Does a law-firm website disclaimer that an 'attorney-client relationship' or 'confidential relationship' is not formed defeat a visitor's reasonable expectation that information typed into the firm's intake form will be kept confidential?
State Bar of California COPRAC Formal Opinion 2005-168: Web Intake Forms and Confidentiality
Short answer: The opinion concludes that a law-firm website's disclaimer that no "attorney-client relationship" or "confidential relationship" is formed when a visitor submits a legal question through the firm's intake form does not, by itself, defeat the visitor's reasonable belief that the information is confidential. Plain-language notice that the submission will not be kept confidential, or pre-screening only for conflicts before facts are requested, is required to avoid the duty.
Currency note
This opinion was issued in 2005, before the State Bar of California's adoption of the November 1, 2018 revisions to the Rules of Professional Conduct. The opinion interprets Evidence Code sections 917(b) and 951, and the duty-of-confidentiality framework laid out in California State Bar Formal Opinion 2003-161, which discussed former Rule 3-310(E) and Business and Professions Code section 6068(e). Current Rules 1.6 (confidentiality) and 1.18 (prospective clients) now address these issues. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule reference.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the State Bar of California's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.
About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. The opinion text is reproduced at the bottom; the official source (linked) controls.
Plain-English summary
The hypothetical: Wife found Law Firm's California family-law website. A link labeled "What are my rights?" took her to an intake form that asked for contact information and a statement of facts about her legal problem. She typed in detailed facts including her husband's name and employer, her child's age, her husband's adultery, her own prior extramarital affair (which her husband did not know about), her financial circumstances, and her goals (sole custody, reasonable property settlement, keeping her affair a secret). She also wrote that she wanted Law Firm to represent her. The intake form's "Terms" required her to agree that no attorney-client relationship and no "confidential relationship" was being formed by the submission. Law Firm received the form, discovered Husband had already retained the firm to explore divorce from Wife, and emailed Wife a polite declination citing the conflict.
The committee applied the framework from California State Bar Formal Opinion 2003-161. Even where no attorney-client relationship is formed, a duty of confidentiality can attach where the lawyer's conduct manifests a willingness to be consulted in a professional capacity and confidential information is communicated. The committee concluded that Law Firm's "What are my rights?" link, combined with a request for facts about the visitor's legal problem, was an invitation to consult, and that Wife's belief she was consulting Law Firm to retain its services was objectively reasonable.
On the effect of the disclaimer: the committee held that Wife's agreement she would not be forming a "confidential relationship" was potentially confusing to a lay person, who might view it as a variant of the no-attorney-client-relationship disclaimer rather than as an affirmative waiver of confidentiality. Citing Barton v. District Court (9th Cir. 2005) 410 F.3d 1104, Virginia State Bar Ethics Opinion 1794, and California cases on knowing waiver of contractual rights, the committee concluded that the disclaimer was not sufficiently plain to defeat a reasonable expectation of confidentiality. The committee illustrated language that would have worked: "I understand and agree that Law Firm will have no duty to keep confidential the information I am now transmitting to Law Firm."
The committee also identified an alternative approach that sidesteps the confidentiality issue entirely: a firm can request only the information needed for a conflicts check (names of parties, children, former spouses, relevant maiden names) and disclose that it is asking solely to determine whether representation would create a conflict. The committee cited D.C. Ethics Opinion 302 for "best practices" guidance, including the use of prominent click-through disclaimers.
On the role of email and Internet transmission, footnote 2 cited ABA Formal Ethics Opinion 99-413 and Evidence Code section 917(b) for the proposition that transmission by electronic means does not, by itself, nullify confidentiality. Distinguishing People v. Gionis (1995), footnote 3 emphasized that Law Firm invited Wife to describe her legal problem for the purpose of considering representation, whereas in Gionis the lawyer had clearly disclaimed any involvement before the friend made the challenged communications. On disqualification, footnote 5 expressly declined to opine on whether Law Firm would be disqualified from representing Husband; the committee addressed only the existence of a duty of confidentiality.
