Opinions

Ethics Opinion 374

Ethical Obligations Regarding Prospective Client Information


Introduction 
A lawyer's ethical obligations to prospective clients are set forth in Rule 1.18 of the D.C. Rules of Professional Conduct ("the D.C. Rules").[1] On its face, Rule 1.18 imposes only two obligations on a lawyer. First, regardless of whether a client-lawyer relationship ensues, Rule 1.18(b) prohibits "a lawyer who has had discussions with a prospective client" from "us[ing] or reveal[ing] information learned in the consultation, except as permitted by Rule 1.6." Because "the duty of confidentiality . . . attaches when the lawyer agrees to consider whether a client-lawyer relationship shall be established," a lawyer's obligations under Rule 1.6 also extend to information relating to a prospective client consultation—e.g., notes regarding the lawyer's mental impressions of the prospective client or matter, legal research, or other information obtained through subsequent investigation.[2] Second, Rules 1.18(c) and (d) prohibit a lawyer from "represent[ing] a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received a confidence or secret from the prospective client," unless both the affected client and the prospective client have given informed consent.[3]

Where a prospective client elects not to retain the lawyer's services, or the lawyer is either unwilling or unable to represent the prospective client, two questions remain. First, what ethical obligation, if any, does a lawyer have to preserve either the information that the lawyer learned in the prospective client consultation or other information relating to the consultation? Second, what ethical obligation, if any, does a lawyer have to turn over such information to the prospective client, either at the time that the lawyer and/or prospective client decide not to form a client-lawyer relationship or thereafter?[4]

Until such time as a final decision is made regarding whether to form a client-lawyer relationship, a lawyer has an obligation under Rules 1.18 and 1.15 to safeguard property, including intangible property, entrusted to the lawyer by the prospective client. For example, in addition to tangible property, a prospective client may entrust a lawyer with certain intellectual property during a prospective client consultation that the lawyer must safeguard while evaluating whether to represent the prospective client. Once a final decision is made not to form a client-lawyer relationship, Rules 1.18 and 1.15 require the lawyer to return such property to the prospective client or otherwise dispose of it in accordance with the prospective client's instructions. In the absence of any substantive legal or contractual obligation to do so, however, the lawyer has no obligation to preserve or turn over to a prospective client information learned in or relating to a prospective client consultation—including the lawyer's notes or other research or information that the lawyer generates or obtains—in which the prospective client has no property interest.[5], [6]

Applicable Rules 
  • Rule 1.6 (Confidentiality of Information) 
  • Rule 1.7 (Conflict of Interest: General) 
  • Rule 1.15 (Safekeeping Property) 
  • Rule 1.16 (Declining or Terminating Representation) 
  • Rule 1.18 (Duties to Prospective Client) 
  • Rule 8.4 (Misconduct) 
Discussion 
A lawyer may obtain prospective client information from an initial consultation, subsequent investigation to determine whether the lawyer is willing and able to represent the prospective client, or both. As the commentary to Rule 1.18 explains:

It is often necessary for a prospective client to reveal information to the lawyer during an initial consultation prior to the decision about formation of a client-lawyer relationship. The client may disclose such information as part of the process of determining whether the client wishes to form a client-lawyer relationship. The lawyer often must learn such information to determine whether there is a conflict of interest with an existing client and whether the matter is one that the lawyer is willing to undertake. . . . [7]

In addition, a lawyer may want to investigate the prospective client's claims or conduct preliminary legal research before forming a client-lawyer relationship. Rules 1.6 and 1.18 require a lawyer to protect the prospective client's confidences and secrets to the same extent that the lawyer must protect the confidences and secrets of a client.[8]

