, “In essence, viewing relevant information on the public profile acts as a gateway to the private profile.”). 3. Revealing Usernames and Passwords.

Revealing one’s username and password, as required in Zimmerman, raises a number of concerns, the most significant being that the information contained therein might have no relationship to the litigation and to information that members of the public previously could not access. Courts have traditionally required litigants to turn over relevant messages, not their log-in credentials. Today, Facebook, MySpace and other social media sites provide a networking system similar to the Internet where some information is password protected while others are available to the public. To give parties access to all information absent proof of relevance or special need should be denied. 4. Destruction of Social Media Evidence.

Destroying social media information is a risky proposition to both client and attorney as evidenced by Lester v. Allied Concrete, http://www.ediscoverylaw.com/uploads/file/Lester%20v%20Allied%20Concrete%20090111.pdf (Lester I) and http://www.ediscoverylaw.com/uploads/file/Lester%20v%20Allied%20Concrete%20Final%20Order.pdf. (Lester II). In this case, plaintiff’s counsel instructed his client to “cleanup” his Facebook and MySpace pages, and to delete photos on the websites. The defendant, prior to trial, requested and the court instructed the jury that the plaintiff had destroyed evidence and that adverse conclusions could be drawn. The jury awarded the plaintiff $2,350,000 for his injuries and $6,227,000 as beneficiary of his wife’s estate, and $1,000,000 to each of the wife’s parents as beneficiaries of her estate. The judge subsequently reduced the award to plaintiff as beneficiary of his wife’s estate on grounds unrelated to spoliation, and subsequently assessed sanctions in the amount of $522,000 against plaintiff’s counsel and $180,000 against the plaintiff. Appeals are currently pending. 5. Recommendations.

First, attorneys should advise clients regarding the need to preserve all social media evidence and to take no action to remove or destroy any information or photographs that discuss or relate to their case without first obtaining their permission. Second, create separate personal and business social media accounts and eliminate possible ethical violations. Third, do not friend judges or allow judges to friend you if you might practice in their court.

II. DATA EMBEDDED IN ELECTRONIC DOCUMENTS Metadata is embedded data in electronics file that

often includes information such as the identity of the author of the document, the date the document was created and/or modified, software used, comments embedded within the content and a record of changes made to the document. The metadata often includes sensitive, confidential or privileged information that must be protected, and inadvertent disclosure can be devastating to a lawyer’s client. There currently is no clear consensus regarding an attorney’s ethical responsibilities regarding metadata. The dissemination of metadata raises three ethical issues: 1) The duty imposed on the sender regarding transmitting metadata; 2) the recipient’s right to review this information; and 3) the recipient’s obligation to notify the sender if metadata is found. Below is a brief survey of ethics opinions from both the state’s and American Bar Association’s ethics committees and applicable rules, and the ABA Commission on Ethics 20/20 (the “Commission”) recommendations. A. Duty Imposed on Sender

A number of jurisdictions have concluded that an attorney has an ethical duty to exercise reasonable care when transmitting electronic documents to ensure that client secrets or confidences are not disclosed. This includes preventing disclosure of metadata. See Ala. Formal Opinion 2007-02, Arizona Ethics Op. 07-03, Colorado Bar Association Ethics Committee, Ethics Opinion 119, Florida Ethics Op. 06-02, Maine Board of Overseers of the Bar Professional Ethics Commission, Opinion 196, Maryland State Bar Association Committee on Ethics, Ethics Docket No. 2007-09, Minnesota Lawyers Professional Responsibility Board, Opinion No. 22, New Hampshire Bar Association Ethics Committee, Opinion 2008-2009/4, New York State Bar Association, Committee on Professional Ethics, Opinion 749 and 782, Pennsylvania Formal Op. 2009-100, Vermont Bar Association Professional Responsibility Section Ethics Opinion, 2009-1, Washington D.C. Bar – Legal Ethics Committee, Opinion 341, and West Virginia Ethics Opinion 2009-01. The West Virginia Opinion also imposes an additional obligation on an attorney to either acquire sufficient understanding of the software that they use or ensure that their office employs safeguards to minimize the risk of inadvertent disclosures. This requirement is also a part of the ABA 20/20 recommendations. B. Recipient’s Right to Review or Mine Metadata