Common questions
Q: Does a website disclaimer that no attorney-client relationship is formed eliminate the duty of confidentiality to intake-form visitors?
A: Per the opinion, no, not standing alone. A disclaimer that no attorney-client relationship and no "confidential relationship" is formed is potentially confusing to a lay visitor and does not defeat the visitor's reasonable belief that the information is being treated confidentially. The opinion describes the disclaimer that would suffice: a plain-language statement that the firm will have no duty to keep the information confidential.
Q: How can a firm avoid taking on a confidentiality duty to website visitors?
A: Per the opinion, by either (1) including a plain-language disclaimer that any information submitted will not be confidential, or (2) limiting the initial intake to information needed for a conflicts check (names of parties, children, former spouses, relevant maiden names), and explaining that the firm is requesting that information solely to determine whether representation would create a conflict.
Q: Does it matter that the inquirer typed information into an online form rather than meeting in person?
A: Per the opinion, no. Citing Evidence Code section 917(b) and ABA Formal Ethics Opinion 99-413, the committee noted that transmission by electronic means does not by itself nullify confidentiality. The Legislature has decreed that privileged communications may be transmitted by email without jeopardizing the privilege.
Q: Was the firm in this hypothetical disqualified from representing the husband?
A: Per the opinion, the committee expressly declined to decide that question. Footnote 5 stated that disqualification in California is subject to case law that the opinion did not analyze; the opinion addressed only whether the firm took on a duty of confidentiality to Wife, not the downstream consequence for representation of Husband.
Q: Does the opinion overrule People v. Gionis (1995)?
A: Per the opinion, no. The committee distinguished Gionis, where the attorney had told a friend he would not represent him before any challenged communications were made. In the website intake scenario, by contrast, the firm invited the visitor to describe her legal problem precisely so the firm could consider whether to represent her, which is the opposite of an advance disclaimer of professional involvement.
Background and rules framework
The opinion interprets Evidence Code sections 917(b) (electronic transmission and the attorney-client privilege) and 951 (definition of "client"), and applies the framework from California State Bar Formal Opinion 2003-161, which discussed former Rule 3-310(E) and Business and Professions Code section 6068(e). Functionally, the questions now correspond, in current California numbering, to Rules 1.6 (confidentiality) and 1.18 (duties to prospective clients).
Citations and references
Rules of Professional Conduct (former, referenced through Opinion 2003-161):
- Former California Rule 3-310(E)
Statutes:
- California Evidence Code sections 917(b), 951
- California Business and Professions Code section 6068(e) (referenced through 2003-161)
Cases:
- Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971) 6 Cal.3d 176, attorney-client relationship by contract
- Miller v. Metzinger (1979) 91 Cal.App.3d 31, implied-in-fact relationship factors
- People v. Gionis (1995) 9 Cal.4th 1196, advance disclaimer of representation
- Barton v. District Court (9th Cir. 2005) 410 F.3d 1104, website disclaimer must speak plainly to laymen
- City of Reno v. Reno Police Protective Association (Nev. 2002) 59 P.3d 1212, unencrypted email and privilege
- Powers v. Superior Court (1987) 196 Cal.App.3d 318, release/exculpatory clauses must be clear
- Skrbina v. Fleming Companies, Inc. (1996) 45 Cal.App.4th 1353, knowing waiver of rights
Other opinions cited:
- California State Bar Formal Opinion 2003-161: framework for duty of confidentiality in non-office settings
- California State Bar Formal Opinion 2001-155: definitions of "web site," "home page," "links," and "electronic mail"
- ABA Formal Ethics Opinion 99-413: unencrypted email does not violate confidentiality
- Virginia State Bar Ethics Opinion 1794 (June 30, 2004): non-Internet disclaimer that no attorney-client relationship is formed is not effective in preventing duty of confidentiality
- D.C. Ethics Opinion 302: tentative best practices for attorney website communications and click-through disclaimers
See also
- CA COPRAC Op. 2003-161: Confidentiality in non-office consultations
- CA COPRAC Op. 2003-164: Radio call-in show attorney-client relationship
- CA COPRAC Op. 2001-155: Law firm internet website advertising
- CA COPRAC Op. 2021-205: Duties to prospective client
Source
- Landing page: https://www.calbar.ca.gov/legal-professionals/ethics-compliance-practice-resources/ethics/ethics-opinions
- Original PDF: https://www.calbar.ca.gov/sites/default/files/portals/0/documents/ethics/Opinions/2005_-168_03-0001-wpd-PAW.pdf
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
THE STATE BAR OF CALIFORNIA
STANDING COMMITTEE ON
PROFESSIONAL RESPONSIBILITY AND CONDUCT
FORMAL OPINION NO. 2005-168
ISSUE: Does a lawyer who provides electronic means on his web site for visitors to submit legal questions owe a duty of confidentiality to visitors who accept that offer but whom the lawyer elects not to accept as clients, if the attorney disclaims formation of an attorney-client relationship and a "confidential relationship"?
