Ethically Speaking
| Publication year | 2010 |
| Pages | 34 |
| Citation | Vol. 33 No. 4 Pg. 34 |
Vol. 33, No. 4, 34. Ethically Speaking
Issue: August, 2010
Carl M. Williams Professor of Law and Ethics
University of Wyoming College of Law
Duties to Prospective Clients
Traditionally, lawyers owed duties to clients, and not to others. The existence of a lawyer-client relationship, in fact, was a prerequisite to bringing a legal malpractice action.(fn1) That is no longer the case.(fn2) Further, as the law evolved to allow legal malpractice suits to be brought by non-clients, ethical duties evolved as well. Among other things, it became evident that persons seeking legal assistance, now generally referred to as "prospective clients," deserved some protection, especially protection from lawyers who are not retained.(fn3)
The existence of some duties to prospective clients is now well established. Accordingly, "[m]ost 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. But there are some duties . . . that attach when the lawyer agrees to consider whether a client-lawyer relationship shall be established."(fn4) Which duties attach before the formation of the lawyer-client relationship, and the scope of those duties, is the topic of this column.
During the course of a lawyer-client relationship, a client will be called upon to make numerous decisions (most importantly, the client is to determine the objectives of the representation, and the lawyer "shall abide" by those objectives(fn5)). The client's decisions may be "good" or "bad." Which category they fall into is not the lawyer's concern. Rather, the lawyer's concern is that the client's decisions be "informed decisions."(fn6) The term "informed decision" is defined as "the decision by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct."(fn7)
Before a client can make any decisions regarding the representation, however, one very important decision must be made. That is, should a prospective client retain a particular lawyer? As with any other important decisions regarding the representation, that one, whether to retain a particular lawyer, should be an informed one. How to make it so, and a lawyer's duty of explanation to a prospective client, are discussed below.
In addition to ensuring that the decision of whether to retain a lawyer is an informed one, other concerns arise regarding prospective clients. Perhaps the main one is about information. The reason for the concern is that before a prospective client can decide whether to retain a lawyer, and before a lawyer can determine whether to represent a prospective client, each needs to know about the other, and the nature of the proposed representation. Often, this means that the prospective client must disclose information that is potentially incriminating or inculpatory. There is a need, therefore, to protect the confidentiality of such information.
The concern to protect the client's confidentiality, in turn, gives rise to two more issues. First, that the information communicated by the prospective client not be revealed. Second, that the information not be used later against the prospective client.
While the Scope section of the Rules suggest that there are several duties "that attach when the lawyer agrees to consider whether a client-lawyer relationship shall be established,"(fn8) the only duty expressly mentioned as attaching at the time a person becomes a "prospective client,"(fn9) is the duty of confidentiality.(fn10) It is clear, however, that other duties attach because a prospective client "should receive some, but not all of the protections afforded clients."(fn11) The question thus becomes what other duties attach to prospective clients?
Rule 1.18, which governs "Duties to prospective clients," includes the duties of confidentiality,(fn12) and loyalty (evidenced by the prohibition on certain kinds of conflicts of interest).(fn13) In addition, while it is not expressly mentioned, Rule 1.4(b), the part of the rule on "Communication" that requires lawyers "to explain" matters to clients, has also been applied to aspects(fn14) of the formation of the lawyer-client relationship, and it should be applied to the entire process. One reason the duty of explanation should apply is that decisions by clients are supposed to be "informed."(fn15) Few decisions, if any, that a client makes during the representation are more important than the decision of which lawyer to retain. That decision, therefore, should be an informed one. The only way it can be informed is if the lawyer "explain[s] a matter [whether to retain the lawyer] to the extent reasonably necessary to permit the client to make informed decisions regarding the representation . . .
The Duty to Explain Matters
Lawyers are already required to inform new clients about important aspects of the representation. First, a new client must be told about "[t]he scope of the representation."(fn17 )What, that is, the lawyer has agreed to do for the client. That discussion should include any limitations on the representation.(fn18) Second, the new client must be told "the basis or rate of the fee."(fn19) Finally, the lawyer must inform the new client about the "expenses for which the client will be responsible."(fn20 )All that information is to be communicated to the client "preferably in writing, before or within a reasonable time after commencing the representation . . ."(fn21) As the foregoing information is fundamental to the prospective client making an informed decision about whether to retain a lawyer, it is difficult to imagine circumstances when the communication should not occur before the representation begins. And, except with clients who have developed a clear understanding of the foregoing, based on previous lawyer-client relationships, it is also difficult to imagine times when the communication will not be in writing. The statement in the Rule that the communication "preferably [be] in writing," should, therefore, be disregarded when dealing with new clients. The communication should be in writing.
The Duty of Confidentiality
As noted earlier, the duty of confidentiality is the only duty expressly mentioned in the Scope section of the Rules as attaching at the time a lawyer is considering whether to represent a prospective client.(fn22) Perhaps that is because of the importance of the duty of confidentiality, one of the two precepts of the fiduciary relationship (the other is the duty of loyalty) between a lawyer and his or her clients-duties that pre-date lawyers' codes of ethics.(fn23)
For many years, the American Bar Association's ("ABA") Model Rules did not expressly include information about prospective clients in a lawyer's general duty of confidentiality. In 1990, however, the ABA's Standing Committee on Ethics and Professional Responsibility issued a Formal Opinion which concluded that information about...
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