There is a split within ethics committees concerning whether a receiving lawyer has the right to review metadata. A majority of ethics committees

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addressing this issue have concluded that recipients do not have a right to review or mine metadata. See Alabama Formal Op. 2007-02 (a receiving lawyer has an ethical obligation to refrain from mining an electronic document.). See also Arizona Ethics Op. 07-03, Florida Ethics Op. 06-02, Maine Ethics Op. 196, New Hampshire Bar Association – Ethics Committee, Opinion 2008, New York State Bar Association Committee on Professional Ethics, Opinion No. 749, Washington D.C., Bar-Legal Ethics Committee, Opinion 341, West Virginia Bar Association, Lawyer Disciplinary Board, 2009-01. Other jurisdictions allow metadata mining without restrictions provided the sender notifies the recipient of the inadvertent transmission of confidential information before the recipient reviews the metadata. Colorado Ethics Op. 119, Maryland State Bar Association – Committee on Ethics, 2007-09. Vermont Bar Association Professional Responsibility, Ethics Opinion 2009-1 (there is no ethical violation if the recipient reviews or makes use of the metadata without first ascertaining whether the sender intended to include such metadata). Finally, Pennsylvania applies a case-by-case approach evaluating substantive and procedural law while Minnesota has concluded that whether a lawyer may look for metadata is beyond the scope of disciplinary rules. C. Duty to Notify Sender if Metadata is

Discovered A majority of jurisdictions have also concluded

that a recipient who “discovers metadata by any means, and knows or reasonably should know that the sender did not intend to transmit the information, … has a duty to notify the sender and preserve the status quo for a reasonable period of time in order to permit the sender to take protective measures.” Arizona Ethics Op. 07-03, Colorado Ethics Op. 119, Florida Ethics Op. 06-02, Minnesota Lawyer Professional Responsibility Board, Opinion No. 22, New Hampshire Bar Association – Ethics Committee, Opinion 2008-2009/4, New York State Bar Association Committee on Professional Ethics, Opinion 749 and 782, and Formal Opinion 2003-04, Pennsylvania Formal Op. 2009-100, Vermont Bar Association Professional Responsibility Section, Ethics Opinion 2009-1, and Washington D.C., Bar-Legal Ethics Committee, Opinion 341. If the recipient of electronic data concludes that the disclosure of metadata was inadvertent or if uncertain about the sender’s intention to include such, the lawyer must promptly notify the sender of the receipt of the material containing metadata. See Washington D.C. Bar-Legal Ethics Committee Opinion 341.

D. American Bar Association Formal Opinions In ABA Ethics Opinion 06-442, the Committee

concluded that a lawyer is not ethically prohibited from reviewing a sending party’s electronic metadata. Instead, it suggests that attorneys “concerned about the possibility of sending, producing or providing documents that contain or might contain metadata negotiate a confidentiality agreement or send such under different format.” As to recipients, ABA Ethics Opinion EO-06-442 cites Model Rule 4.4(b), which provides that a recipient must notify the sender of the inadvertent transmission of confidential information promptly, but does not require the receiving lawyer either to refrain from examining the material or to abide by the sender’s instructions. E. The Commission’s Proposed Revisions to Rules

1.06 and 4.4(b) The Commission recommends amendments to

Model Rule 1.06 (Confidentiality of Information) and Comments [16] and [17] to this rule, and Model Rule 4.4 (Respect for Rights of Third Persons). The proposed amendment to Model Rule 1.6 includes adding a new subsection [c] that provides “A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.” Additionally, Comment [16], Acting Competently to Preserve Confidentiality, has been revised to require a lawyer to act competently to safeguard information related to the representation of the client against unauthorized access by third parties and against inadvertent or unauthorized disclosure by the lawyer. The comment also states that “[t]he unauthorized access to, or the inadvertent or unauthorized disclosure of, confidential information does not constitute a violation of paragraph (c) if the lawyer has made reasonable efforts to prevent the access or disclosure.” The comment then identifies factors that will be considered in determining whether a lawyer’s efforts were reasonable. Revisions to Model Rule 4.4(b) make clear that the rule not only applies to documents, but also to “electronically stored information.” Additionally, Comment [2] has been modified to address issues such as 1) defining when a document is “inadvertently sent” to include one where the email is misaddressed or accidently included in discovery; 2) recognizing that whether a lawyer is required to take additional steps upon receipt of inadvertently transmitted documents involves “waiver” and is beyond the scope of the rules; 3) noting that receipt of electronic data that contains metadata does not, by itself, mean that such was inadvertently sent; and 4) inappropriately obtained information (the rule does not address the legal duties owed by the recipient lawyer who knows or reasonably should have known

