Ethics Counsel on www.OKbar.org

Duties to Prospective Clients

By Gina Hendryx, OBA Ethics Counsel

When the revisions to the Oklahoma Rules of Professional Conduct (ORPC) became effective earlier this year, they included the adoption of an entirely new rule that details the ethical obligations owed to a person who consulted with a lawyer but did not subsequently engage the lawyer for representation. Rule 1.18, Duties to Prospective Client, is based upon the Model Rule of Professional Conduct that was approved by the ABA in 2002. It sets forth when a lawyer’s duties of confidentiality, loyalty and confidence attach to the “prospective client.”

In the initial interview with the prospective client, confidential information is often disclosed to the lawyer. The prospective client may discuss sensitive matters, review documents and rely upon the lawyer’s advice. However, in doing so, the lawyer may create a conflict and be disqualified from representing a different client in the same or substantially related matter because of the prior consultation. ORPC 1.18 states the following:

(a) A person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.

(b) 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.

(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 paragraph (d). 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).

(d) 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.

Not all persons who communicate information to the lawyer are protected under Rule 1.18. Comment [2] states that someone who provides information “unilaterally, without any reasonable expectation that the lawyer is willing to discuss the possibility of forming a lawyer-client relationship” is not a prospective client under the rule. Therefore, those run-ins with friends and family in the mall parking lot or at the family reunion don’t always result in a “reasonable expectation” of an attorney/client relationship.

To avoid an unwitting disqualification, the lawyer should minimize the opportunity for the prospective client to divulge potentially confidential information. The following are suggestions to assist in that meeting with a prospective client:

Keep accurate records of prospective client meetings. This should include the person’s name and the date of the meeting. Too many times the lawyer can’t even remember meeting with a prospective client. However, the prospective client “clearly” remembers the consultation and all of the “confidential” information that was shared. This can result in a disqualification simply because you have no records of the meeting.

Develop generic questions for each type of representation you undertake. Go over the same questions with each prospective client. Limit the initial interview to only the information needed to determine whether or not to take the case.

Limit your “advice” to the prospective client. For example, in a divorce matter you may advise the prospective clients on issues such as jurisdiction, venue, child support and property division in Oklahoma. Give the individual information as to your fee, general time it takes to finalize the matter and any other general information about your potential representation.

When confronted by a “former” prospective client that you have a conflict in your current representation, you will have the information necessary to respond. Yes, I did meet with X on Jan. 2, 2007, to discuss a potential divorce. I gave X information on filing a divorce in Oklahoma, how long it will take and what it will cost. X only gave me information as to citizenship, residency and ages of children. No confidential information was taken from X.

Some attorneys require the prospective client to sign a waiver of the attorney-client privilege as it applies to the initial interview. However, you should be wary of doing so. This may not protect you from a claim of conflict in all circumstances. The prospective client would have to give “informed consent” and fully understand what is being waived.

Have an ethics question? It’s a member benefit, and all inquiries are confidential. Contact Ms. Hendryx at ginah@okbar.org or (405) 416-7083; (800) 522-8065.

Originally published in the Oklahoma Bar Journal -- Aug.9, 2008 -- Vol. 79; No. 20.