But you started reading it anyway. 

We’re all so inundated with disclaimers and license agreements at every turn that we barely flinch anymore when we see the words “privileged and confidential” or worse, long paragraphs in small fonts portending doom for the unwitting recipient of a misdirected e-mail or the surfer of law firm websites. Disclaimers seem to have spread like a consensual virus – a lawyer sees another lawyer using a disclaimer, figures it must be a good idea, and includes it in his or her own materials. 

Website disclaimers are fairly inoffensive. These disclaimers generally warn visitors that the information on the website is not meant to provide legal advice about the visitor’s individual legal problem and caution the visitor not to disclose confidential information in an e-mail or contact form sent to the law firm until the firm has agreed to enter into an attorney client relationship. Lawyers are concerned, of course, that an opposing or related party to one of the firm’s existing clients might provide confidential information that would conflict the lawyer out of its already existing representation. 

There do not appear to be any reported cases that have disqualified a law firm from representing a client because the firm received unsolicited confidential information from a non-client. Recently, the Virginia State Bar Committee on Legal Ethics issued an opinion that compared websites to advertisements in the yellow pages. Just as a prospective client who obtains a lawyer’s phone number from a yellow pages ad should have no expectation of confidentiality when leaving a voicemail message for a lawyer, the Virginia Bar reasoned that there ordinarily should be no expectation of confidentiality in an e-mail message sent from a website. The opinion recommends, but does not require, that Virginia lawyers include such a disclaimer on their websites and cautions that lawyers may create a duty of confidentiality through sites that offer  a “free evaluation” of a prospective client’s case and invite web visitors to provide the lawyer with information about their situations.

Website disclaimers are designed to address the exact same situation repeatedly: Stranger v. Law Firm.  No disclosure of existing client confidential information is involved, and whether the stranger reads the disclaimer or heeds its warning is of no consequence to the law firm, which has discharged its duty to itself (protect against claims of reliance on alleged legal advice) and to its existing clients (prevent being disqualified from existing representations).

E-mail disclaimers, however, are a different and dangerous breed. (more…)

The following is a fictionalized account of a conversation between the plaintiff’s attorneys in Illinois Central Railroad Co. v. Broussard, No. 2007-CA-01010-COA (Miss.Ct. App. Sept. 30, 2008), as reported at 24 Lawyers’ Manual 535 (Oct. 15, 2008).

Associate: You know that asbestos case we filed a couple of weeks ago?

Partner: You mean Broussard? Yeah, that was a close one! Got in just before the statute of limitations expired.

Associate: That’s the one. We got a motion to dismiss on it.

Partner: So what else is new. Fire up your keyboard and let’s knock that one back at them.

Associate: It’s going to be kind of a tough one.

Partner: Why is that?

Associate: Well, they say he’s dead.

(more…)

As alternative billing approaches go, flat fees have many fans. Clients like to know exactly what a particular legal service will cost and lawyers like to leverage experience they have gained in providing the same service to others. Sometimes a flat fee even lets a lawyer spend more time on a matter because there’s no concern that the client will feel the lawyer was trying to run up the bill by spending more time on legal research or clever drafting. Flat fees are also important for clients who are at a high risk of future nonpayment. 

The place where lawyers tend to get in trouble ethically with flat fees is when they want the fee to be both flat and nonrefundable. From a definition standpoint, calling a fee “flat” merely says what the amount will be and says nothing about when the client is expected to pay, when the fee will be considered earned, and what portion (if any) the client will get back if the client is unhappy or just decides the lawyer is ugly.

One way to handle the flat fee is to have the client pay the amount up front, put it in the lawyer’s trust account, and state in the representation agreement when the fee will be considered earned, so that the lawyer can take it out of trust and put it in the business account.  This works well for document-intensive projects, such as an estate plan or an incorporation. But even in a criminal matter the agreement could be that 25% of the fee is earned after the arraignment, another 25% after the omnibus, and the rest after trial, with all of the fee earned at any time a plea bargain is reached.

Most lawyers who use flat fees, however, see them also as a way of avoiding having to place funds in a trust account.  Of course, one could avoid trust account issues by having the client pay after the work is done, but getting the money up front is a key part of keeping a law practice afloat.

This is where the ethics problems start.   (more…)

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You see them everywhere: heads bowed, thumbs flying, oblivious to the things they’re about to walk into. They’re people texting friends and family on their cell phones, the communication method du jour, favored by the under-30 set (although the rest of us are not immune).

Over the last 30 years, we’ve gone from the formality of letters sent by post, to the immediacy of faxes, to the instancy of e-mail. Each new form of communication has been both a blessing and a curse to busy lawyers. Which makes me wonder whether texting would be a good way of communicating with clients.

Ethics authorities generally approve of electronic communications by lawyers. Although lawyers should take reasonable precautions to protect the confidentiality of their communications, they are not expected to make calls only from land lines or to encrypt e-mails.

On the other hand, few lawyers would leave a voicemail message for a client containing confidential information, especially if the lawyer had reason to believe that someone besides the client could get access to the voicemail.

Similarly, lawyers who communicate with clients through e-mail while the client is at work should probably advise their clients that the employer may have the ability and the right to review their employees’ e-mail accounts, which could result in a client’s loss of confidentiality and attorney-client privilege.

Texting through a cell phone shares some of the characteristics of other types of modern communications. Like voicemail, it is useful for leaving brief messages, confirming meeting appointments or cancellations, or letting someone know that you’re unavailable for a while. Like e-mail, it allows the parties to keep track of the thread of their conversation, preventing some misunderstandings and memorializing what was said and when.

But as a form of communication between lawyers and clients, texting leaves a lot to be desired.

(more…)