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that the information was inappropriately obtained by the sending lawyer). F. Texas Disciplinary Rules Regarding Metadata

The Texas Disciplinary Rules of Professional Conduct do not address metadata, and the Professional Ethics Committee has not issued an opinion addressing this issue. However, Rule 193.3(d), Texas Rules of Civil Procedure, includes a “snap-back” provision designed to protect the inadvertent disclosure of privileged material during litigation. This rule permits recovery of material or information inadvertently produced to the other side if produced without the intent to waive claims of privilege. III. COMMUNICATIONS WITH PROSPECTIVE

CLIENTS Electronic communications between prospective

clients and lawyers, whether solicited or unsolicited, have created an ethical minefield that lawyers must traverse. Below is a brief discussion of this issue and the use of disclaimers as a response to these concerns. A more extensive discussion of this issue is included in The Texas Lawyer’s Insurance Exchange Newsletter, November 2, 2010, Loss Prevention, Unsolicited Email and Obligations of Confidentiality, by Jett Hanna, see also Don’t Just Hit Send: Unsolicited E-Mail and the Attorney-Client Relationship, HARVARD JOURNAL OF LAW & TECHNOLOGY, Vol. 17, No. 2, Spring 2004, Douglas K Schnell and Ethical Duties to Prospective Client Who Send Unsolicited Emails, 5 Shilder J. L. Com. & Tec. 8 (2009), Nicole Lindquist. A. Law Firm Websites

Law firm websites typically include information about the firm, its lawyers, and areas of practice, and often tout significant cases. A number of firms have transformed their websites into an interactive means of communicating with prospective clients, often targeting specific types of cases and inviting prospective clients to submit personal information regarding their particular claim by links in the website. Lawyers should recognize that information conveyed by a prospective client might be deemed confidential requiring specific actions by the lawyer resulting in the disqualification of the lawyer or in an implied attorney-client relationship and the duties imposed by that relationship. B. Confidential Information

The Texas Disciplinary Rules do not include a stand-alone rule regarding duties owed to prospective clients. Referendum 2011 sought to remedy this with proposed Rule 1.17, Prospective Clients. This provision became one of the more controversial provisions in the referendum, as opponents argued that

allowing prospective clients to waive their rights to confidentiality unnecessarily placed prospective clients at risk and subjected lawyers to liability claims. While proposed Rule 1.17 is modeled after ABA Rule 1.18, there were significant differences.

A survey of ethics opinions throughout the country indicates that as a general rule, an attorney must do more than simply publish contact information in an online directory for there to be a reasonable expectation of confidentiality. For a prospective client to have a reasonable expectation that information will remain confidential, the attorney must invite the communication. A review of selected cases follows.

