A lawyer’s momentary willingness to hear out a telephone caller’s interest in retaining the lawyer may be found sufficient to instill the caller with the status of a “prospective client.”
The casual nature of such inquiries can leave lawyers and their firms vulnerable to being blind-sided by subsequent claims of conflicts of interest that fall outside the firm’s usual mechanisms for screening. Although Rule 1.18 (adopted by the ABA in 2002) provides only limited ability for prospective clients to assert conflicts of interests, such claims can be sufficiently troublesome to warrant protective measures.
Should I Listen to the Whole Voicemail Message?
Unilateral inquiries regarding a possible representation do not impose any duties on a lawyer. A person does not become a prospective client unless an attorney reasonably demonstrates a willingness to consider “the possibility of forming an attorney client relationship with respect to a matter.”
So, for example, if a lawyer is in a firm that defends hospitals and doctors in medical malpractice cases the lawyer should be wary of messages from callers seeking representation in bringing such claims. If the lawyer receives a voicemail of this nature, they should stop listening to the message, delete it and need not return the call. Under these circumstances, the caller cannot credibly assert a conflict of interest if that lawyer’s firm ends up defending the caller’s suit.
Similarly, if a lawyer speaks to such a caller, the lawyer should be alert to the need to promptly and forthrightly advise the caller that the representation is outside their area of interest and caution the caller to provide no more information about the matter. Here too, a lawyer prevents the caller from claiming the status of a prospective client.
Be Ready to Limit the Information Provided
When a lawyer does engage in substantive discussions with a prospective client regarding the possibility of a representation the lawyer should limit the information initially provided to that necessary to determine whether the representation would present a conflict or would otherwise be undesirable.
If no attorney-client relationship ensues there will be two potential benefits from having limited the scope of information conveyed: (1) the lawyer may have avoided receipt of “significantly harmful information” that is a predicate for a conflict of interest under Rule 1.18(c); and (2) it will allow the use of an ethics screen to avoid imputation to the entire law firm under Rule 1.18(d), should that become necessary.
Other Preventive Measures
One measure used by some firms is to require lawyers to conduct a preliminary review of potential conflicts before initiating a substantive conversation with a prospective client. This could be done by checking the firm’s data base of current and former clients to rule out the likelihood that the new matter will create a conflict of interest.
Another measure firms may consider is having the names of former prospective clients entered into the firm’s data base so they will be accessed in the firm’s routine screening of conflicts.
Finally, lawyers in a firm should be reminded of the hazards that these seemingly innocuous conversations can present.
Defending Claims by Prospective Clients
If a firm ultimately is faced with a claim from a former prospective client of a conflict of interest with respect to a subsequent matter, Rule 1.8 provides several lines of defense.
First, the prospective client must show, among other things, that “the lawyer received information from the prospective client that could be significantly harmful to that person in the matter.” This express requirement, which does not apply to former clients under Model Rule of Professional Conduct 1.9, is separate from, and addition to, the substantial relationship test.
Second, like the case with former clients, matters adverse to a prospective client do not constitute a conflict of interest unless it is “in the same or a substantially related matter” to that discussed with the prospective client. This test, which does not apply to conflicts relating to current clients, significantly limits the number of conflicts of interest resulting from encounters with prospective clients.
Finally, and unlike the case with former clients, Rule 1.18(d) provides procedures whereby a law firm can avoid imputation by implementation of a timely ethics screen around the lawyer or lawyers who had the discussions with the prospective client.
With these lines of defense available, motions to disqualify filed by prospective clients are rare.
The Duty of Confidentiality and Attorney-Client Privilege
Notwithstanding the limits on the protections for prospective clients with respect to conflicts of interest, lawyers should remain mindful that their duty of confidentiality and the protection of the attorney-client privilege are the same as those for their former clients. The application of the attorney-client privilege is an inherent feature of the status of prospective clients.
In fact, clarification of the application of the attorney-client privilege to communications from prospective clients was one of the express reasons for the ABA’s promulgation of Rule 1.18 as proposed by the ABA Ethics 2000 Commission. Similarly, a lawyer’s wrongful use of confidential information from a prospective client is prohibited, as is a lawyer’s revealing of such information.
The promulgation of Rule 1.18 and its creation of the status of “prospective client” is designed to facilitate the ability of consumers of legal services to “shop around” for a good bargain in finding a lawyer by preserving their confidential communications and by limiting the consequences to lawyers and law firms who entertain such discussions. Yet the informality of such discussions can cause lawyers to let their guards down and allow unwanted consequences to occur.
This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
Arthur D. Burger is chair of the Professional Responsibility Practice Group of Jackson & Campbell P.C. in Washington, D.C. He represents law firms and lawyers in matters related to legal ethics, legal malpractice, and the law relating to lawyers.