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A recent decision from the 9th U.S. Circuit Court of Appeals bodes well for the legions of plaintiffs’ law firms that host class action Web sites, but much remains untested for attorneys using the Internet to connect with the masses. The 9th Circuit recently ruled that Los Angeles-based Baum Hedlund was not required to provide Paxil maker GlaxoSmithKline PLC with answers to questionnaires that consumers completed on the law firm’s Web site about their use of the antidepressant. The court found that even though the Web site stated that answering the questionnaire would not create an attorney-client relationship, California law required that the information remain privileged and out of the drug maker’s reach. Barton v. SmithKlineBeecham, No. 05-71086. Although Baum Hedlund scored one for the plaintiffs in the California discovery scuffle, class action Web sites developed by law firms continue to present complications related to jurisdiction, applicable laws, ethics rules and more, which courts have yet to address. “As the technology changes, the balance of considerations changes,” said John Westermeier, a partner in DLA Piper Rudnick Gray Cary’s Reston, Va., office who is not involved in the California case. Mosaic of requirements The rules and laws governing Web sites vary from state to state, and complying with the mosaic of requirements can be difficult, if not impossible for law firms, said Westermeier, author of “Ethics and the Internet,” published last year in the Georgetown Journal of Legal Ethics. Most states require law firms to keep records of their Web sites’ appearance and any changes they make to them, but the specific contact information that firms must include, even the font size of certain information and the language they must use, varies widely, he said. But it appears law firms are willing to risk the uncertainty. The Internet has revolutionized the way they reach out to potential class members and the way they disseminate information to the public. Stephen Cassidy, an attorney and director of marketing at Lieff Cabraser Heimann & Bernstein of San Francisco, said that beginning with his firm’s phen-fen litigation in the late 1990s, the Internet enabled it to represent many clients who otherwise would not have been familiar with the firm. But it also gives an advantage to competitors, sometimes significantly smaller ones, he said, who can create the image of a powerful firm without the heft to substantiate it. Most of the nation’s top class action firms have Web sites that enable consumers to get information about the lawsuits, and many sites allow consumers to sign up as part of a class online. For example, Baron & Budd of Dallas and Lerach Coughlin Stoia Geller Rudman & Robbins of San Diego both enable consumers to download plaintiff certification forms to join securities class actions. Others provide up-to-the-minute information on current class actions and have links to attorneys who serve as contacts. In general, the American Bar Association’s Model Rules of Professional Conduct require that lawyer communication, which includes Web sites, should not be false or misleading. Many states have determined that lawyer Web sites are advertising and have applied their own attorney advertising rules to those sites. But Westermeier noted a growing concern among legal ethics professionals that lawyer Web sites have moved away from the general-solicitation realm, such as billboard advertising, to direct solicitation, pejoratively known as ambulance chasing. If lawyers are directly soliciting clients, then the restrictions on the contact become much more onerous, he said. In the 9th Circuit case, the court considered Baum Hedlund’s questionnaire that asked potential clients about symptoms they or a “loved one” may have suffered from Paxil use. The court’s decision was based on an unusual move by the plaintiffs, who filed a writ of mandamus, which, when granted, specifically compelled the U.S. District Court for the Central District of California to block GlaxoSmithKline’s access to the information. Arguing against the writ, GlaxoSmithKline asserted that it was entitled to the questionnaire answers as nonprivileged communication since the consumers were not Baum Hedlund clients. The company pointed to a disclaimer that the law firm included on its Web site requiring consumers to check “yes” before submitting their answers. The disclaimer stated that completing the questionnaire did not constitute a request for legal advice and did not form an attorney-client relationship. But the three-judge panel relied on California law, which applies privilege to pre-employment communications between an attorney and a prospective client if the client has a “view to employing the attorney” in the course of the communication. Finding that those who completed the questionnaire likely had such a view, the panel further determined that the language in the disclaimer was vague since it did not specifically state that checking “yes” meant waiving confidentiality. “A risky and expensive trip to this court could have been avoided by a plain English explanation on the website,” wrote Judge Andrew J. Kleinfeld, who authored the opinion for the panel. It is the relatively low cost and effectiveness of maintaining a Web site that makes it such an attractive option for law firms, said Cassidy of Lieff Cabraser. He said the money that firms may have spent on a month-long newspaper advertising campaign in a mass tort case now can more than pay for deploying and promoting a Web site. Florida attorney Peter Price developed a class action Web site when his firm filed a lawsuit against publicly traded Corinthian Colleges Inc., but it became problematic. Filed in Broward County, Fla., Satz v. Rhodes College, No. 04-03954-03, alleged that the company and its for-profit college subsidiaries engaged in unfair business practices by misrepresenting the schools’ accreditation and transferability of credits. After the Law Offices of Peter Price issued a press release and established a Web site that it said was designed to locate additional victims and witnesses for the lawsuit, Corinthian Colleges filed a defamation action. The suit, Corinthian Colleges v. Price, 2005 Cal. App. Unpub. Lexis 4470, claimed that the release and the Web site falsely asserted facts about the company’s accreditation, credits transfers and business practices. In an unpublished decision issued in May, the California 4th District Court of Appeal affirmed a lower court’s decision that threw out the company’s case under the state’s anti-SLAPP law. The law, whose acronym stands for strategic lawsuit against public participation, generally protects expression based on public concerns and awards fees if the party defending a SLAPP suit prevails. The Law Offices of Peter Price is in the process of determining fees and costs, said Michael Satz, a paralegal with the firm and a plaintiff in the lawsuit. He said the action against Corinthian Colleges is in arbitration. Common mistake A common mistake law firms make using the Internet is boasting about what their attorneys can accomplish, said Lieff Cabraser’s Cassidy. In general, ethics rules require attorneys to be truthful in their public statements. But attorneys can face problems when they describe their specialties, which may be allowed in one jurisdiction and not another, he said. William Cohn, an attorney in Memphis, Tenn., ran into some trouble last year with his Web site. He had to defend a lawsuit in a Tennessee federal court brought by a woman who claimed that he had violated the Fair Debt Collections Practices Act in representing a credit card company seeking to collect on an unpaid balance. The plaintiff, Anita Derenick, claimed that Cohn ran afoul of the law when he pursued collection on the debt after it had been discharged in her bankruptcy. The court, in Derenick v. Cohn, 2004 U.S. Dist. Lexis 25548, refused to dismiss the lawsuit against Cohn, finding that since he regularly collected debts, the fair debt act might apply. Part of the court’s reasoning was based on the attorney’s Web site, which listed “account collection” as one of his law firm’s 12 areas of practice. It also stated that the attorney had “over 25 years of experience in creditors’ rights.” Such a representation, the court concluded, at least created a question of fact as to whether the attorney was a debt collector. Westermeier, with DLA Piper, cautions that many firms fail to recognize the implications of their Web site’s contents. “They are really exposed,” he said.

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