In one of the first opinions to address this issue the State Bar of Arizona Ethics Committee concluded that “[a]n attorney does not owe a duty of confidentiality to individuals who unilaterally e-mail inquiries to the attorney when the e-mail is unsolicited.” Arizona Ethics Opinion 02-04 (09-2002). The prospective client was found to have no reasonable expectation of confidentiality as the lawyer did not have a website, did not advertise on the Internet, did not consult with the individual, and provided no advice. Citing with approval the Arizona opinion, the Massachusetts Ethics Committee found that a lawyer’s obligations change once an invitation to communicate is extended. See Mass. Bar Ass’n. Com. On Prof’l Ethics, Op. 07-10 (2007). “In the absence of an effective disclaimer, a lawyer who receives unsolicited information through a link on the firm website must treat the information as confidential even if the lawyer declines representation.” This decision was based on two propositions: First, the failure to include a disclaimer might cause a prospective client to reasonably conclude that an attorney has “implicitly agreed to consider” forming a client-lawyer relationship. Second, that since the law firm controlled the web site, including the right to require disclaimers and other conditions such as requiring a prospective client to review and “click” his assent to the terms before using the email, “the lawyer must maintain the confidentiality of the information provided.” The Iowa State Bar Association Committee on Ethics and Practice Guidelines, in Ethics Op. 07-01, also concluded that attorneys will be bound to hold information in confidence when prospective clients send unsolicited emails seeking legal assistance, reasonably believing that the information sent will remain confidential. In doing so, the Committee contrasted an internet web page that merely marketed the lawyer’s services and gives contact detail versus a web page which allows a potential client to submit specific questions to the lawyer. The latter “would constitute bilateral communication with an expectation of confidentiality…” while the former is a unilateral communication in which there should be no reasonable expectation of confidentiality. The Virginia State Bar

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Committee on Legal Ethics issued an advisory opinion, Ethics Opinion 1842 (2008), finding that the duty of confidentiality owed to prospective clients who electronically transmit information will be determined on a case-by-case basis, focusing on whether the prospective client has a reasonable belief that the information emailed will remain confidential. The Committee concluded that a law firm that maintains a “passive website” which only provides lawyers’ email addresses “does not owe a duty of confidentiality to a person who unilaterally transmits unsolicited confidential information via email…address posted on the firm’s website.” The Committee, however, stated that had the website invited clients to fill out an online form detailing their legal issues online, a different ethical duty would apply. Finally, in 2009 the Professional Ethics Committee of the Florida Bar issued Opinion 07-3 (January 16, 2009), finding that “A person seeking legal services who sends information unilaterally to a lawyer has no reasonable expectation of confidentiality regarding that information.” If the lawyer invites a prospective client to provide information via his website and does not intend such information to be confidential then the website should include an appropriate disclosure statement. C. Website Disclaimers

Disclaimers have become a primary tool for preventing the creation of an implied attorney-client relationship and as a means of limiting duties owed by an attorney when a prospective client electronically transmits confidential information. See Iowa State Bar Ass’n Comm. On Ethics and Practice Guidelines, Op. 07-02 (2007). Creating an effective disclaimer, however, has proved to be problematic as discussed in California Ethics Opinion 2005-168. In this matter the lawyer’s website included the following: “I agree that I am not forming an attorney-client relationship by submitting this question. I also understand that I am not forming a confidential relationship.” The Committee found the disclaimer insufficient because the California Rules of Evidence “make communications between a non-client and an attorney confidential if the non-client is communicating with the lawyer for the purpose of retaining the lawyer.”1 The Committee also stated that in order to avoid a duty of confidentiality the lawyer’s website must “contain a statement in sufficiently plain language that any information submitted at the web site will not be

1 The Texas Disciplinary Rules include similar references to information protected by rules of evidence. See Tex. Disciplinary R. Prof. Conduct 1.05(a) cmts. 1-4. Thus, when attempting to determine obligations owed to a prospective client, a lawyer cannot limit his or her analysis to disciplinary rules.

confidential.” Any disclaimer should be prominently displayed and include use of a “click-through” (aka “click-wrap”) disclaimer, which requires the prospective client to assent to the terms of the disclaimer before being permitted to submit the information.” Va. E. Op. 1842.

The California Standing Committee on Professional Responsibility & Conduct in Formal Op. Interim No. 03-001(2005), found the following disclaimer sufficient to defeat reasonable beliefs of confidentiality: “I understand and agree that Law Firm will have no duty to keep confidential the information I am now transmitting to Law Firm.” The Florida Ethics Committee also suggested that websites inviting information from a prospective client include a disclosure statement “inform[ing] the invitees that the lawyers do not intend to treat such information as confidential, that no confidential information should be disclosed, and that the information provided through the website could be used in the future against the person.” The Wisconsin Professional Ethics Committee issued Formal Opinion EF-11-03 which is published in the Wisconsin Lawyer, vol. 84, No. 9, September 11, 2011. In this opinion, the Committee recognized that to be effective a disclaimer must include two separate and distinct warnings. “The disclaimer must make it clear that there is no lawyer-client relationship and that the email communications are not confidential.” The Committee then identified six examples of disclaimers that a lawyer might use in conjunction with a website. The examples are included in Appendix A. D. Communications Through An Intermediary

