Internet communications between potential clients and a law firm is privileged, even if the online questionnaire specifies that it does not create an attorney-client relationship, said the 9th U.S. Circuit Court of Appeals. Thus, plaintiffs need not disclose the questionnaires they filled out to inquire about legal representation.
The case, Barton v. U.S. District Court for the Central District of California, involved plaintiffs who sued GlaxoSmithKline in a product liability case. Thousands of product users found legal representation after filling out an online questionnaire form maintained by the L.A. law firm of Baum Hedlund. The form said:
The purpose of this questionnaire is to gather information about potential class members who have suffered withdrawal symptoms as a result of stopping the use of Paxil or decreasing the dose of Paxil in an effort to stop taking it. … I agree that the above does not constitute a request for legal advice and that I am not forming an attorney-client relationship by submitting this information.
The defense attorneys sought the plaintiffs’ forms to see if their initial complaints matched the claims they asserted in the lawsuit. The plaintiffs asserted the attorney-client privilege, but the district court ordered the forms disclosed. The 9th Circuit reversed, calling the district court’s ruling "clearly erroneous as a matter of law."
Prospective clients’ communications with a view to obtaining legal services are plainly covered by the attorney-client privilege under California law, regardless of whether they have retained the lawyer, and regardless of whether they ever retain the lawyer.
Without the privilege, "people could not safely bring their problems to lawyers unless the lawyers had already been retained."
We have consistently received the same results in several of our wage and hour class actions, most recently in the T.G.I. Friday's case. Putative class members are not actually our clients until and unless we are retained, or the class is certified. However, every single time a class member contacts us, they are looking for legal advice and they are expecting confidentiality. If those expectations are not met, no one can ever feel comfortable seeking legal advice and representation from an attorney. Wage and hour class action attorneys can take comfort in continuing to use modern technology to communicate with prospective clients and putative class members.