Opinions

Ethics Opinion 346

The Required Elements for Triggering a Duty of Confidentiality to a Prospective Client


When a lawyer with whom a prospective client has consulted receives permission from the prospective client to speak with other counsel who the lawyer believes may be better suited to handle the case, any client information conveyed by the first lawyer during such a discussion with the second lawyer should be treated by the second lawyer as confidential even though he never speaks directly with the prospective client.

Applicable Rules:

  • Rule 1.6 (Confidentiality of Information)
  • Rule 1.18 (Duties to Prospective Client)

Inquiry
A would-be client comes to Lawyer A to speak with her about taking on his case. After listening to the prospective client’s story, Lawyer A determines that she is not in a position to be of assistance. However, Lawyer A believes that a different lawyer would be better suited to meet the prospective client’s needs. Lawyer A asks the prospective client whether he would like her to call Lawyer B on his behalf to discuss the possibility of Lawyer B taking on the representation, and the prospective client says “yes.” Lawyer A calls Lawyer B, who works at a different firm, and explains the person’s predicament. After hearing the story from Lawyer A, Lawyer B determines that he has a conflict of interest and cannot represent the person. The question is whether Lawyer B has a duty to safeguard the information that Lawyer A communicated to him.

D.C. Rule 1.18, which became effective in February 2007, defines a lawyer’s obligations to a person with whom a lawyer discusses the possibility of representation, but who does not become the lawyer’s client. The rule recognizes a new category of persons, “prospective clients,” and states that “[e]ven 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.” (Emphasis added). The uncertainty in this inquiry arises because Lawyer B never had direct “discussions with a prospective client.” His only discussions were with Lawyer A.

Discussion
We analyze this inquiry under two alternate theories: (1) That the duty of confidentiality to would-be clients exists in Rule 1.6 and therefore is not dependent on the definition of a “prospective client” in Rule 1.18; and (2) the requirement of a discussion in Rule 1.18 is met because Lawyer A is an agent of the prospective client. We believe that under both theories, Lawyer B owes a duty of confidentiality.[1]

1. Confidentiality to Would-Be Clients Under Rule 1.6
ABA Model Rule 1.18 was adopted in 2002 as part of the ABA Ethics 2000 project. D.C. Rule 1.18(a), which is identical to Model Rule 1.18(a), provides: “A person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.” The confidentiality component of the rule (as distinct from its provision relating to conflicts of interest) was intended to codify the existing obligation of a lawyer under Model Rule 1.6 to a person with whom the lawyer had a preliminary consultation of some sort, but who never entered into an attorney-client relationship.[2] Indeed, ABA Ethics Opinion No. 90-358, written 12 years before the adoption of Rule 1.18, states:

Information imparted from a would-be client seeking legal representation is protected from revelation or use under Model Rule 1.6 even though the lawyer does not undertake representation of or perform work for the would-be client.

Similarly, Comment [9] to D.C. Rule 1.6 recognizes this obligation under D.C. Rule 1.6. The Comment states:

Principles of substantive law external to these Rules determine whether a client-lawyer relationship exists. 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. Other duties of a lawyer to a prospective client are set forth in Rule 1.18. (Emphasis added.)

See also Restatement (Third) of the Law Governing Lawyers §15.

Because the duty of confidentiality owed to persons who do not become clients exists in Rule 1.6 and in Rule 1.18, we need not rely solely on the language of Rule 1.18, which requires a discussion between a person and a lawyer. Comment [9] to D.C. Rule 1.6 clarifies that the duty of confidentiality is triggered “when [a] lawyer agrees to consider whether a client-lawyer relationship shall be established.”[3]

The Committee concludes therefore, that a duty of confidentiality is owed by the second lawyer under Rule 1.6, notwithstanding the language of Rule 1.18, because the second lawyer presumably agreed to consider the possibility of a client-lawyer relationship when he spoke with the first lawyer.

2. Communications From Agents of Clients
Alternatively, we assume for purposes of further analysis that the requirement of a discussion with the would-be client, as stated in Rule 1.18(a), must be met in order for the duty of confidentiality to attach. Under that assumption, the requirement would be met if the first lawyer was considered to be the agent of the would-be client in speaking with the second lawyer.