Attorneys should recognize that all emails are not transmitted through links to websites or by directly communicating via a lawyer’s email address. Various locator services allow prospective clients to communicate with an attorney through intermediary websites such as Martindale Hubble’s Lawyers.com. Texas attorneys should also be aware that prospective clients might contact them through the State Bar of Texas. A member of the public can send an email to a Texas attorney, even though the attorney has requested that personal information not be provided, by going to the “Find a Lawyer” section on the State Bar’s website, filling in the attorney’s name, clicking on the provision “search by contact information” and then clicking on “send an email.” The State Bar does include a disclaimer that provides that there is no “reasonable expectation of privacy for the email sender…” and also “strongly discourages” transmission of “confidential or attorney-client information."2 However, once an 2 DISCLAIMER: By pressing the "SEND MESSAGE" button below, I hereby acknowledge the following: 1) That this email is being sent through an intermediary and that I

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attorney responds and there is a flow of information between the prospective client and attorney, such may lead to the attorney obtaining confidential information or as discussed below, an implied attorney-client relationship might arise. E. Implied Attorney-Client Relationship

Texas courts have long recognized that an attorney-client relationship “may be implied by the conduct of the two parties…,” Prigmore v Hardware Mutual Ins. Co. of Minnesota, 225 S.W.2d 897 (Tex. Civ. App.-Amarillo 1949, no writ), and all that is necessary is “that the parties explicitly or by their conduct manifest an intention to create the attorney-client relationship.” Nolan v. Foreman, 665 F.2d 738 (5th Cir. 1982). Moreover, if an individual reasonably believes that a lawyer has undertaken representation, the lawyer can be liable for negligence in providing legal services. See Parker v. Carnahan, 772 S.W.2d 151, 157 (Tex. App.-Texarkana 1989, writ denied). Thus, attorneys must carefully consider whether to respond to unsolicited emails by prospective clients, the nature of the response and whether to include a disclaimer. The best approach may be to not respond to the email, as there is no basis for a prospective client to claim that he reasonably believed that the lawyer has undertaken representation. If the email contains detailed information and is read, the lawyer probably has a duty to keep the information confidential. F. ABA Model Rule 1.18, Duties to Prospective

Clients Model Rule 1.18 addresses some of the concerns

discussed above. First, amendments to subsection (a) of the proposed rule revise the definition of a prospective client to include a person who “has a reasonable expectation that the lawyer is willing to consider a client-lawyer relationship….” Subsection (b) expressly prohibits the use of information obtained even though no lawyer-client relationship is established.

therefore have no reasonable expectation of privacy for the email's sender, its recipient or its contents, subject to the State Bar's published Privacy Policy; 2)That the State Bar of Texas strongly discourages the use of this email forwarding service for any confidential or attorney-client privileged communication; 3) You hereby warrant that you are the registered holder of the return email account you have provided and are not in violation of any local, state, or federal law by sending this email, including, but not limited to, those regulating the transmission of electronic mail.

G. Duty to Protect the Confidentiality of Email Communications with One’s Client ABA Formal Opinion 11-459, issued August 4,

2011, addressed a lawyer’s duty to “warn” a client of the risks of sending or receiving electronic communications, such as email if there is a “significant risk” that a third party may gain access to the material. If a lawyer knows or reasonably should know that the client might use a business device or system where there is a significant risk that an employer might have access to such, then there is a duty to warn the client of these risks. The opinion also recognizes that special measures might be necessary when sensitive information or documentation is involved. The Committee identified several factors that should be considered in determining whether the lawyer’s actions are reasonable. H. Recommendations

