In Barton v. District Court, ___ F.3d ___ (9th Cir. June 9, 2005), the Ninth Circuit held (applying California law) that the attorney-client privilege protected interview "intake" forms created by plaintiffs' counsel when interviewing potential clients who contacted them via their website, even though the interviews did not create a formal attorney-client relationship that would, for example, require counsel to file suit on the potential client's behalf before the statute of limitations ran. The Ninth Circuit decided to review the issue in the context of a petition for a writ of mandamus, explaining the potentially broad importance of the issue:
[A]lthough only four questionnaires are before us, thousands more are waiting in the wings because this is a consolidated multidistrict litigation with thousands of plaintiffs. Of even greater salience is the fundamental importance of the attorney-client privilege to our adversarial system of justice. What is "new" about the case is attorneys trolling for clients on the internet and obtaining there the kind of detailed information from large numbers of people that used to be provided only when a potential client physically came into a lawyer's office. Two things had to happen to bring this about: the change in law in the 1970s that permitted attorney advertising, and the sufficiently widespread use of the internet, within the past five or ten years, that makes internet advertising worthwhile.Slip op. at 6746 (footnotes omitted). The Court then concluded: "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." Id. at 6749.
This is a significant victory for plaintiffs' class action firms, as such "intake" forms are frequently the subject of heated discovery disputes. The forms should be protected whether or not they exist due to internet "trolling," a pejorative term I don't think the Court needed to use. (If a potential client contacts me as a result of this blog (which has happened), am I "trolling"?) Congratulations to Karen Barth. [And a hat tip to Wage Law.]