MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 2004-03
Would a prepaid legal service company's hosting a website for interaction between its subscribers and the law firms it has retained to provide legal services to those subscribers, impermissibly interject a third party into attorney-client discussions, thereby negating attorney-client privilege between subscribers and provider firms?
According to you inquiry, Company X is a publicly traded company which creates and markets a legal representation program to the general public. Persons availing themselves of this program become members of the program and pay Company X a monthly premium. Company X, in turn, enters into agreements with one law firm in each of the 50 states and the District of Columbia whereby the law firm becomes a provider firm to the members who enroll in Company X's program. Pursuant to the program, members receive legal advice from the provider law firms either for free, on a subsidized basis, and/or at a discounted rate. Company X pays each provider law firm a monthly retainer based on the pro rata number of memberships in the provider law firm's jurisdiction, but the provider firm pays no referral fees to Company X. You state that your law firm is the only provider law firm in the State of Maryland, as well as the District of Columbia.
You state that most of the contact between your law firm and the members is via a toll-free telephone number which Company X provides to each member to contact the law firm directly. You state that the computer program used by your law firm is networked with Company X, but that Company X does not have access to "internal notes of the intake" created by your law firm in its discussions with members, and we accept on its face your representation that Company X has no access to information protected by the attorney/client privilege.
The thrust of your inquiry is whether it would be ethical for Company X to host an internet service whereby its members and the provider law firms could communicate over the internet, without violating the attorney/client privilege, whether in violation of Rule 1.6 of the Maryland Rules of Professional Conduct, or the attorney/client privilege as an evidentiary matter. You state that the primary purpose of having Company X, rather than the provider law firm, host an internet site is to substantially reduce the administrative costs for the provider law firm.
Whether or not such an arrangement would violate Rule 1.6 depends upon the nature of the information communicated by the member to Company X's host web site, which information, in turn, would be e-mailed by Company X to the provider law firm. If the information imparted by the member to Company X is confidential as defined in Rule 1.6, then there would likely be a waiver of the attorney/client privilege. Similarly, if the provider law firm communicates its advice to the member by e-mailing it through Company X, there would also be a violation of Rule 1.6. You suggest that Company X would include in its web site various disclaimers, including the possibility that the internet communications might result in a waiver of the attorney/client privilege. This Committee believes that such a disclaimer may not be understood by the members and, arguably, might cause the provider law firm to be in violation of Rule 1.3, which requires that a lawyer act with reasonableness and promptness in representing a client, because the provider law firm would not have the opportunity to fully explain to the members the implications of a waiver of the attorney/client privilege. See also Ethics Docket 01-03, which pertains to a differently structured legal services plan, but which, nevertheless, presented a similar concern about loss of the attorney/client privilege; this Committee concluded that "[s]imply, participating in the program you describe if a client's privilege is thereby waived violates the lawyer's duties to the client. Competent representation requires more."
Obviously, if a member does not disclose confidential information to Company X in its capacity as host of the web site, Rules 1.3 and 1.6 would be inapplicable. However, based on your inquiry, it would seem that the information communicated by the member would in many, if not most, instances involve confidential communications because the basic information about the member and which provider law firm would service the jurisdiction in which that member needed legal advice was already known to the member, Company X, and the provider law firm.
You acknowledge that as an alternative to having Company X host the internet web site, the provider law firm could host the web site, thereby eliminating Company X, a third party, from being privvy to communications between the member and the provider law firm. Although you state that such an arrangement would be more costly to the provider law firms, and there might be some impact on the willingness of law firms to agree to participate in such a plan, that does not change this Committee's view that the internet web site should be hosted by the provider law firms, rather than Company X, in order to avoid the likelihood of violations of Rules 1.3 and 1.6.
You also raise several other issues in your inquiry. The Committee appreciates your concerns and procedures for doing a conflicts check whenever a member avails himself or herself of your firm's services. Obviously, a conflicts check is critical regardless of whether a provider law firm's representation of a member is generated by phone, the internet, or otherwise.
You also raise a concern as to whether there are any ethical problems with communicating with a client over the internet given the possibility of third parties breaching the security of such internet communications. You ask whether there are any specific requirements imposed on a law firm concerning internet security, other than the law firm taking "reasonable security precautions." The Committee agrees that the standard, as articulated in your letter, is appropriate and would apply whether the attorney and client communicate by phone, mail, in person, or otherwise.
We trust that the foregoing is responsive to your inquiry. The Committee is attaching Ethics Dockets 92-45 and 01-03, the latter referenced above, for your information concerning various issues which have been raised and addressed by this Committee concerning legal service plans.
REFERENCES:
Opinions of the Maryland Ethics Committee: 92-45 and 01-03
Maryland Rules of Professional Conduct: 1.3 and 1.6