7.03. Ethical Obligations to Prospective Client [Rule 1.18]

The ethical obligations to a prospective client are similar to those set out in the Restatement.  However, the ethical concerns extend beyond the limited substantive duties that the Restatement addresses.  The ethical obligations are also concerned with what limitations, if any, communications with a prospective client can have on a lawyer’s practice.  In other words, if a lawyer talks to a prospective client about a case, and then turns down the representation, can the lawyer thereafter represent a client with adverse interests to the prospective client?  Practically this is a very important question because every time a lawyer accepts a case she has to get enough information from the prospective client to determine whether the lawyer wants to take the case and whether there is a conflict of interest.  How much does this limit the lawyer going forward?

Rule 1.18 is broken down into four subsections.  The first subsection defines a “prospective client”: “[a] person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter…”[1]  What does it mean to “consult” with a lawyer?  Take a look at the Comments to the Rule – you will see that it depends on the circumstances.  

Larry Lawyer purchases an advertisement in a local newspaper which says the following: “Need a divorce, email me and tell me your story. I’ll let you know the next course of action you should take.  Larry.Lawyer@divorceRus.com” Wendy Wife emails Larry and tells him that her husband (Henry) has filed for divorce and wants Larry to represent her.  She reveals in the email that she is having an affair with her tennis coach and wants to keep that information from Henry.  Lawyer comes into the office, checks his email, and reads the email from Wife.  Lawyer is already representing Henry in the divorce.  Is the email from Wendy Wife a “consultation”?

Yes.  The Comment to Rule 1.18 says a consultation occurs if a lawyer:  “either in person or through the lawyer’s advertising in any medium, specifically requests or invites the submission of information about a potential representation without clear and reasonably understandable warnings and cautionary statements that limit the lawyer’s obligations.”[2]  Here, Lawyer gave his email and invited potential clients to contact him with no limitation on the amount of information he received in the inquiry and no notice to the responder that they should only give limited information.  Note, however, if Lawyer’s ad just had his name, area of practice, and contact information it would not be a consultation in that situation, Wendy Wife is acting unilaterally and not at the invitation of the lawyer.[3]  As you can imagine, this standard is less than a model of clarity.

It is only when you identify someone as a “prospective client” that you continue with the obligations set out in the remaining subsections of Rule 1.18.  If a person is not considered a prospective client, then there will be no limitations on the ability of the lawyer to proceed against that person. 

Once a person is determined to be a prospective client, a lawyer generally must keep the information obtained from that person confidential. The lawyer can only use/reveal information learned in the consultation if the lawyer would be justified in using the information of a client or if the information becomes generally known.[4]

This is an important limitation.  All lawyers initially meet with potential clients to determine whether to take the case and whether the lawyer has a conflict that would prevent the lawyer from accepting the representation.  This means that if a lawyer just has an open ended conversation with the prospective client, the lawyer may be compromising his ability to continue representing a client who has interests adverse to the prospective client.

This limitation is confirmed in Rule 1.18(c).  If a lawyer, during the initial consultation learned information “that could be significantly harmful” to the prospective client, the lawyer is prohibited from representing a client with interests “materially adverse to the prospective client in the same or substantially related matter.”[5]  The Rule then goes on to say that if the lawyer learned “significantly harmful” information, not only is the lawyer disqualified from going adverse to the prospective client, but so is everyone in the lawyer’s law firm.  This is a really bad scenario for Larry Lawyer in the hypothetical above.  Lawyer had a consultation with Wendy and learned information that could be significantly harmful to her – her adultery.  This means that Larry – and Larry’s entire firm – will have to withdraw from representing Henry. 

What does “significantly harmful” information mean?  The ABA comments do not provide a definition.  However, a Wisconsin Ethics Opinion gives some helpful guidance.  The opinion says the following type of information would be considered “significantly harmful”:

(1) Sensitive or privileged information that the lawyer would not have received in the ordinary course of due diligence. (2) Information that has long-term significance or continuing relevance to the matter, such as motives, litigation strategies, or potential weaknesses. (3) Premature possession of information that could have a substantial impact on settlement proposals and trial strategy. (4) The would-be client’s personal thoughts and impressions about the facts of the case. (5) Information that is extensive, critical or of significant use.[6] 

In short, a lawyer’s initial communication with a prospective client should be limited to the essential facts to determine whether the lawyer wants to accept the case.  The Comments to the ABA Rule do say that a lawyer can get an agreement from the prospective client that any information learned in the consultation would not disqualify the lawyer from representing a different client in the matter.[7]  The lawyer must tell the prospective client all of the pros and cons of agreeing that the lawyer can represent another person in the same matter even after the consultation (this is required to obtain “informed consent” from the prospective client).  To be honest, I am skeptical of the effectiveness of these advance waivers in cases that do not involve sophisticated clients.

Rule 1.18 does give one glimmer of hope for Larry or his firm to continue representing Henry.  Subsection (d) states that, even if a lawyer has obtained significantly harmful information from a prospective client, disqualification is not required if:  (1)  both the affected client (here Henry) and the prospective client (Wendy) give “informed consent, confirmed in writing”; or (2) the lawyer who received the information (here, Larry) took “reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client,” and the lawyer who received the information is screened from participating in the matter, is not given any fee from the matter, and the prospective client is given notice what the firm has done to protect her confidential information.[8] 

     Applying this to the hypothetical above, Larry and his firm are in trouble.  It is very unlikely that Wendy is going to consent to allow Larry to continue representing Henry when Larry knows about the adultery and would have an obligation to reveal this information to Henry.  Second, Larry took no steps to avoid exposure to this information – he invited prospective clients to email their story to him.  In this situation Larry and his firm will have to withdraw from representing Henry, meaning that Henry is going to have to hire a new lawyer and incur additional costs in money and time.

One last point to make here.  Let’s assume that Wendy was not looking to hire Larry, but sends the information to Larry to disqualify him from representing Henry.  If that is her motivation, then the Comments say that she is not to be considered a “prospective client,” and therefore, Larry would not be prohibited from continuing to represent Henry.[9]   

[1] ABA Rule 1.18(a).

[2] ABA Rule 1.18, Comment [2].

[3] ABA Rule 1.18, Comment [2] (“Such a person 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, and is thus not a ‘prospective client’”).

[4] ABA Rule 1.18(b).

[5] ABA Rule 1.18(c).

[6] Wisconsin State Bar Comm.on Prof. Ethics, Formal Op. EF-10-03 (2010).

[7] ABA Rule 1.18, Comment [5].

[8] ABA Rule 1.18(d).

[9] ABA Rule 1.18, Comment [2] (“a person who communicates with a lawyer for the purpose of disqualifying the lawyer is not a ‘prospective client.’”).