FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANDREW BARTON; KENNETH 

BORENSTEIN; GERRI MARIN; TRISHIA

MEDEMA; and JAMES MEYTHALER,

Petitioners,

v. No. 05-71086

UNITED STATES DISTRICT D.C. No.

COURT FOR THE CENTRAL  CV-01-07937-MRP

DISTRICT OF CALIFORNIA,

Respondent, OPINION AND

ORDER

SMITHKLINE BEECHAM

CORPORATION, dba

GlaxoSmithKline, A Pennsylvania

Corporation,

Real Party in Interest. 

Petition for Writ of Mandamus to the

United States District Court for the

Central District of California

Mariana R. Pfaelzer, District Judge, Presiding

Argued and Submitted

May 12, 2005—San Francisco, California

Filed June 9, 2005

Before: Andrew J. Kleinfeld, Michael Daly Hawkins, and

Susan P. Graber, Circuit Judges.

Opinion by Judge Kleinfeld

6737
COUNSEL

Robert M. Brava-Partain and Karen Barth Menzies, Baum

Hedlund, A Professional Corp., Los Angeles, California, for

the petitioners. 

James D. Miller, King & Spaulding LLP, Washington, D.C.,

and Vernon I. Zvoleff, Drinker Biddle & Reath LLP, San

Francisco, California, for the real party in interest.

OPINION

KLEINFELD, Circuit Judge: 

We grant a writ of mandamus to prevent disclosure of communications by prospective clients to their lawyers. 

Facts.

Plaintiffs sued SmithKline Beecham Corporation, which

does business as GlaxoSmithKline. They claim injury from

Paxil, a medication manufactured by SmithKline. Plaintiffs

did not initiate contact with their lawyers by walking into the

law office. Instead, the law firm posted a questionnaire on the

internet, seeking information about potential class members

6740 BARTON v. UNITED STATES DISTRICT COURT
for a class action the law firm contemplated.1

 The district

court ordered plaintiffs to produce the four plaintiffs’ answers

to the questionnaire.2 Plaintiffs seek, and we grant, a writ of

mandamus vacating the district court’s order compelling production.3

The law firm that now represents the plaintiffs posted a

questionnaire relating to the antidepressant Paxil on the internet. Although the firm in its briefs calls the questionnaire an

“intake” questionnaire, it did not call it that on the net. The

law firm’s presentation on the web does not say that those

who answer the questionnaire are submitting themselves to

the firm as potential clients. 

The questionnaire is entitled “PAXIL WITHDRAWAL

LITIGATION INITIAL CONTACT.” Its introduction, in

boldface, says that its purpose is “to gather information.” The

subject of the information is “potential class members,” but

responses are requested, not only from potential class members, but also from “loved ones” who would presumably

include siblings, parents of adult children, and others who

knew of another person’s Paxil use, but who could not be

plaintiffs in a lawsuit for damages from Paxil.4

1The district court did not certify a class. A large number of Paxil cases

have been consolidated by the Judicial Panel on Multidistrict Litigation,

with five plaintiffs, including the four who returned questionnaires, to go

to trial first. 

2A motion to stay the order pending the petition for a writ of mandamus

was filed March 1, 2005, and granted by a motions panel of this court

March 23, 2005, and the matter was placed on a May calendar for argument. 

3There are five plaintiffs, but only four submitted answers to the firm’s

internet questionnaire. Thousands of other answers to the questionnaire

were submitted to the law firm, but the order being reviewed and the petition do not address the other questionnaires. The district court order says

“this Court GRANTS GSK’s motion to compel web site questionnaires

completed by the four trial plaintiffs.” 

4The boldface text states, in full: 

BARTON v. UNITED STATES DISTRICT COURT 6741
The questionnaire asks for extensive information about use

of Paxil and symptoms. At the end, it suggests that “you do

not sign nor return” a form that GlaxoSmithKline might send

requesting an authorization for release of medical records.

