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Law firms may use a live chat support service on their website to collect information from users who are looking for counsel, the North Carolina bar's ethics committee advised July 15 (North Carolina State Bar Ethics Comm., Formal Op. 2011-8, 7/15/11).
Although it concluded that no ethics rules are violated when a law firm uses such a service to generate leads, the committee cautioned lawyers not to disclose or exploit secrets acquired from a prospective client via a live chat service. Furthermore, it said, getting information from would-be clients in this way could conceivably give rise to disqualifying conflicts with current clients.
A law firm informed the committee that it wants to use a live chat support service. After downloading a program purchased from the service, the firm's website will display a “button” that shows a person with a headset and reads “Click Here to Chat Live.”
A visitor who clicks the button will be able to have a typed conversation in real time with an agent identified as a “law firm staff member” or an “operator.” The agent will use a script to guide the visitor through a series of screening questions.
Typically, the agent will learn about the facts of the potential case and will obtain contact information from the visitor. The agent will then e-mail a transcript of the chat to the law firm. In some instances, the firm will pay only for transcripts that contain the visitor's contact information.
Depending on the software version, a popup window may also appear on the screen asking visitors if they would like “live help” and offering to answer questions. The popup is generated by the software program purchased from the live chat service, and the live agent is engaged only after the visitor clicks on the chat button.
In another variation, the chat button and popup window are displayed on the screen and a voice says something like, “Hi, we are here to answer your questions. Please click ‘yes' for live help.”
A law firm's use of this type of service does not in itself violate North Carolina's Revised Rules of Professional Conduct, the committee concluded. Use of such a service is not improper under Rule 7.3, which forbids real-time electronic contact with potential clients, it found.
The opinion acknowledges that an interactive typed conversation with a live agent provided by the service constitutes a real-time electronic contact. But for two reasons, the committee determined that the contact does not offend Rule 7.3.
First, it said, Rule 7.3 applies only to lawyer-initiated contact, which is lacking in this situation. With the live chat service described by the inquiring firm, the website visitor makes the initial contact by visiting the law firm's website, and it is appropriate at that juncture for the firm to offer the visitor live assistance, the panel explained.
Second, the committee found that the circumstances surrounding this type of real-time electronic contact do not implicate the policy concerns underlying Rule 7.3. Visitors are not pressured or intimidated; they can ignore the live chat button or indicate with a click that they do not want to converse, the opinion notes.
In reaching its conclusion, the committee drew on Philadelphia Ethics Op. 2010-6, 26 Law. Man. Prof. Conduct 432 (2010), which advised that solicitation of prospective clients through blogs and other internet social media does not violate the rule that forbids lawyers to engage in real-time electronic communications for the purpose of generating new legal business.
The Philadelphia opinion pointed out that with the increasing sophistication and ubiquity of social media, internet users readily understand that they can simply ignore electronic overtures.
Nevertheless, the committee recommended several precautions for lawyers to take if they decide to use a live chat support service in their practice.
For one thing, it said, law firms should ensure that visitors who elect to take part in a live chat session with a nonlawyer aren't misled to believe that they are conversing with a lawyer. Identifying the nonlawyer agent as an “operator” seems appropriate, the committee said, while a designation such as “staff member” would require a disclaimer that the agent is not an attorney.
“[A]cquiring information from a prospective client via the live chat service could create a conflict of interest with a current client that would require withdrawal.”
North Carolina Formal Ethics Op. 2011-8
Moreover, the opinion recommends that law firms should make sure nonlawyer agents chatting with visitors do not give any legal advice, and firms should be wary of creating an inadvertent lawyer-client relationship.
The committee also urged firms to be mindful of duties and consequences that may result from these interactive communications under the ethics rule on obligations to prospective clients.
Rule 1.18 provides that a person who discusses with a lawyer the possibility of forming a client-lawyer relationship in a matter is a prospective client, and the lawyer generally may not use or reveal information learned in the consultation even when no client-lawyer relationship results, the panel observed.
Furthermore, Rule 1.18 prohibits a lawyer from representing a client with interests materially adverse to a prospective client in the same matter or a substantially related matter if the lawyer acquired information from the prospective client that could be significantly harmful to that person in the matter. “Therefore, acquiring information from a prospective client via the live chat service could create a conflict of interest with a current client that would require withdrawal,” the opinion states.
Full text at http://www.ncbar.com/ethics/printopinion.asp?id=847 .
Copyright 2011 the American Bar Association and The Bureau of National Affairs, Inc. All Rights Reserved.
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