Under Rule 1.18(c), a lawyer or other lawyers in the lawyer's law firm may be prohibited from representing a client based on information that a prospective client has disclosed in a consultation.[9] To minimize the risk of disqualification, "a lawyer considering whether or not to undertake a new matter may limit the initial interview only to information that does not constitute a confidence or secret, if the lawyer can do so and still determine whether a conflict of interest or other reason for non-representation exists."[10] In addition, "[a] lawyer may condition conversations 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."[11] A lawyer and prospective client also may enter into an agreement in which the prospective client consents to the lawyer's subsequent disclosure and use of information learned in or related to the prospective client consultation.[12]

Where a prospective client "entrusts valuables or papers to the lawyer's care," the commentary to Rule 1.18 directs a lawyer to follow Rule 1.15.[13] Rule 1.15(a) requires a lawyer to "hold property of . . . third persons that is in the lawyer's possession in connection with a representation separate from the lawyer's own property" and to identify and safeguard such property. [14] Rule 1.15(c) generally requires the lawyer to "promptly deliver" and, upon request, "render a full accounting regarding such property" to the prospective client.[15] By its terms, however, Rule 1.15 does not require a lawyer to preserve or turn over documents or other information generated by or at the direction of the lawyer—including notes, legal research, or information obtained through subsequent investigation—unless the prospective client has a property interest in the information.[16] 

Where a prospective client elects not to retain a lawyer's services, or the lawyer is either unwilling or unable to represent the prospective client, the D.C. Rules impose no obligation on the lawyer to preserve information learned in or related to the prospective client consultation in which a prospective client has no property interest. Similarly, a lawyer has no obligation under the D.C. Rules to turn over to a prospective client, either at the time that the lawyer and/or prospective client decide not to form a client-lawyer relationship or thereafter, information learned in or related to a prospective client consultation. 

Rule 1.16(d) requires a lawyer, in connection with any termination of representation, to "take timely steps to the extent reasonably practicable to protect a client's interests, such as . . . surrendering papers and property to which the client is entitled." Where a prospective client elects not to retain a lawyer's services or the lawyer is either unwilling or unable to represent the prospective client, however, the prospective client is not a "client" and there is no representation to terminate. Accordingly, Rule 1.16(d) would not apply.

Conclusion 
As the commentary to Rule 1.18 notes, "prospective clients should receive some but not all of the protection afforded clients."[17] Thus, although a lawyer must safeguard and return documents or other property entrusted to the lawyer by a prospective client while evaluating whether to form a client-lawyer relationship, absent a substantive legal or contractual obligation to do so, a lawyer has no obligation under the D.C. Rules to preserve or turn over to a prospective client information learned in or related to a prospective client consultation, when a client-lawyer relationship is not established.[18]

[1] A "prospective client" is "[a] person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter." D.C. R. Prof'l Conduct 1.18(a). As the commentary to Rule 1.18 explains, however, "[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' . . . ." D.C. R. Prof'l Conduct 1.18 cmt. [3].  

[2] See D.C. R. Prof'l Conduct 1.6 cmt. [9] ("Although 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, the duty of confidentiality imposed by this rule attaches when the lawyer agrees to consider whether a client-lawyer relationship shall be established.").  

[3] If a lawyer is disqualified from representing a client under Rule 1.18(c), "no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter," unless "(1) both the affected client and the prospective client have given informed consent, or (2) the disqualified lawyer is timely screened from any participation in the matter." D.C. R. Prof'l Conduct 1.18(c) &(d).

[4] The questions whether and at what point a lawyer and prospective client form a client-lawyer relationship are matters of substantive law beyond the scope of this opinion. When such a relationship is formed, however, a lawyer's ethical obligations to preserve and turn over information to the client are governed by Rules 1.16(d) and 1.8(i). See D.C. Legal Ethics Op. 333 (2005).  

[5] The questions whether and to what extent a prospective client may have a property or other substantive legal interest in such information are beyond the scope of this opinion, as is the question whether any substantive legal obligation outside the Rules of Professional Conduct prohibits destruction of the information. Although this Committee does not opine on questions of law outside of the Rules of Professional Conduct, we are unaware of any authority holding that a prospective client has a property interest in a lawyer's notes or other research or information that the lawyer generates or obtains as the result of a prospective client consultation.

