The Pasadena, California firm of Baum Hedlund was overwhelmed with inquiries about its lawsuit against the makers of Paxil, an anti-depression drug. So the firm took the modern approach: it set up a website that asked questions about the potential clients' symptoms. A US District Court judge ruled that the communications are not privileged or confidential and that the defendant can obtain them through pre-trial discovery. But the Ninth Circuit accepted a writ petition -- which doesn't often happen -- and will hear an expedited appeal this Thursday. (I would link to Peter Blumberg's well-written article in the Daily Journal, but, again, that publication remains internet-challenged.)
The archetypal meeting between a lawyer and a potential client, held in the lawyer's conference room, is both privileged and confidential. Should internet communications be treated any differently? My view: these types of communications ought to be treated as confidential and privileged, if the lawyers take the time to build a thoughtful website that educates the potential client of what it means to leave information there. Some of the key allegations in the dispute are that Baum Hedlund's website did not indicate that the information left there was to be treated as privileged and confidential and did not state that the people filling out the questionnaire were considered as potential clients.