The 2006 changes to the Rules of Professional Conduct should cause attorneys to think closely about how they communicate with prospective clients.
A new rule, RPC 1.18, defines a “prospective client” as, “A person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter.” RPC 1.18(b) states:
Even when no client-lawyer relationship ensues, 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 would permit with respect to information of a former client or except as provided in paragraph (e).
Additionally, communications with a prospective client can cause conflicts of interest under RPC 1.18(c):
A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraphs (d) or (e). If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d).
To avoid being conflicted out of representation, RPC 1.18(d) provides:
When the lawyer has received disqualifying information as defined in paragraph (c), representation is permissible if: (1) both the affected client and the prospective client have given informed consent, confirmed in writing, or: (2) the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; and (i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and (ii) written notice is promptly given to the prospective client.
Taking proactive measures to limit the scope of information communicated by a prospective client is important if an attorney wishes to avoid the potential for a conflict of interest. RPC 1.18(e) explains how this can be done:
A lawyer may condition conversations with a prospective client on the person’s informed consent that no information disclosed during the consultation will prohibit the lawyer from representing a different client in the matter. The prospective client may also expressly consent to the lawyer’s subsequent use of information received from the prospective client.
Comment 2 to RPC 1.18 states that the rule does not apply to all prospective clients:
Not all persons who communicate information to a lawyer are entitled to protection under this Rule. A person who communicates information unilaterally to a lawyer, without any reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship, is not a “prospective client” within the meaning of paragraph (a). See also Washington Comment [10].
One important factor in limiting the likelihood of a conflict of interest is whether a lawyer invites unilateral communications, which is addressed in Comment 10 to RPC 1.18:
Unilateral communications from individuals seeking legal services do not generally create a relationship covered by this Rule, unless the lawyer invites unilateral confidential communications. The public dissemination of general information concerning a lawyer’s name or firm name, practice area and types of clients served, and contact information, is not in itself, an invitation to convey unilateral confidential communications nor does it create a reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship.
Practice Pointers
Familiarize everyone in your office who has contact with prospective clients with the requirements of RPC 1.18 and the comments to the rule.
Review your communications with prospective clients, including advertising and “real time electronic contact,” e.g., chat room conversations, live webcasts and instant messaging, for compliance with RPC 7.3 and to ensure that your marketing programs are not undermining your efforts to avoid conflicts under RPC 1.18.
Do not invite unilateral confidential communications. For example, you may want to add something to your Web page or other marketing materials that informs prospective clients not to share confidential information with you unless an attorney-client relationship has been established.
Take reasonable measures to avoid exposure to more disqualifying information than is reasonably necessary to determine whether to represent the prospective client. For example, you may want to: stop potential clients from sharing any information with you until you run a conflicts check; avoid talking about potential matters with others in the office until you are sure there is no conflict; and/or tell potential clients up front that if you don’t agree to handle their matter, you or your firm may represent someone else who is involved in it, including someone whose interest may conflict with theirs, and advise them that they should not share any information with you that is confidential unless you first agree to represent them.
Have a non-attorney respond to contacts from prospective clients. That person can work from a script that explains your intake process and the need for a conflicts check prior to obtaining any confidential information.
If you accept a matter with an actual or potential conflict, immediately screen any disqualified lawyers and ensure that they receive none of the fee from the matter, and give prompt, written notice to the prospective client.
Karen Sutherland is the assistant managing member of Ogden Murphy Wallace, PLLC and a member of the Legal Marketing Association. She also is a frequent lecturer on ethics topics. She can be reached at ksutherland@omwlaw.com, but please do not send her anything confidential for reasons that should be clear to you if you actually read this article.