The use of disclaimers may be the most effective way for a lawyer to avoid creating duties of confidentiality and representation when prospective clients communicate via links to the lawyer’s website. Requiring that the person accept the terms of the disclaimer by clicking through or cancel-sending information to the law firm is another of the best practices suggested by ethics committees as this creates an enforceable contract as to confidentiality. See D.C. Bar Opinion 302 (2000) and Using Disclaimers to Avoid Disqualification by Receipt of Unsolicited Email from Prospective Clients, 16 Professional Lawyers 1 (No. 3, 2005). A second method for avoiding creating a duty of confidentiality is to limit the information that might be conveyed via a website link by using a form that has a limited number of fields and information that might be transmitted. Finally, carefully consider the extent and nature of communications with prospective clients, as ongoing electronic communications can raise expectations and result in an implied attorney-client relationship. IV. CLIENT’S RIGHT TO COPY OF FILE

UPON DISCHARGE OF ATTORNEY Every jurisdiction recognizes that a client who

terminates his or her lawyer is entitled to obtain copies of all documents in his file. With the use of email and other technology-related means of transmitting and preparing information, a question has arisen concerning whether the attorney must provide this information in a particular format. In Cal. Formal Opinion No. 2007-174, a client requested that the lawyer provide an electronic version of all emails and other documents prepared by or transmitted or received by the lawyer. The attorney sought to provide hard copies of documents. The committee concluded that an attorney is obligated to provide the electronic

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version, however, is not obligated to reformat the documents from the version in which they were maintained. V. OUTSOURCING LEGAL AND

LAW-RELATED WORK One of the more controversial proposals by the

Commission involves outsourcing of legal and law-related work. While unheard of five years ago, outsourcing investigating services, offsite online data storage, management and review of documents by outside businesses located throughout the United States and the world is not uncommon today. A recent email touting a company’s services included deposition summaries, medical summaries, legal transcription of audio files, case management services, drafting demand and settlement letters, discovery process, drafting complaints and motions, drafting briefs and motions for summary judgment and legal research. While much of the attention is directed at foreign groups, called “offshoring,” the issues and obligations are no different if the services are provided within the United States. The Commission has not recommended any changes to the black letter rules, instead recommending revisions to comments to existing rules including 1) Model Rules 1.1 regarding outsourcing legal work to other lawyers, 2) Model Rule 5.3 outsourcing work to non-lawyer service providers, and 3) Model Rule 5.5 (outsourcing which might facilitate unauthorized practice of law). A. A Lawyer’s Duty When Retaining a Non-Firm

Lawyer to Assist in Representing a Client The Commission concluded that while Model

Rule 1.1 is the appropriate rule for addressing a lawyer’s duty when retaining a non-firm lawyer to assist in representing a client, it is not necessary for the black letter rule to be amended. Instead, the Commission recommends revisions to the comments. Ensuring that the outsourced services will be performed competently is the primary ethical consideration to be addressed. To accomplish this goal, the Commission proposed revisions to Comment [6] to include suggesting, but not requiring, that the lawyer obtain the client’s consent before retaining a non-firm lawyer. Additionally, a number of factors are identified that should be considered in determining the reasonableness of the decision to retain a non-firm lawyer to assist in representation. The factors include “the education, experience and reputation of the nonfarm lawyers; the nature of the services assigned to the nonfarm lawyers; and the legal protections, professional conduct rules, and ethical environments of the jurisdiction in which the services will be performed, particularly relating to confidential information.”

B. The Use of Non-Lawyer Services Outside the Firm has Proliferated Over the Past Decade What typically involved the hiring of non-firm

investigators and freelance paralegals has now evolved into retention of entities such as electronic discovery vendors and cloud computing providers. To address concerns raised by retention of these non-lawyer firms, the Commission focused its attention on Model Rule 5.3, which applies to both non-lawyers within and outside a firm. The proposed revisions to Comment [3] include recognition that the lawyer has an obligation to ensure that non-lawyer services are performed in a professional manner and identifies factors to be considered in determining a lawyer’s obligation relative to the non-lawyer service providers. The factors to be considered are the same as those used in determining whether a non-firm lawyer should be retained. See Sec.V(A) above. Finally, Comment [4] was revised to recognize that the client may require that a particular non-lawyer service provider be retained. In this situation, it is necessary that the parties determine who will monitor the service provider. C. Assisting the Unauthorized Practice of Law

To ensure that lawyers are mindful that non-firm lawyers and non-lawyers do not engage in the unlawful practice of law, Comment [1] to Model Rule 5.5 is revised. The revised comment states “For example, a lawyer may not assist a person in practicing law in violation of the rules governing professional conduct in that person’s jurisdiction.”

