ER 1.18 Duties to Prospective Clients

The Standard

People who consult with lawyers may become “prospective clients” to whom the duty to protect and not use confidential information extends, even if the person does not become a client.

The Limitation

This only applies to “prospective clients” and disqualification is not automatic. The lawyer must have received “significantly harmful” information before disqualification is required and the lawyer may be able to screen himself of herself off the matter.

FAQs

My law firm webpage uses a chatbot to invite people to provide information to see if we can assist them. Are people who chat with our chatbot “prospective clients”?

Maybe. If you do not want people using your chatbot to be prospective clients, you should: 1) Be clear they understand it’s a chatbot not a lawyer; 2) Don’t invite people to submit confidential information; and 3) Include a disclaimer. See comment 2 to ER 1.18.

Husband met with our intake paralegal. I asked Husband to send me documents and sent him our fee agreement. He sent the documents, but didn’t sign with our firm. Is he a “prospective client”?

Yes, and you should put his name and information into your conflicts database. Analyzing whether a person becomes a “prospective client” requires a case specific determination about whether the person was communicating with a lawyer for the purpose of establishing an attorney-client relationship. A person who communicates unilaterally with a firm, or who only communicates for the purpose of disqualifying the lawyer, is not a “prospective client.” But here, if time was set aside to review details of the person’s case, the lawyer invited the person to provide the lawyer with documentation, the person provided the lawyer with documentation and the lawyer sent the person a fee agreement, it’s likely the person is a “prospective client.”

The Wife of Husband from the fact pattern above now called our office to have a consultation. Can we represent her since he didn’t sign up with us?

Probably not, but it depends on whether the information learned is “significantly harmful”, whether Husband will provide informed consent to representation of Wife, or whether a screening can be accomplished. “Significantly harmful” information includes sensitive personal information, views on settlement, personal accounts of facts, or other information that is generally not obtainable in discovery. See ER 1.18(d) regarding requirement of screening.

Is there a way to consult with a person but avoid creating a “prospective client”?

Yes. Comment 5 to ER 1.18 addresses this issue and provides that lawyers should limit the initial consultation to only such information truly necessary to determine whether a conflict exists and/or whether the firm can assist on the case. Comment 6 states, “a lawyer may condition a consultation with a prospective client on the person’s informed consent that no information disclosed during the consultation will prohibit the lawyer from representing a different client in the matter.” If you’re wondering how to limit information during a consultation, call the Ethics Hotline to further discuss.

During an intake, I provided initial legal advice, then sent the person our fee agreement. She returned the signed agreement and paid us an advance deposit the next day. When did she become my client?

The client’s reasonable subjective belief is the main factor to determine whether an attorney-client relationship has formed. Providing legal advice is one way to create this belief. Payment for legal services is another. It is likely this person became a client when you provided legal advice.

I consulted with a victim about a civil claim arising from a crime. She explained the events and gave me medical records. She didn’t hire us. Later, the alleged perpetrator called seeking counsel in the criminal case. Can I take the case?

No. ER 1.18 incorporates ER 1.6 confidentiality and addresses avoiding conflicts. Subsection 1.18(c) prohibits you from representing a client with interests “materially adverse” to the prospective client in the same or substantially related matter if the lawyer received “significantly harmful” information from the prosecutive client.

This page is managed by Patricia Seguin

ER 1.18 Duties to Prospective Clients

The Standard

The Limitation

FAQs

Best Practices

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