We all get those calls — the ones where the person on the other end of the phone immediately launches into a long description of the perceived legal problem without even taking a breath. Many times, there is some type of conspiracy involved. In my practice, the conspiracy usually involves the government (of course).
There are several ethical issues to keep in mind when taking these calls. New York Rule of Professional Conduct 1.18 (Rule) describes duties to prospective clients stating that “a person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a ‘prospective client.’” This Rule goes on to say that, even when no client-lawyer relationship is formed, a lawyer cannot use or reveal information learned in the initial consultation. More significantly, a lawyer cannot represent a client “with interests materially adverse” to those of a “prospective client.” This prohibition makes the nuances associated with the phrase “prospective client” very important.
Section (e) of the Rule expands on the definition of “prospective client,” stating that a person that communicates information unilaterally to a lawyer, “without a reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship,” is not a “prospective client.” Nor is a person who communicates with a lawyer for the purpose of disqualifying the lawyer from handling a matter a “prospective client” within the meaning of the Rule.
Last June, the New York State Bar Association issued Opinion 1126, which highlights some of the implications of identifying a “prospective client.” In the inquiry presented, the inquiring lawyer represented Husband and Wife in forming a joint revocable trust. Wife predeceased Husband, and after Husband died, Sister became successor trustee. Sister contacted the lawyer after Husband’s death and disclosed that Husband put the trust assets in an account to benefit Sister, rather than funding the trust to benefit Wife’s children from a prior marriage, as contemplated by the joint revocable trust (effectively disinheriting Wife’s children). The lawyer inquired as to whether he may or must disclose that information to Wife’s children. The committee opined that Sister was a “prospective client” under Rule 1.18(a), and therefore, that the lawyer could not reveal Sister’s confidential information without obtaining informed consent.
In Opinion 1126, the committee stressed that whether Sister was a “prospective client” was a question of fact answered only by those circumstances. Indeed, the comments to the Rule make it clear that not everyone who communicates information to a lawyer is a “prospective client,” and that “[w]hether communications, including written, oral, or electronic communications, constitute a consultation depends on the circumstances.” Very helpful. The comments state that a consultation occurs when a person provides information in response to a lawyer’s advertising that requests or invites the submission of information without clear warnings or cautionary statements that limit a lawyer’s obligations. This is contrasted with the situation in which a person submits information in response to lawyer advertising that simply describes a lawyer’s education, experience, areas of practice and contact information. Responses to the latter type of advertising are not considered consultations that implicate the “prospective client” obligations.
A lawyer needs some basic information in order to assess whether she is willing or able to form a client-lawyer relationship, including information about adverse parties, and the basic nature of the proposed representation. But the receipt of some types of information can prevent a lawyer and her firm from undertaking representation of another client with materially adverse interests. This is referred to in the Rule as “disqualifying information.”
Practically speaking, lawyers should examine their advertising to ensure that there are clear statements limiting their obligations associated with the receipt of unsolicited confidential information. On some lawyers’ websites, a person can click a button to submit information. It is important that these clicks come with a warning that the submission of information does not result in the formation of an attorney-client relationship.
But what about the phone calls? Screening is always a good idea for a lot of reasons. During the initial call, control the conversation. People calling lawyers are often upset, so set clear expectations at the beginning of the call or meeting. Emphasize that the first thing you need to do is run a conflict check so you can only accept limited information. Have them provide a list of all the potentially adverse parties first, because you may be able to quickly determine that you cannot accept the engagement. This will help you avoid receiving any information that may later be considered confidential.
Get a brief explanation of the subject matter. For example, if the first piece of information I receive on a call is “I need a divorce,” it does not really matter who is on the other side. That’s not my practice area. Make sure all the lawyers in your firm are trained to handle phone calls the same way, perhaps using a standard form to be filled out in initial discussions.
About a month ago, I received a call from a former colleague. He wanted to refer a matter. Instead of launching into the whole narrative, he did exactly what was necessary to protect us both. He told me the basic nature of the matter, the location and the opposing parties. After asking about the principals of the company, I politely declined and gave him the name of another attorney.
It is easy to get sucked into conversations with people who are upset, but thinking about your response and your obligations in advance — and controlling the conversation — can avoid the unintentional formation of “prospective client” relationships.
And remember, the truth is out there.
If you have a situation that implicates the professional rules, you can submit a confidential inquiry to the Ethics Committee at firstname.lastname@example.org or (585) 546-1817. After receiving the inquiry, the Ethics Committee members examine the situation presented, consult the rules of professional conduct, and issue oral opinions and advice. The Ethics Committee welcomes inquiries from all attorneys.
Amy K. Kendall is a senior associate with Knauf Shaw LLP and a member of the Monroe County Bar Association’s Ethics Committee. The opinions expressed herein are those of the author and not those of the MCBA or its Ethics Committee.