DIGEST: A lawyer who provides to web site visitors who are seeking legal services and advice a means for communicating with him, whether by e-mail or some other form of electronic communication on his web site, may effectively disclaim owing a duty of confidentiality to web-site visitors only if the disclaimer is in sufficiently plain terms to defeat the visitors' reasonable belief that the lawyer is consulting confidentially with the visitor. Simply having a visitor agree that an "attorney-client relationship" or "confidential relationship" is not formed would not defeat a visitor's reasonable understanding that the information submitted to the lawyer on the lawyer's web site is subject to confidentiality. In this context, if the lawyer has received confidential information from the visitor that is relevant to a matter in which the lawyer represents a person with interests adverse to the visitor, acquisition of confidential information may result in the lawyer being disqualified from representing either.
AUTHORITIES INTERPRETED: Evidence Code sections 917(b), and 951.
STATEMENT OF FACTS
Searching the Internet for law firms that specialize in divorce, Wife finds Law Firm's web site. The site describes Law Firm's family law practice, lists the firm's California address, and notes that all of the firm's attorneys are licensed to practice exclusively in California and are available to represent any person who wishes to pursue or defend a divorce action in a California court. The web site contains a link entitled: "What are my rights?" Wife clicks on that link and is taken to a new page, which contains an electronic form. At the top of the form appears the legend: "Wondering about a legal problem you have?" The form asks for the inquirer's name and contact information, for a statement of facts related to the reader's legal problem, and for any questions the inquirer wishes to pose to Law Firm.
After typing in her contact information, Wife explained that she was interested in obtaining a divorce. She related that her Husband, a Vice-President at Ace Incorporated in Los Angeles, was cohabiting with a co-worker. She also stated that her 13-year-old son was living with her and asked if she could obtain sole custody of him. She noted that Husband was providing some support but that she had to take part-time work as a typist, and was thinking about being re-certified as a teacher. She revealed that she feared Husband would contest her right to sole custody of her son and that, many years ago, she had engaged in an extra-marital affair herself, about which Husband remained unaware. Wife stated that she wanted a lawyer who was a good negotiator, because she wanted to obtain a reasonable property settlement without jeopardizing her goal of obtaining sole custody of the child and keeping her own affair a secret. She concluded by noting she had some money saved from when she was a teacher, and stating, "I like your web site and would like you to represent me."
Immediately below the text box in which Wife described her case was a list of "Terms," which stated:
TERMS
- I understand and agree that I may receive a response to my inquiry from an attorney at Law Firm.
- I agree that by submitting this inquiry, I will not be charged for the initial response.
- 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.
- I further agree that I may only retain Law Firm or any of its attorneys as my attorney by entering into a written fee agreement, and that I am not hereby entering into a fee agreement. I understand that I will not be charged for the response to this inquiry.
Below the foregoing list of "Terms" are two buttons, one which reads "SUBMIT" and the other which reads "CANCEL," with the following statement:
By clicking the appropriate button below, I agree to:
SUBMIT my inquiry pursuant to the foregoing terms.
CANCEL my inquiry.
