Online Questionnaire Submitted by Prospective Clients Confidential Despite Waiver of Attorney-Client Relationship

Andrew Barton et al. v. United States District Court for the Central District of California, 2005 WL 1355481 (9th Cir. 2005)

A law firm posted a questionnaire on the Internet to gather information regarding class members for potential litigation against SmithKline Beecham Corporation (“SmithKline”). The action under consideration was for injury related to use of the anti-depressant medication Paxil. The firm decided to pursue the matter, and SmithKline sought production of completed questionnaires in order to compare responses to plaintiffs’ deposition testimony. U.S. Judge Mariana Pfaelzer held that confidentiality was waived via disclaimers on the questionnaires, despite the questionnaires constituting preliminary consultations with attorneys which are normally privileged. She ordered production of the four trial plaintiffs’ questionnaires, and plaintiffs sought a writ of mandamus to reverse this decision arguing that the questionnaires are subject to attorney-client privilege.

The questionnaire was worded such that it was unclear whether those submitting answers would be offering themselves as potential clients. If they were, answers would be subject to a presumption of privilege under California law. The document was titled “PAXIL WITHDRAWL LITIGATION INITIAL CONTACT” and its stated purpose was to gather information. Responses were solicited from “loved ones” as well as from potential class members.

The questionnaire contained disclaimers, with which the law firm was trying to protect itself from committing to a large number of attorney-client relationships and the attendant potential malpractice exposure. Those filling it out had to agree that it did not constitute a request for legal advice nor create an attorney-client relationship.

There was evidence both for and against the holding by Judge Pfaelzer that plaintiffs were seeking representation with regards to this matter by filling out the questionnaires.

Arguing that they were [seeking representation] is (1) the response of at least one of them that he was trying “to get in the class action,” (2) the nature of the information they provided (detailed accounts of their psychological and physical symptoms and medical histories relating to Paxil), (3) the context of supplying information to lawyers who apparently were bringing a Paxil class action, and (4) the ultimate representation of these four plaintiffs. Arguing that they were not was (1) the elusive wording of the questionnaire, (2) the disclaimers, (3) the response of at least one of them that she was furnishing information and “if they needed me, call me,” and (4) the law firm’s statement that the lawyers were attempting to “gather information about potential class members,” not that they were soliciting them as clients.

The questionnaire is ambiguous, but the plaintiffs should not be penalized for the law firm’s ambiguity. It is their privilege, not any right of the lawyers, that is at stake. A layman seeing the law firm’s internet material would likely think he was being solicited as a potential client.

The Ninth Circuit held that the law firm should not have used ambiguous language regarding the firm’s commitments in its questionnaire, but there was no disclaimer of confidentiality as found by the district court. The disclaimer of an attorney-client relationship did not constitute a disclaimer of confidentiality. Attorney-client confidentiality covers consultations for the purposes of retaining counsel. While plaintiffs disclaimed the purpose of “request[ing] legal advice,” they did not disclaim the purpose of “securing legal advice.”

“The changes in law and technology that allow lawyers to solicit clients on the internet and receive communications from thousands of potential clients cheaply and quickly do not change the applicable principles.”

The writ of mandamus was granted, vacating the district court’s order compelling disclosure of the questionnaires.

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