Vol. 31, No. 2, #1. Ethically Speaking - An Attorney's Duties to Prospective and Former Prospective Clients Who Never Become Clients.

• Author: Author: John M. Burman

Wyoming Bar Journal

2008.

Vol. 31, No. 2, #1.

Ethically Speaking - An Attorney's Duties to Prospective and Former Prospective Clients Who Never Become Clients

Wyoming Bar Journal Issue: April, 2008 Author: John M. Burman Ethically Speaking - An Attorney's Duties to Prospective and Former Prospective Clients Who Never Become Clients

As the Scope section of the new Wyoming Rules of Professional Conduct ("the Rules") notes: "Most of the duties flowing from the client-lawyer relationship attach only after the client has requested the lawyer to render legal services and the lawyer has agreed to do so." Some duties, however, arise earlier. The duty of confidentiality, for example, "attach[es] when the lawyer agrees to consider whether a client-lawyer relationship shall be established. See Rule 1.18." In addition to the duty of confidentiality, Rule 1.18 also imposes on lawyers a requirement to avoid certain types of conflicts of interest with former prospective clients. Finally, the duty to communicate with a prospective client "to the extent reasonably necessary to permit the client to make informed decisions regarding the representation" applies to the decision of whether a prospective client wishes to retain a lawyer.

Rule 1.18 is new to both the ABA Model Rules and the Wyoming Rules. It clarifies the duties of confidentiality and avoiding certain conflicts of interest as those duties apply to former prospective clients. The Rules themselves do not say that the duty of communication applies to prospective clients, but the ABA has opined that it applies in similar circumstances, and it should apply, in general, to the decision of whether to form an attorney-client relationship. All the foregoing duties fall under the heading of an attorney's duties to prospective clients, and are the subject of this issue's column.

The Ethical Framework

Rule 1.18 is entitled "Duty to prospective clients." It was adopted in Wyoming effective July 1, 2006. The Rule codifies the duties of confidentiality lawyers owe to prospective clients articulated by the ABA in a Formal Opinion issued in 1990. It also sets forth conflict of interest standards regarding former prospective clients.

The Ethical Duty of Confidentiality Arises When an Attorney Considers Representing a Prospective Client

"[T]here are some duties, such as that of confidentiality under Rule 1.6, that attach when the lawyer agrees to consider whether a client-lawyer relationship shall be established." Until recently, no rule directly addressed a lawyer's ethical duty of confidentiality regarding prospective clients, although the ABA's Standing Committee on Ethics and Professional Responsibility had found such a duty in some circumstances. Now, Rule 1.18 makes express the duties of confidentiality and avoiding certain conflicts of interest.

As its title suggests, Rule 1.18 addresses a lawyer's duties to "prospective clients." A "prospective client" is defined as "[a] person who discusses with a lawyer the possibility of forming a client-lawyer relationship . . . ." The Rule goes on to clarify that a lawyer "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."

The reason for the proscription is that "[p]rospective clients, like clients, may disclose information to a lawyer, place documents or other property in the lawyer's custody, or rely on the lawyer's advice." As do clients, prospective clients have a reasonable expectation that the lawyer will keep their communications confidential, regardless of whether an attorney-client relationship subsequently comes into being.

Not every person who communicates information to a lawyer is a "prospective client." "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.'"

While prospective clients have a reasonable expectation of confidentiality, their communications are necessarily limited in duration and depth. Accordingly, a prospective client "should receive some but not all of the protection afforded clients." The difference in the nature of the communications between prospective clients and lawyers results in different, and more limited, protection than is afforded former clients.

Conflicts Caused by Prospective Clients or Former Prospective Clients

The limited protection lawyers owe former prospective clients, who never become clients, is clearly seen in the more liberal standard applied to conflicts of interest, not in the use of or revealing of information from prospective clients; such information is entitled to the same protection as information regarding former clients. Even with the more liberal standard, however, conflicts may result from consultations with prospective clients who never become clients. Such conflicts are easily overlooked until raised by another party (usually the former prospective client).

Rule 1.18 begins with a prohibition that is similar to that regarding former clients. A lawyer who has had discussions with a former prospective client "shall not represent a...