Wife clicked on the "SUBMIT" button; had she clicked "CANCEL," Law Firm's computer would have refused to accept her information.
Upon receiving Wife's inquiry, the law firm discovered that Husband had already retained Law Firm to explore the possibility of a divorce from Wife. The next day, an attorney in Law Firm sent Wife an e-mail, which stated:
We regret we will be unable to accept you as a client because there is a conflict with one of our present clients. Good luck with your case.
We address whether Law Firm may be precluded from representing Husband as a result of the firm's contact with Wife on the ground that Law Firm has obtained material confidential information.
DISCUSSION
A. Introduction
In California State Bar Formal Opn. No. 2003-161, we set forth an analytical framework for determining when a lawyer might be deemed to have entered into an attorney-client relationship, or otherwise have taken on a duty of confidentiality, when people ask a lawyer about a legal problem in a setting other than the lawyer's office. We noted that strangers do not have unilateral power to impose an attorney-client relationship or a duty of confidentiality on a lawyer through unsolicited requests for advice. When presented with such requests, a lawyer can take steps to avoid taking on duties to the inquirer, such as by stating that he or she cannot or will not represent the inquirer. (Cal. State Bar Formal Opn. No. 2003-161, at note 1 (citing to People v. Gionis (1995) 9 Cal.4th 1196 [40 Cal.Rptr.2d 456]); id. at page 6 (discussing Gionis.) In this opinion, we address the quite different situation the current hypothetical facts present, in which Law Firm has encouraged potential clients to present legal questions to the firm for consideration and for possible retention of Law Firm by the potential clients.
B. Must Law Firm keep confidential the information Wife transmitted?
As we noted in California State Bar Formal Opn. No. 2003-161, the attorney-client relationship, with all of the duties attendant upon that relationship – including confidentiality – "is created by contract, either express or implied." (Id. at p. 3, citing Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971) 6 Cal.3d 176, 181 [98 Cal.Rptr. 837]; Miller v. Metzinger (1979) 91 Cal.App.3d 31, 39-40 [154 Cal.Rptr. 22].) Law Firm never expressly agreed to enter into a client-lawyer relationship with Wife and, for the purposes of this opinion, we also assume that Law Firm did not form an implied-in-fact attorney-client relationship with Wife either. (See Cal. State Bar Formal Opn. No. 2003-161, at pp. 3-4, for a discussion of the framework for determining when an implied-in-fact attorney-client relationship has been created.)
As we explained in California State Bar Formal Opn. No. 2003-161, however, even in the absence of an attorney-client relationship, an attorney may take on a duty of confidentiality to a prospective client "who, directly or through an authorized representative, consults a lawyer for the purpose of retaining the lawyer or securing legal service or advice from him in his professional capacity . . . ." (Cal. State Bar Formal Opn. No. 2003-161, at p. 6 (quoting Evid. Code § 951).) In Cal. State Bar Formal Opn No. 2003-161, we discussed situations in which there was some question about whether the attorney had agreed to be consulted, noting that the attorney must "evidence, by words or conduct, a willingness to engage in a confidential consultation with any of the individuals." (Id. at page 5) (Emphasis in original.) Here, by providing the link that states, "What are my rights?" in combination with directions to submit facts that related to a legal problem she was "[w]ondering about," Law Firm has invited the consultation with Wife, and has done so for the purpose of considering whether to enter into an attorney-client relationship with the inquirer.
Law Firm has attempted to avoid taking on a duty of confidentiality by requiring each inquirer to agree that (1) by submitting a question, the inquirer is not forming an attorney-client relationship or a "confidential relationship"; and (2) whatever response Law Firm provides will not constitute legal advice but, rather, "general information." To assess whether Wife's agreement to these terms prevented Law Firm from taking on a duty of confidentiality, we apply the "reasonable belief" test we set forth in California State Bar Formal Opn. No. 2003-161: "If the attorney's conduct, in light of the surrounding circumstances, implies a willingness to be consulted, then the speaker may be found to have a reasonable belief that he is consulting the attorney in the attorney's professional capacity." We do not believe that a prospective client's agreement to Law Firm's terms prevented a duty of confidentiality from arising on the facts before us, because Law Firm's disclosures to Wife were not adequate to defeat her reasonable belief that she was consulting Law Firm for the purpose of retaining Law Firm.
