State Bar of South Dakota

Ethics Opinion 2002-2

April 22, 2002

Attorney’s firm has a website on the Internet. The website contains a jump site allowing the viewer to send an e-mail message to the attorney. The attorney receives an e-mail regarding a potential Will contest that does include background facts but no identifiable information about the sender other than the sender’s e-mail address. The e-mail ends by stating that the sender would really like to have an answer to her inquiry and thanks the attorney.

DISCUSSION

An attorney’s ethical obligations are triggered once an attorney-client relationship has been formed. See e.g. Rules 1.1 and 1.6. In previous Ethics Opinions, 99-5, 95-15 and 93-15, the Ethics Committee adopted the definition of “client” contained in SDCL 19-13-2. That definition encompasses not only a person who is “rendered professional legal services by a lawyer” but also includes a person “who consults a lawyer with a view to obtaining professional legal services from him.” Under this definition, the sender of an e-mail may be deemed a “client.” Further, most websites contain a statement inviting the viewer to contact the attorney and many provide a jump site allowing the viewer to send the attorney an immediate e-mail. Therefore, a stronger argument can be made that a person accepting the invitation on the website was sending the e-mail with a “view toward obtaining professional legal services.” However, the precise determination of whether an attorney-client relationship has been formed requires application of substantive law which is beyond the purview of this Committee.

It is the opinion of the Ethics Committee that e-mail communications should be treated the same as any other communication to an attorney, i.e., telephone, facsimile, U.S. mail. The response of what to do with an “unsolicited” or “solicited” e-mail therefore is the same as what should be done when an attorney receives an inquiry from a prospective client by some other medium. While not mandated by the Rules of Ethics, legal authorities suggest the use of a non-engagement communication so as to avoid any confusion regarding the creation of the attorney-client relationship.

Susan Brunick Simons, Chair
Ethics Committee