[6] We note that "an attorney's ethical duties to a client arise not from any contract but from the establishment of a fiduciary relationship between attorney and client." In re Ryan, 670 A.2d 375, 379 (D.C. 1996). Thus, where a lawyer and prospective client decide to form a client-lawyer relationship, the lawyer must satisfy the requirements of D.C. Rules 1.16(d) and 1.8(i), regardless of any contractual agreement. Cf. id. at 380 ("Because ethical responsibilities exist independently of contractual rights and duties, we hold that any supposed failure of a client to fulfill a retainer agreement is no defense to a disciplinary charge.").

[7] D.C. R. Prof'l Conduct 1.18 cmt. [3].

[8] See D.C. R. Prof'l Conduct 1.6 cmt. [9] ("Although 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, the duty of confidentiality imposed by this rule attaches when the lawyer agrees to consider whether a client-lawyer relationship shall be established. . . .");D.C. R. Prof'l Conduct 1.18(b) &cmt. [3] ("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 permitted by Rule 1.6. . . . Such information is generally protected by Rule 1.6, even if the client or lawyer decides not to proceed with the representation. . . . The duty to protect confidences and secrets exists regardless of how brief the initial conference may be. . . .").

[9] See D.C. R. Prof'l Conduct 1.18(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 a confidence or secret from the prospective client, 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).").

[10] See D.C. R. Prof'l Conduct 1.18 (c) & cmt. [4].

[11] Id. at cmt. [5].

[12] See id. ("[T]he prospective client may also consent to the lawyer's subsequent use of information received from the prospective client.").

[13] D.C. R. Prof'l Conduct 1.18 cmt. [9] ("For a lawyer's duties when a prospective client entrusts valuables or papers to the lawyer's care, see Rule 1.15.").

[14] See D.C. R. Prof'l Conduct 1.15(a) ("A lawyer shall hold property of clients or third persons that is in the lawyer's possession in connection with a representation separate from the lawyer's own property. Funds of clients or third persons that are in the lawyer's possession (trust funds) shall be kept in one or more trust accounts maintained in accordance with paragraph (b). Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation.").

[15] See D.C. R. Prof'l Conduct 1.15(c) ("Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property, subject to Rule 1.6.").

[16] A lawyer's failure to safeguard or return documents or other property that a prospective client entrusts to the lawyer also may implicate Rules 8.4(b) and (c). See D.C. R. Prof'l Conduct 8.4(b) &(c) ("It is professional misconduct for a lawyer to . . . [c]ommit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects;[or] [e]ngage in conduct involving dishonesty, fraud, deceit, or misrepresentation.").

[17] D.C. R. Prof'l Conduct 1.18 cmt. [1].

[18] A lawyer may choose to preserve information learned in or related to a prospective client consultation for a variety of reasons: for example, to assist the lawyer in detecting and avoiding future conflicts of interest;to defend against allegations that the lawyer violated Rule 1.6 and/or 1.18;or merely to maintain a positive relationship with prospective clients who later may need the information. If a lawyer chooses to do so, or to turn over such preserved information, however, the lawyer should be mindful of any potential conflicts of interest that may arise if the lawyer's possession or subsequent disclosure of the information could be detrimental to a current client. See D.C. R. Prof'l Conduct 1.7(b)(4) ("Except as permitted by paragraph (c) below, a lawyer shall not represent a client with respect to a matter if . . . [t]he lawyer's professional judgment on behalf of the client will be or reasonably may be adversely affected by the lawyer's responsibilities to or interests in a third party . . . ."). In addition, as stated supra at n.5, the question of whether any substantive legal obligation outside the Rules of Professional Conduct prohibits destruction of prospective client information is beyond the scope of this opinion. 

April 2018