VI. CONCLUSION

Texas lawyers will no doubt question spending time to acquaint themselves with any of the ABA 20/20 Commission’s proposed recommendations that are discussed above. Lawyers must recognize that thirty states and the District of Columbia have adopted the ABA Model Rules and that the transmission of electronic data and information is not relegated to any one jurisdiction - it has become a global phenomenon that is transforming the way we practice and communicate with existing and prospective clients. The Texas Disciplinary Rules of Professional Conduct do not begin to address the technological issues that confront lawyers and must be revised if lawyers are to understand the ethical obligations owed clients and prospective clients. Lawyers who practice in federal court must also recognize that their conduct will often be judged in part by the ABA Model Rules even though they may often conflict with standards set forth in the Texas Disciplinary Rules. See American Airlines 972 F.2d 605 (5th Cir. 1992), cert. denied 507 U.S. 912, 113 S. Ct. 1262, 122 L.Ed.2d 659 (1993) (Disqualification cases are governed by state and

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national ethical standards adopted by the court.). Thus, it is in a lawyer’s interest to have a basic understanding of the proposed revisions to the ABA Model Rule.

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Appendix A

APPENDIX: EXAMPLE DISCLAIMER LANGUAGE

Example One If you are seeking representation, please read the following notice before sending an email to our firm: Sending us an email will not make you a client of our firm. Until we have agreed to represent you, anything you send us will not be confidential or privileged. Before we can represent you, a lawyer will first take you through our conflict of interest procedure and see that you are put in touch with the lawyer best suited to handle your matter. If you proceed with an email, you confirm that you have read and understood this notice. Example Two If you send email through this service, your email will not create an attorney-client relationship, and any information you include in your email will not necessarily be treated as privileged or confidential. You should not send sensitive or confidential information through this email service. The firm may choose not to accept you as a client. Moreover, the Internet is not necessarily a secure environment, and it is possible that your email might be intercepted and read by third parties. Example Three Please Read Before Sending Email. Please note that any communication with us by email through this website does not constitute or create an attorney-client relationship with us. Please do not send any confidential information. A conflicts-of-interest procedure must be completed by us before we can establish an attorney-client relationship with you. By clicking “Accept/Submit” below, you agree that we may review any information you transmit to us. You recognize that our review of your information, even if it is highly confidential and even if it is transmitted in a good faith effort to retain us, does not preclude us from representing another client directly adverse to you, even in a matter where that information could and will be used against you. If you wish to discuss the possibility of potential legal representation, you may request a consultation by email or by calling one of our offices. Example Four CAUTION: Before you proceed, please note. Do not send us any information that you or anyone else considers to be confidential or secret unless we have first agreed to be your lawyers in that matter. Any information you send us before we agree to be your lawyers cannot be protected from disclosure. By clicking “accept” you agree that our review of the information contained in the email and any attachments you send to us will not create a lawyer-client relationship with us, and will not preclude any lawyer in our firm from representing a party in any matter where that information is relevant, even if that information is highly confidential and could be used against you.

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Example Five While we could like to hear from you, we cannot represent you until we know that doing so will not create a conflict of interest. Accordingly, do not use any of the supplied email to send us any confidential or private information until you speak with one of our attorneys and receive our authorization to send that information to us. Example Six NOTICE: Please note that we cannot act as your attorney or provide you with any legal advice until we know that doing so will not create a conflict of interest. While we welcome inquiries, please do not send us any secret, confidential, or privileged information until you receive a written confirmation from us that we have agreed to serve as your lawyer. Unsolicited emails from non-clients containing confidential or secret information cannot be protected from disclosure. The best way for you to discuss a possible representation is to call us at (phone number). We will make every effort to put you in touch with a lawyer suited to handle your matter. Excerpts taken from Professional Ethics Committee, Who Is a Prospective Client?, 84 Wisconsin Lawyer 9 (Sept. 2011).