By Shane A. LawsonProspective clients consulting with an attorney are often anxious to explain their problem to a professional who they hope can help provide a solution. In turn, to adequately understand the problem, the attorney may ask probing questions. As a result of either or both, sensitive information is often disclosed that the prospective client reasonably assumes will remain confidential irrespective of whether the consultation results in an actual attorney-client relationship. Ohio’s ethical rules accordingly provide prospective clients with some (but not all) of the protections afforded to current or former clients.
Being cognizant of, and adhering to, ethical duties to prospective clients can avoid conflicts of interest down the road and potential disciplinary violations.
Evaluating who is a Prospective Client
Under Ohio Prof.Cond.R. 1.18, a prospective client is “a person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter.” But not all communications are consultations giving rise to duties under the Rule. Generally, a consultation contemplates a two-way dialogue as opposed to unsolicited information unilaterally conveyed to an attorney without a reasonable basis for believing the attorney is interested in an attorney-client relationship. Prof.Cond.R. 1.18, Comment 2.
While in-person and telephone communications about potential representation will in most instances be considered consultations, what about electronic submissions through the attorney’s website? The answer can depend on the content of the site and any warnings/disclaimers utilized. If the website invites individuals to submit information about a potential representation without clear warnings that limit the lawyer’s obligations, individuals who respond to that invitation may become prospective clients. That risk can be reduced through (at a minimum) two disclaimers: (1) that the submission of information does not create an attorney-client relationship or result in the provision of legal advice; and (2) the information submitted will not be treated as confidential. See Id.; see also ABA Formal Opinion 10-457. But even those disclaimers can be undercut if the lawyer responds to the inquiry in manner that conflicts with the disclaimers. Id.
Adhering to Duties Owed to Prospective Clients
When an attorney consults with a prospective client, two duties arise even if no representation ensues.
The first is a duty of confidentiality. The lawyer cannot use or reveal information learned during the consultation except as would be permitted if the individual was a former client—i.e., only with informed consent, as otherwise permitted by Rule 1.6 (governing client confidentiality), or to the extent the information has become generally known. Prof.Cond.R. 1.18(b). Failure to adhere to this duty of confidentiality can result in significant discipline, even when the breach does not relate to a subsequent representation. See Disciplinary Counsel v. Cicero, 134 Ohio St. 3d 311 (2012) (attorney suspended for one year after disclosing to OSU football coach information learned during consultation with tattoo artist involved in OSU memorabilia raid).
The second duty owed is a limited duty of loyalty. Absent informed consent or appropriate screening procedures, neither the lawyer nor others in lawyer’s firm can represent a client with interests materially adverse to the 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 the prospective client. Prof.Cond.R. 1.18(c); see also id. at Comment 6. Potential screening measures that would allow others in the lawyer’s firm to undertake adverse representation are detailed in subsection (d) of the Rule.
Some ways to minimize unintended consultations and adhere to prospective client ethical duties include the following.
- Attorneys who solicit prospective client inquiries via a website or other electronic media should utilize proper warnings and disclaimers.
- Limit the information received from a prospective client during an initial consultation to the minimum necessary in order to limit the likelihood of receiving disqualifying “substantially harmful” information, and to potentially allow for implementation of screening procedures if later necessary.
- Utilize a rejected-client database. If you consult with a prospective client, enter the relevant information into your conflict database, identifying the individual as a “rejected client” or “one-time only contact.”
Adhering to ethical obligations regarding prospective clients is imperative – failure to do so can readily lead to disqualification or discipline, harming both the client and attorney. Lawyers should thus implement appropriate warnings, limit initial consultations, and maintain rejected client databases to avoid issues down the road.
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