Then, in order to cause the filled-out questionnaire to be emailed to the law firm, the person filling it out has to check

a “yes” box. The “yes” box acknowledges that the questionnaire “does not constitute a request for legal advice and that

I am not forming an attorney client relationship by submitting

this information.”

5

The law firm, as it has acknowledged, was careful to avoid

committing itself to an attorney-client relationship. It might

(and did) receive many thousands of responses, and did not

The purpose of this questionnaire is to gather information

about potential class members who have suffered withdrawal

symptoms as a result of stopping the use of Paxil or decreasing the dose of Paxil in an effort to stop taking it. We will also

use your contact information to keep you updated on developments of the litigation including whether a class is certified,

either formally or for settlement purposes. 

If you believe that you or a loved one has been adversely

affected by GlaxoSmithKline, the makers of Paxil (generically

known as Paroxetine), please fill out the form below: 

5The “yes” box acknowledgment states, in full: 

I agree that the above does not constitute a request for legal

advice and that I am not forming an attorney client relationship

by submitting this information. I understand that I may only

retain an attorney by entering into a fee agreement, and that I am

not hereby entering into a fee agreement. I agree that any information that I will receive in response to the above questionnaire

is general information and I will not be charged for a response to

this submission. I further understand that the law for each state

may vary, and therefore, I will not rely upon this information as

legal advice. Since this matter may require advice regarding my

home state, I agree that local counsel may be contacted for referral of this matter. 

6742 BARTON v. UNITED STATES DISTRICT COURT
want to leave itself open to suits for malpractice to those who

answered, such as for letting the statutes of limitations run. 

More important than what the law firm intended is what the

clients thought. Here, there is ambiguity. On the one hand, the

form can be filled out by “a loved one” rather than by the

potential client, and the person sending it in has to acknowledge that he is not requesting legal advice and is not forming

an attorney client relationship by sending it in. The form also

states that the person will not have retained an attorney until

he signs a fee agreement and that “local counsel may be contacted for referral of this matter.” The form states that its purpose is to “gather information about potential class members,”

not to consider accepting them as clients. On the other hand,

the stated purpose of gathering “information about potential

class members” suggests that the firm is indeed trolling for

clients. 

The manufacturer sought the four plaintiffs’ questionnaires

in discovery “to juxtapose against what they are now claiming

in discovery to determine whether or not the two fit and

whether there’s any information that provides for fertile crossexamination at trial.” The plaintiffs opposed production on

the basis of the attorney-client privilege. No privilege relating

to confidential medical disclosures is asserted, no doubt

because the nature of the claims, damages from Paxil withdrawal, would make the medical information disclosed in the

questionnaires discoverable, if the same questions were put

fully to plaintiffs in interrogatories or depositions. 

The district court concluded that the attorney-client privilege did not apply because the disclaimer established that the

communications were not “confidential” and that checking

the “yes” box waived the privilege. The district court

acknowledged that under California law6 the privilege applied

6

It is undisputed that California law controls whether the questionnaires

are privileged, under the following sentence in Federal Rule of Evidence

501: 

BARTON v. UNITED STATES DISTRICT COURT 6743
to pre-employment communications with an attorney by a

prospective client with a view to employing the attorney.

Although the district court did not label any part of its decision “findings of fact,” its decision states that the law firm

posted the questionnaire online to find potential clients, that

the four individuals submitted answers “because they were

seeking legal representation,” and that as a result of submitting the questionnaires they obtained representation by the

law firm. 

What tipped the district court in favor of disclosure was the

checked “yes box” disclaimer that included “I agree that the

above does not constitute a request for legal advice and that

I am not forming an attorney client relationship by submitting

this information.” The district court concluded that the plaintiffs’ attorneys could not assert the attorney-client privilege

against the defendants when they insisted on “a disclaimer of

confidentiality” to protect themselves. 

Analysis.

