Email, Lawyers, Disclaimers, Confidentiality and Conflicts

As lawyers, we have to always worry about “conflict checks” so that we are not allowing an adverse party to disclose their “secrets” when we may represent the “other side.”

The Pre-Emptive Conflict Strike

This is a most common problem for family law lawyers, especially in smaller towns. What usually happens is that a couple breaks up, and one spouse knows there are only a handful of lawyers in town that practice family law. That one (vindictive) spouse then tries to contact and discuss his/her case with every lawyer in town, intending, of course, to hire only one of them. If he/she actually gets in touch with the other lawyers and tells them confidential matters, chances are that those lawyers can no longer represent the other spouse due to a conflict of interest.

Email Complicates Things

In the “good old days” before email and the internet, lawyers protected themselves and their clients from “conflicts” by either not answering the phone, or by screening callers through staff. Another method was to actually talk with the person, but carefully control the flow of information so as to not receive any “confidential” information until such time as the lawyer actually wants to represent the client.

If a lawyer has an internet site, along with an email address, the mode of communication has changed. A potential client could send a very long email containing confidential matters to the “target” lawyer, and when the lawyer opens the email, voila, instant conflict.

Great Article on the Subject

I found a great article on the subject by a law professor at Mercer named Professor David Hricik. Professor Hrick analyzes ethics opinions and offers good suggestions for law firms to protect themselves and their clients form problems arising from email conflicts.

You can read his article here.

Chris Nichols
www.NicholsTrialLaw..com