Does a would-be client create an attorney-client relationship, or a duty of confidentiality, just by sending a lawyer unsolicited information, including through the lawyer's website?

Plain-English summary

The opinion responds to frequently asked questions about how the attorney-client relationship forms, particularly after the advent of the internet and electronic communication. It addressed three questions: whether the relationship can be created by the prospective client's unilateral act (such as an unsolicited letter containing confidential information); whether the analysis changes if the letter responds to an advertisement or is emailed to the lawyer's website; and, if there is no relationship, what duty the lawyer owes to confidential information sent by someone requesting legal services.

On the first question, the Committee concluded that generally a unilateral act does not create the relationship, because the relationship is consensual and ordinarily requires both the prospective client's manifest intent to obtain legal services and the lawyer's manifest intent to provide them. But a relationship can arise by implication from later acts. The Committee illustrated this with Todd v. State, where a jailhouse conversation, the attorney's instruction to the inmate to write down what happened and send it, and the inmate's compliance gave rise to a relationship by implication; the Nevada Supreme Court stated that a relationship may be implied when a person seeks advice within the lawyer's competence and the lawyer expressly or impliedly agrees to or does give the advice. The opinion noted the multi-factor list in California Formal Opinion 2003-161 (whether the lawyer volunteered services, agreed to investigate, previously represented the person, actually gave advice, was paid, whether the consultation was in confidence, and whether the person reasonably believed they were consulting the lawyer professionally), and advised that a lawyer who does not want to represent a person evidencing such an expectation should expressly decline.

On the second and third questions, the Committee concluded the analysis can change where the communication responds to the lawyer's advertisement or website: such a solicitation can heighten the duty so the prospective client may reasonably believe the lawyer wants to form a relationship, unless the lawyer disclaims it. As to confidentiality, SCR 156 protects information of a "client" and presumes a relationship; unsolicited information from a person with no reasonable expectation that the lawyer wants to represent them does not implicate the confidentiality duty, but communications from a prospective client who does have such a reasonable expectation may impose a duty to keep the information confidential. The opinion pointed to the Restatement and to the then-proposed SCR 156.1 (based on Model Rule 1.18), which embodies a duty of confidentiality to prospective clients but excludes persons who communicate without a reasonable expectation that the lawyer is willing to form a relationship. Its bottom line: attorneys who advertise or maintain websites should take appropriate precautions such as warnings and disclaimers.

Currency note

This opinion was issued in 2005, before the State Bar of Nevada's adoption of the Nevada Rules of Professional Conduct (effective 2006). It interprets former SCR 156 (now NRPC 1.6) and discusses the then-proposed SCR 156.1, which Nevada later adopted as NRPC 1.18 (duties to a prospective client). Verify the current NRPC 1.18 text before relying on the specifics of the prospective-client duty.

In practice

The opinion holds that, under the rules then in force, a lawyer generally does not form an attorney-client relationship or take on a confidentiality duty merely because someone sends unsolicited information, but that responding to a lawyer's advertisement or website can change the analysis and create a reasonable expectation (and a confidentiality duty) on the sender's part. The Committee treated warnings and disclaimers on advertisements and websites as the way lawyers address this, and a prospective-client confidentiality duty is now codified in NRPC 1.18.

Common questions

Q: If a stranger emails a lawyer confidential facts, is the lawyer now bound to keep them secret?

A: Per the opinion, not if the sender had no reasonable expectation that the lawyer wanted to represent them; such an unsolicited communication does not implicate the confidentiality duty. The answer can differ where the message responds to the lawyer's advertising or website.

Q: Can someone make a lawyer their attorney just by sending a letter asking for help?

A: Generally no. The opinion concluded a unilateral act does not by itself create the relationship, though one can arise by implication from the lawyer's later conduct, as in Todd v. State.

Q: Does a law-firm website change the duty owed to people who write in?

A: It can. The opinion concluded a communication in response to a website or advertisement may create a reasonable expectation that the lawyer wants to represent the sender, so lawyers should use warnings and disclaimers.

Background and rules framework

The opinion interprets former SCR 156 (confidentiality; now NRPC 1.6) and the then-proposed SCR 156.1 (prospective clients; now NRPC 1.18, based on Model Rule 1.18), with the Restatement (Third) of the Law Governing Lawyers sections 14 and 15 and Nevada's Williams v. Waldman and Todd v. State on formation of the attorney-client relationship.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.6 / Nev. SCR 156 (now NRPC 1.6) (confidentiality)
• Model Rule 1.18 / proposed Nev. SCR 156.1 (now NRPC 1.18) (duties to prospective clients)

Cases:

• Todd v. State, 113 Nev. 18, 931 P.2d 721 (1997), attorney-client relationship by implication
• Williams v. Waldman, 108 Nev. 466, 836 P.2d 614 (1992), no formalities required to form the relationship

Other opinions cited:

• California Formal Op. 2003-161 (factors for an implied relationship); Arizona Op. 02.04 (2002)

See also

• ABA Formal Op. 10-457: lawyer websites and information from website visitors
• NV Ethics Op. 41: the scope of confidentiality under Rule 1.6

Source

• Landing page: https://nvbar.org/for-lawyers/ethics-discipline/ethics-opinions/
• Original PDF: https://nvbar.org/wp-content/uploads/opinion_32.pdf