Plaintiffs seek a writ of mandamus because once the information is out of the bag, you can’t stuff it back in. Defendant

opposes the writ, arguing that the disclaimers on the questionnaire establish that by submitting answers, the plaintiffs were

not seeking legal advice, and were not assured that their

answers would be confidential. 

[1] Mandamus is a “ ‘drastic’ ” remedy limited to “ ‘extraordinary situations.’ ”

7

 The writ may be denied even where,

However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule

of decision, the privilege of a witness, person, government, State,

or political subdivision thereof shall be determined in accordance

with State law. 

7

Spencer v. United States Dist. Court, 393 F.3d 867, 869 (9th Cir. 2004)

(quoting Kerr v. United States Dist. Court, 426 U.S. 394, 402 (1976)). 

6744 BARTON v. UNITED STATES DISTRICT COURT
on an appeal or petition for review, we would conclude that

the petitioner was correct. We apply the “Bauman factors” in

exercising our discretion whether to grant the writ:8

(1) The party seeking the writ has no other adequate

means, such as a direct appeal, to attain the relief he

or she desires. (2) The petitioner will be damaged or

prejudiced in a way not correctable on appeal. (3)

The district court’s order is clearly erroneous as a

matter of law. (4) The district court’s order is an oftrepeated error, or manifests a persistent disregard of

the federal rules. (5) The district court’s order raises

new and important problems, or issues of law of first

impression.9

Like all multi-factor tests, this one gives an appearance of

more precision than it really has, but it nevertheless furnishes

useful guidance. 

[2] The first and second factors are satisfied, because once

the questionnaires are disclosed to the defendant, the disclosure cannot be undone, by appeal or otherwise. But that does

not distinguish this case from the myriad discovery disputes

for which we do not grant interlocutory relief. There is nothing to support the fourth factor, “oft-repeated error,” or “persistent disregard” of the rules. 

[3] The third and fifth factors are determinative in this case,

particularly the fifth. As required by the fifth factor, the problem is “new and important.” Part of the importance is that,

although 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

8Bauman v. United States Dist. Court, 557 F.2d 650, 654-55 (9th Cir.

1977). 

9

Spencer, 393 F.3d at 869 (citing Bauman, 557 F.2d at 654-55). 

BARTON v. UNITED STATES DISTRICT COURT 6745
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,10

and the sufficiently widespread use of the internet, within the

past five or ten years, that makes internet advertising worthwhile. 

Of course, these reasons for granting the writ justify it only

if the “district court’s order is clearly erroneous as a matter of

law.”

11 We conclude that it is. 

The first determination the district court made was whether,

absent consideration of the disclaimer, the questionnaires

were submitted “in the course of” an attorney-client relationship12 and thus ordinarily protected under California’s

attorney-client privilege. Concluding that they were, the district court next considered whether the disclaimer at the bottom of the questionnaire acted as a waiver of the protections

afforded under the attorney-client privilege. This second step

is where the district court clearly erred. 

In considering the first step, the district court said that

“[t]he four individuals who filled out the questionnaires, in

turn, did so only because they were seeking legal representation with regard to the same matter. Indeed, by filling out the

questionnaire, these four plaintiffs did, in fact, secure legal

representation.” Under Federal Rule of Civil Procedure 52(a),

findings of fact “are unnecessary on decisions of motions.”

Thus, no findings of fact were necessary to decide GlaxoSmithKline’s motion to compel discovery. It is not clear

10See Bates v. State Bar of Ariz., 433 U.S. 350 (1977). 

11Spencer, 393 F.3d at 869 (citing Bauman, 557 F.2d at 654-55). 

12Cal. Evid. Code § 952. 

6746 BARTON v. UNITED STATES DISTRICT COURT
whether the district court intended the quoted sentence to be

a finding of fact. If it did, then we would review it for clear

error under Valley Engineers Inc. v. Electric Engineering Co.13

If it did not, we would come to the same conclusion ourselves. 