In assessing the confidentiality of communications with clients in connection with the attorney-client privilege, courts have often recognized that clients sometimes speak to their lawyer through agents.[4] This can include interpreters, family members and business agents, provided that under the circumstances, the agent is someone who the client trusts to maintain the confidentiality of the communications. This concept is recognized in the Restatement (Third) of The Law Governing Lawyers §70(f). Under that section, the Restatement addresses the circumstances under which a person can speak to a lawyer as a client’s agent and have the communication fall within the attorney-client privilege. That section states:

A client’s agent for communication. A person is a confidential agent for communication if the person’s participation is reasonably necessary to facilitate the client’s communication with a lawyer or another privileged person and if the client reasonably believes that the person will hold the communication in confidence. Factors that may be relevant in determining whether a third person is an agent for communication include the customary relationship between the client and the asserted agent, the nature of the communication, and the client’s need for the third person’s presence to communicate effectively with the lawyer or to understand and act upon the lawyer’s advice.

The Restatement provides three illustrations: (1) A client is arrested and barred from speaking to his counsel and so asks his friend to convey a message to his lawyer; (2) a client does not speak English and uses an interpreter to speak to the lawyer; and (3) a client uses his personal secretary to provide information to his lawyer.

In In Re Lindsay, 158 F.3d 1263, cert. denied, 525 U.S. 996 (1998), the D.C. Circuit addressed whether Deputy White House Counsel Bruce Lindsay acted as President Clinton’s agent in speaking with the President’s private counsel regarding the president’s personal legal issues. The court did not decide whether the use of an agent as intermediary need be “reasonably necessary” in order to retain the privilege because it found that by adding his own legal analysis Mr. Lindsay could not be deemed a mere intermediary. In rejecting the privilege under these circumstances, the court reasoned that “the attorney-client privilege must be ‘strictly confined within the narrowest possible limits consistent with the logic of its principle.’” Id. at 1281 (quoting In Re Sealed Case, 676 F.2d 793, 807 n.44 (D.C. Cir. 1982)) (quoting In Re Grand Jury Investigation, 599 F.2d 1224, 1235 (3d Cir. 1979)).

We believe that the intermediary principle applies to a lawyer’s ethical obligation of confidentiality under Rule 1.6 and Rule 1.18 as well, but without the same need to so strictly limit its applicability. The reason for the distinction is that in the context of attorney-client privilege, as with any evidentiary privilege, there is the important countervailing demand from a party in a legal proceeding for evidence which may be relevant. Unless applying an exception under Rule 1.6 (c), (d) or (e), a lawyer’s duty of confidentiality, on the other hand, should be broadly interpreted in order to ensure that client expectations are met. See Geoffrey C. Hazard, Jr. and W. William Hodes, The Law of Lawyering §9.7 (3d ed.) stating:

Because the ethical obligation of confidentiality is broader [than the attorney-client privilege], lawyers ordinarily should operate on the presumption that essentially no unfavorable client information may be disclosed without the client’s consent.

Because the first lawyer was an agent of the prospective client, the second lawyer must treat the discussion with the first lawyer as confidential under Rule 1.18.

Conclusion
When a prospective client consents to having a lawyer speak to a second lawyer on his behalf regarding the possibility of establishing an attorney-client relationship, the second lawyer has an obligation under Rules 1.6 and 1.18 to treat the communication as confidential, even if the second lawyer never speaks directly with the prospective client.

Given the importance of maintaining confidentiality of any information received by the first lawyer, it is advisable that the first lawyer disclose at the outset of the conversation with the second lawyer that the purpose of the discussion is to consider taking on a new case for someone, and to limit initial disclosures to the essential facts until it can be determined whether the second lawyer has a conflict of interest.

Published: February 2009

  1. [Return to text] Under either theory, the substance of the duty of confidentiality is governed by Rule 1.6.
  2. [Return to text] What is substantively new in Model Rule 1.18 is that a lawyer’s duties to prospective clients with respect to conflicts of interest are defined. Before the new rule, courts were left to determine whether one or more consultations created an attorney-client relationship or no relationship at all. See Derrickson v. Derrickson, 541 A.2d 149 (D.C. 1988), in which the court, in ruling on a motion to disqualify a party’s counsel, had to determine whether a single consultation of about one hour, taking place eight years earlier and which the lawyer contended he had no recollection of, created a lawyer-client relationship. The court found no attorney-client relationship and therefore no conflict of interest.
  3. [Return to text] Whether that formulation also triggers the conflict of interest features of Rule 1.18(c) is a separate question not addressed in this Opinion.
  4. [Return to text] The more common situation of non-lawyers who are assisting the lawyer serving as the lawyer’s agent in receiving confidential communications from a client is also a related but separate issue, not addressed in this Opinion.

February 2009