First, our assumption that Law Firm did not form an attorney-client relationship with Wife is not conclusive concerning Law Firm's confidentiality obligations to Wife. An attorney-client relationship is not a prerequisite to a lawyer assuming a duty of confidentiality in such a situation. As we explained earlier, and elaborated fully in California State Bar Formal Opn. No. 2003-161, a lawyer can owe a duty of confidentiality to a prospective client who consults the lawyer in confidence for the purpose of retaining the lawyer. Thus, that an attorney-client relationship did not arise from Wife's consultation with Law Firm did not prevent Law Firm from taking on a duty of confidentiality to Wife.
Second, Wife's agreement that she would not be forming a "confidential relationship" does not, in our view, mean that Wife could not still have a reasonable belief that Law Firm would keep her information confidential. We believe that this statement is potentially confusing to a lay person such as Wife, who might reasonably view it as a variant of her agreement that she has not yet entered into an attorney-client relationship with Law Firm. Cf. Virginia State Bar Ethics Opn. 1794 (June 30, 2004) (Lawyer's use of a disclaimer in non-Internet setting that stated "I understand that my initial interview with this attorney does not create an attorney/client relationship and that no such relationship is formed unless I actually retain this attorney" is not effective in preventing the lawyer from incurring duty of confidentiality to prospective client). Had Law Firm written its agreement with Wife with a plain-language reference that her submission would lack confidentiality, then that would have defeated a reasonable expectation of confidentiality. Accord, Barton v. District Court (9th Cir. 2005) 410 F.3d 1104, 1110 (Law firm should have spoken clearly to the laymen to whom its website was addressed about what commitments it did and did not make by a plain English explanation on the website). Without ruling out other possibilities, we note that had Wife agreed to the following, she would have had, in our opinion, no reasonable expectation of confidentiality with Law Firm: "I understand and agree that Law Firm will have no duty to keep confidential the information I am now transmitting to Law Firm."
Another way in which Law Firm could have proceeded that would have avoided the confidentiality issue entirely would have been to request from web site visitors only that information that would allow the firm to perform a conflicts check. For example, under the facts presented, Law Firm would first want to ensure that it does not represent the other spouse. Law Firm could explain that it is seeking the information to determine whether representing the visitor might create a conflict with one of its present clients, preventing it from representing the visitor. Law Firm could request that the inquirer provide relevant information such as the names of the parties, children, former spouses, etc., and, given the subject area, any relevant maiden names. Regardless of the precise language used, it is important that lawyers who invite the public to submit questions on their web sites, and do not want to assume a duty of confidentiality to the inquirers, plainly state the legal effect of a waiver of confidentiality. (See also D.C. Ethics Opn. 302 (providing tentative "best practices" guidance on attorney communications over the Internet to avoid formation of attorney-client relationships, including the use of prominent "click through" disclaimers).) We note that by suggesting a means for lawyers to avoid inadvertently taking on a duty of confidentiality to web site visitors, we do not mean to suggest that this methodology is the only means for doing so. In the situation presented, however, Law Firm chose neither to make a plain-language reference to the non-confidential nature of communications submitted to its web site, nor to first screen visitors for potential conflicts with its existing clients. Having taken the course it did, Law Firm may be disqualified from representing Husband should the court conclude that the information Wife submitted was material to the resolution of the dissolution action.
CONCLUSION
A lawyer may avoid incurring a duty of confidentiality to persons who seek legal services by visiting the lawyer's web site and disclose confidential information only if the lawyer's web site contains a statement in sufficiently plain language that any information submitted at the web site will not be confidential.
This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of the State Bar of California. It is advisory only. It is not binding upon the courts, the State Bar of California, its Board of Governors, any persons or tribunals charged with regulatory responsibility or any member of the State Bar.