That is not to say that the question whether the respondents

were trying to secure legal services is without doubt. Arguing

that they were 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,”

14 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. In all likelihood, a very

high proportion of questionnaire submitters completed the

questionnaire “with a view to retention of” the law firm,15 and

thus submitted them “in the course of” an attorney-client relationship.16

13Valley Eng’rs Inc. v. Electric Eng’g Co., 158 F.3d 1051, 1052 (9th

Cir. 1998). 

14(Emphasis added). 

15See Beery v. State Bar of Cal., 739 P.2d 1289, 1293 (Cal. 1987). 

16Cal. Evid. Code § 952. 

BARTON v. UNITED STATES DISTRICT COURT 6747
Given this determination, a statement on the questionnaire

that it is intended to be “confidential” is not required to protect the questionnaire from disclosure. Under California law,

once it is determined that a communication was made in “the

course of the lawyer-client” relationship, “the communication

is presumed to have been made in confidence and the opponent of the claim of privilege has the burden of proof to establish that the communication was not confidential.”

17

[4] The opponent of the privilege in this case is GlaxoSmithKline, and it thus has the burden of showing that the

answers to the questionnaires were not intended to be confidential. The district court found that GlaxoSmithKline had

met this burden because of the disclaimer at the bottom of the

questionnaire which disclaimed any formation of an attorneyclient relationship. The district court clearly erred in treating

the disclaimer of an attorney-client relationship as a disclaimer of confidentiality. 

[5] First, the district court based its conclusion on a misunderstanding that the law firm had made “a disclaimer of confidentiality.” It did not. Neither the word “confidentiality” nor

the substance of a disclaimer of confidentiality can be found

in the online questionnaire. The text in the checked box to

which the court referred is potentially confusing to clients (as

their ambiguous responses suggest) and the law firm should

have spoken clearly to the laymen to whom its website was

addressed about what commitments it did and did not make.

A risky and expensive trip to this court could have been

avoided by a plain English explanation on the website. But

the vagueness and ambiguity of the law firm’s prose does not

amount to a waiver of confidentiality by the client. Our focus

is on the clients’ right, not the lawyers.’ And the words just

do not say what the district court thought they said, that “confidentiality” was waived. 

17Cal. Evid. Code § 917. 

6748 BARTON v. UNITED STATES DISTRICT COURT
[6] Second, the law in California requires that the attorneyclient privilege apply, even though the plaintiffs filled out the

questionnaires before the law firm represented them and with

no assurance that it would. Under California law, a client’s

communication to a lawyer is confidential if made “in the

course of that relationship,”

18 which by itself might seem to

imply that communications prior to establishment of the relationship would not be privileged. But the phrase does not

mean that the lawyer has to take the person on as a client

before the privilege applies, because the word “client” is

defined to mean a person who consults a lawyer for the purposes of “retaining the lawyer,” “securing legal service,” or

securing “advice.”

19 All three can precede the lawyer’s acceptance of the client. 

[7] The check box on the law firm’s website protected the

law firm by requiring the questionnaire submitter to disclaim

a purpose of “request[ing] legal advice,” and to acknowledge

that the submitter is not “forming an attorney client relationship” by sending in the answers. But the box does not disclaim the purpose of “securing legal service.” The

questionnaire is designed so that a person filling it out and

submitting it is likely to think that he is requesting that the

law firm include him in the class action mentioned at the

beginning of the form. 

[8] Prospective clients’ communications with a view to

obtaining legal services are plainly covered by the attorneyclient privilege under California law, regardless of whether

they have retained the lawyer, and regardless of whether they

ever retain the lawyer. Under Beery, “[t]he fiduciary relationship existing between lawyer and client extends to preliminary consultation by a prospective client with a view to

retention of the lawyer, although actual employment does not

18Cal. Evid. Code § 952. 

19Id. § 951. 

BARTON v. UNITED STATES DISTRICT COURT 6749
result.”

