Bar Counsel Notes: Prospective Clients

In a child support matter, the father calls a new law firm complaining that his current lawyer is not working to his satisfaction. Father is interested in hiring a new lawyer to take over his child support case. A firm support staff member talks to him, runs his name in the firm's conflict check system and discovers that a firm lawyer is now representing the mother in that same case. That lawyer instructs the assistant to call father back and tell him the firm must decline representation of him. Must that lawyer now disclose the father's call and contact with that firm to his current attorney, the opposing counsel?

No. The father's call and contact with the lawyer's firm renders him a "prospective client" under new M.R. Prof. Conduct 1.18. As a prospective client, under Rule 1.18(b) his contact and comments with the firm must be kept confidential. Furthermore, it is critical that such initial preliminary firm contacts and discussion with prospective clients be kept to the minimum to discern only the necessary conflict information. Otherwise, if substantive information is obtained from a prospective client that the firm declines to accept for representation, Rule 1.18(c) may require withdrawal from representation of all current related conflicted clients.

*Disclaimer: The Informal Ethics Advisory Notes from Bar Counsel are intended as outreach by the office of Bar Counsel for the use and benefit of the Maine bar. These scenarios are drawn from actual telephone calls received by the attorneys in the office of Bar Counsel in the course of providing informal advice on the Code of Professional Responsibility, known as Bar Counsel's "Ethics Hotline." The particular advice in each case is limited with reference to the particular factual situation related by the inquiring attorney who must be inquiring about his or her own conduct or the conduct of a member of his or her firm. We do not provide any advice to one attorney about the conduct of another attorney unless they are members of the same law firm. In the telephone opinions, we usually explore and discuss additional factual variables. However, I have attempted to pare down these factual scenarios to make the email newsletter more readable and useful in a general sense. Obviously, that creates the risk that slight variations on the facts, to a learned reader, may give rise to a different analysis and conclusion.