3 Considerations Regarding Email Contact Form Disclaimers

Embedded contact forms are an efficient way for lawyers to allow their website visitors to contact them. Like other aspects of attorney advertising, contact forms may be subject to regulation. In many jurisdictions, certain disclaimers might need to accompany your website contact form in order to comply with state laws governing lawyers. We discuss three considerations with respect to disclaimers that you may want to include with your contact form. This blog post is not legal advice and is provided for informational purposes only.

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As discussed in this recent post, attorneys marketing their legal services on the Internet should be mindful of whether they need to include certain general disclaimers on their websites. An area that may call for a slightly more specific disclaimer is your site’s email contact form, which is a key means through which visitors to your site will communicate with you. While your contact form should be inviting and user-friendly, it also provides an opportunity to set clear expectations for site visitors regarding the privacy of messages transmitted through your site, and also about the extent to which an attorney-client relationship is or is not created by the act of communicating with your office online. Below are a few specific warnings to consider incorporating into this kind of disclaimer language.

1) Contacting You Online Does Not Create an Attorney-Client Relationship

While you may have already stated this in your general disclaimer, it bears repeating in the vicinity of your email contact form that a prospective client’s use of the form does not create an attorney-client relationship. You can take this one step further by explaining that you do not agree to represent someone simply because they have sent information via your contact form. Indeed, making this as clear as possible may also provide you with some added insurance against running afoul of the general prohibition on misleading statements in attorney advertising materials by inadvertently giving the impression that if someone contacts you online, you become their attorney.

2) Information Sent Via Your Contact Form Is Not Confidential

Another critical point you may wish to highlight in this context is that no information transmitted through your website will be treated as confidential. In this context it may be wise to advise clients not to send sensitive or confidential data through your contact form, and remind them of the risk associated with sending information of any kind over the Internet. Regardless of the wording you choose, it is likely best to communicate the level of privacy that your clients should or should not expect in the most plain, straightforward language possible.

3) Your State May Have Rules Governing the Placement and Clarity of Your Disclaimer

State bars in a number of jurisdictions have addressed these issues to one degree or another, and yours may be among them. For example, the last point above was addressed and taken a step further by the State Bar of California’s Standing Committee on Professional Responsibility and Conduct in Formal Opinion No. 2005-168, in which it considered whether lawyers who provide a means for prospective clients to contact them through their websites owe a duty of confidentiality to those visitors if they disclaim the formation of both a “confidential” and an attorney-client relationship on the site.

The Committee found that because the lawyers in this scenario invited site visitors to contact them for legal help but did not state clearly enough that the information submitted would not be treated as confidential, they had not effectively disclaimed their duty of confidentiality. Specifically, saying that no “confidential relationship” would be formed was not sufficiently clear for a lay person to conclude that information transmitted via the contact form would not be considered private. And of course, disclaiming any attorney-client relationship would not by itself have absolved the attorneys of the duty of confidentiality. Ultimately the disclaimer was found to not only be ineffective, but the information received from a prospective client in this context could be used to potentially disqualify the lawyers from relevant case matters.

Similarly, the Virginia State Bar’s Legal Ethics Opinion 1842 states that a lawyer may disclaim the formation of an attorney-client relationship, as well as the duty of confidentiality in relation to an email contact form, but that the disclaimer language must be clear and conspicuous. The opinion goes on to advise the use of a click-through disclaimer, or some other requirement that site visitors show their assent to these terms of use for the contact form. The opinion states that in the absence of such a disclaimer, a form that “specifically invites” site visitors to submit information for the purpose of a case evaluation could reasonably lead visitors to expect that their information would be kept confidential. The opinion further provided that the analysis is different when a law firm website simply features a lawyer’s email address with no prompt to contact the firm. The reasoning here is that this is akin to listing a phone number in the yellow pages, which a prospective client cannot use to impose a duty of confidentiality or an attorney-client relationship upon a lawyer in the absence of other relevant circumstances.

As always, we encourage you to carefully review the requirements set forth by the state bar in your jurisdiction before proceeding with or revising your website disclaimer(s). There may also be other issues that are advisable to address in your email contact form disclaimer, such as the necessity of your firm performing a conflicts check before undertaking the representation of any particular client. Ultimately, and as with any other information you include on your site, explaining the rights and responsibilities at issue in a straightforward, accurate, and visible manner can help you communicate clearly with prospective clients, conform to legal ethical rules, and grow your business.

Disclaimer: The information in this blog post (“post”) is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. No information contained in this post should be construed as legal advice from Justia Inc. or the individual author, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting on the basis of any information included in, or accessible through, this post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country or other appropriate licensing jurisdiction.