20 Applying that principle, the California Supreme

Court held in Beery that a lawyer was subject to discipline

when a person, not then a client, came in to ask the lawyer

about writing a will for him (but did not hire him to do it), and

the lawyer talked the person into an investment that his fiduciary duty would prohibit him from selling to a client.21

[9] There is nothing anomalous about applying the privilege to such preliminary consultations. Without it, people

could not safely bring their problems to lawyers unless the

lawyers had already been retained. “The rationale for this rule

is compelling,” because “no person could ever safely consult

an attorney for the first time with a view to his employment

if the privilege depended on the chance of whether the attorney after hearing his statement of the facts decided to accept

the employment or decline it.”

22 The privilege does not apply

where the lawyer has specifically stated that he would not represent the individual and in no way wanted to be involved in

the dispute,23 but the law firm did not do that in this case —

it just made it clear that it did not represent the submitter yet.

Under People v. SpeeDee Oil Change Systems, Inc.,

24 when

the communication between a lawyer and possible client proceeds “beyond initial or peripheral contacts” to acquisition by

the lawyer of information that would be confidential were

there to be representation, the privilege applies.25

In deciding that the district court plainly erred, and that a

writ of mandamus must be granted, our judgment is not based

on a mechanical application of verbal formulas. We are influenced by how fundamental the lawyer-client privilege is to

20Beery, 739 P.2d at 1293 (quotations and citation omitted). 

21Id. at 1289. 

22People v. Gionis, 892 P.2d 1199, 1205 (Cal. 1995) (quotations and

citation omitted). 

23Id. at 1206. 

24People v. SpeeDee Oil Change Sys., Inc., 980 P.2d 371 (Cal. 1999).

25Id. at 380. 

6750 BARTON v. UNITED STATES DISTRICT COURT
the operation of an adversarial legal system. Potential clients

must be able to tell their lawyers their private business without fear of disclosure, in order for their lawyers to obtain honest accounts on which they may base sound advice and

skillful advocacy. There would be no room for confusion had

the communication been in the traditional context of a potential client going into a lawyer’s office and talking to the lawyer. The changes in law26 and technology27 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. 

GlaxoSmithKline cannot be permitted access to a communication that a plaintiff made confidentially to his lawyer in

order to compare it to what the same individual said at a deposition. But that is exactly what GlaxoSmithKline seeks. It

must be conceded that if a plaintiff says one thing to his lawyer, and says another at his deposition, keeping the first disclosure secret creates a risk to the honest and accurate

resolution of the dispute. That risk is mitigated by the plaintiffs’ lawyers ethical duties of candor toward the tribunal and

fairness to the opposing party and counsel.28 The privilege

does not mean that the plaintiffs may lie about their symptoms, or that their lawyers may allow them to lie. A lawyer

can be disbarred for offering evidence that the lawyer knows

to be false, failing to disclose a material fact when disclosure

is necessary to prevent a fraud by the client, or assisting a witness to testify falsely.29 Most lawyers’ sense of honor would

prevent them from doing these things even if they were not

at risk of losing their licenses if they did. These restraints of

honor and ethics, rather than court-ordered disclosure of con26See Bates v. State Bar of Ariz., 433 U.S. 350 (1977) (allowing attorney

advertising). 

27See Cal. Evid. Code § 952. 

28See ABA Model Rules of Prof’l Conduct 3.3, 3.4; State Bar of California Rule of Prof’l Conduct 5-200. 

29See supra note 28. 

BARTON v. UNITED STATES DISTRICT COURT 6751
fidential communications, are the means that our system uses

to deal with the risk of clients saying one thing to their lawyers and another to opposing counsel, the judge, or the jury.

ORDER

[10] We grant a writ of mandamus, and vacate the district

court’s order compelling disclosure of the four plaintiffs’

questionnaires posted by their law firm on the internet. 

6752 BARTON v. UNITED STATES DISTRICT COURT