Not Quite a Client: New Ethics Rule Provides Guidance on a Lawyer's Duty to Prospective Clients

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American Bar Association




THE CONSENSUS IN U.S. JURISDICTIONS IS THAT the creation of a lawyer-client relationship entitles the client to the full panoply of protections under professional conduct rules. Chief among these are the lawyer's obligations to represent the client competently, to protect the confidentiality of all information relating to the representation and to avoid impermissible conflicts of interest. The ethics rules are not so clear, however, in the case of a person who contacts a lawyer to discuss the possibility of hiring the lawyer but never actually forms the client lawyer relationship.

A new rule that addresses duties to a prospective client was adopted in 2002 as part of a package of revisions to the ABA Model Rules of Professional Conduct developed by the Ethics 2000 Commission. But even under the new rule, a lawyer's duties depend on whether that person is a prospective client or just a prospective client "wannabe." Until the ABA's House of Delegates adopted Rule 1.18 (Duties to Prospective Client), the ABA Model Rules contained no reference to prospective clients.

Nevertheless, it was well-understood that a lawyer's duty of confidentiality typically extended to prospective clients. It was less clear how conflict-of-interest rules applied to would-be clients. Moreover, with the increasing use of e-mails and fax machines, it was unclear whether unsolicited communications to a lawyer might force the lawyer to assume duties adverse to an existing client. In the absence of ethics rules specific to would-be cli ents, the courts often reached different conclusions on whether a client-lawyer relationship existed on the basis of very similar fact patterns.

Rule 1.18 confirms that, even when no client-lawyer relationship is formed, "A lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation except as Rule 1.9 [Duties to Former Clients] would permit with respect to information of a former client." (Rule 1.9 prohibits a lawyer from using information relating to the representation of a for mer client to that party's disadvantage until the information has become generally known

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