Ezel / Ethics Opinions / WISBAR
WISBAR July 29, 2011

Does a stranger who sends an unsolicited email become a prospective client the lawyer owes confidentiality to?

Short answer: The opinion concludes that a person who sends a unilateral, unsolicited communication has no reasonable expectation that the lawyer is willing to discuss forming a relationship, so the duties owed to prospective clients under SCR 20:1.18 are not triggered, provided the lawyer did nothing (such as a website inviting submissions) to create that expectation. A lawyer who advertises or invites email should use clear, short disclaimers stating both that no lawyer-client relationship is formed and that the communication is not confidential; routing email to nonlawyer staff does not avoid the rule's duties.

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This page answers the general question as of 2011. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.

Currency note: this opinion is from 2011
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.
View original ethics opinion (PDF)

Plain-English summary

Opinion EF-11-03 (July 29, 2011) addresses when a person who contacts a lawyer through a website or email becomes a "prospective client" owed the duties of confidentiality and loyalty under SCR 20:1.18, which took effect July 1, 2007. The committee explains that prospective clients receive some, but not all, of the protections owed to clients, and that a person who is not a prospective client receives none of the rule's protection. The classification therefore controls whether a lawyer owes duties to someone who sends information electronically.

The committee reads SCR 20:1.18(a)'s definition (a person who "discusses with a lawyer the possibility of forming" a relationship) through ABA Comment [2], which limits it: not everyone who communicates information is protected. Two requirements are inherent in the definition. First, good faith: a person who shares information as a strategy to disqualify the lawyer from representing an adversary is not a prospective client, and the lawyer may raise the absence of good faith as a defense to disqualification. Second, a reasonable expectation that the lawyer is willing to discuss forming a relationship. Merely disseminating contact information, practice areas, and types of clients served does not invite the submission of confidential information or create that expectation, and a person can ask about availability without unilaterally disclosing private facts. The committee identifies three policies the reasonable-expectation requirement balances: broad access to legal services, trust and communication with consulted lawyers, and protecting current clients from conflicts manufactured by unilateral disclosures.

Applying this, the committee concludes that a lawyer owes no duty of confidentiality to information in an unsolicited email "received out of the blue from a stranger," using two examples (an adverse party emailing a lawyer who is considering the other side, and a job-seeker emailing eleven employment lawyers including the company's counsel). The analysis changes when the lawyer's own conduct invites contact: a website that specifically requests or invites submission of information about a possible representation will create a "discussion" under Rule 1.18 when a visitor submits the requested information, and imprecise website language without a clarifying disclaimer can make the visitor's submission reasonable. To avoid creating duties, a lawyer who advertises or invites email should use disclaimers with two separate, clear warnings, that no lawyer-client relationship is formed and that communications are not confidential, kept short and understandable to a layperson (the opinion supplies example language). Finally, routing unsolicited email to nonlawyer staff does not avoid SCR 20:1.18; information received remains within the firm and subject to imputation under SCR 20:1.10.

In practice

Under this opinion, conduct matching its fact pattern is treated as follows. As the rules stood at the time of the opinion, a Wisconsin lawyer ordinarily owed no confidentiality duty to a stranger's unilateral, unsolicited email and could use that information, provided the lawyer's website or advertising did not invite the submission. The committee concludes that a website specifically inviting information about a possible representation can create prospective-client duties, that lawyers who advertise or invite email should post short, clear disclaimers stating both that no relationship is formed and that communications are not confidential, and that routing email to nonlawyer staff does not avoid the rule, because information remains imputed within the firm under SCR 20:1.10.

Common questions

Q: Does an unsolicited email from a stranger make the sender a prospective client?

A: Usually not. The committee concludes that a unilateral, unsolicited communication carries no reasonable expectation that the lawyer would discuss a relationship, so SCR 20:1.18 duties are not triggered absent something the lawyer did to invite it.

Q: When does a website create duties to someone who emails?

A: When it invites submissions. The committee concludes that a website specifically requesting or inviting information about a possible representation creates a "discussion" under Rule 1.18 when the visitor submits that information.

Q: What should a disclaimer say?

A: Two clear warnings. The committee concludes a disclaimer should state both that no lawyer-client relationship is formed and that communications are not confidential, kept short and understandable to a layperson.

Q: Can routing email to nonlawyer staff avoid these duties?

A: No. The committee concludes that using nonlawyer staff to screen inquiries does not relieve the lawyer of SCR 20:1.18 duties, because the information stays within the firm and is subject to imputation under SCR 20:1.10.

Background and rules framework

The opinion interprets SCR 20:1.18 / Model Rule 1.18 (duties to prospective clients, including the screening provision in 20:1.18(d)(2)), SCR 20:1.6 / Model Rule 1.6 (confidentiality), and SCR 20:1.10 / Model Rule 1.10 (imputation within a firm). The committee relies heavily on ABA Formal Opinion 10-457 (lawyer websites) and on the Restatement (Third) of the Law Governing Lawyers sections 14 and 15.

Citations and references

Rules of Professional Conduct:

  • Wis. SCR 20:1.18, 20:1.18(a), 20:1.18(d)(2) / Model Rule 1.18 (prospective clients; screening)
  • Wis. SCR 20:1.6 / Model Rule 1.6 (confidentiality)
  • Wis. SCR 20:1.10 / Model Rule 1.10 (imputation)

Other opinions cited:

  • ABA Formal Op. 10-457: lawyer websites and when a website creates a Rule 1.18 discussion
  • ABA Formal Op. 90-358: protection of information imparted by a prospective client
  • San Diego Ethics Op. 2006-1; Iowa Op. 07-02; Arizona Op. 02-04: no confidentiality for foisted unsolicited information

See also

Source

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