Bar Counsel Notes: Duties to Prospective Client

Attorney A talked briefly by phone with prospective client W regarding her wish to obtain a divorce from H. They discuss a few of the facts and issues, but do not reach any agreement for Attorney A to actually commence representation of client W. In fact, client W later decides to not hire Attorney A. Without telling Attorney A, she instead hires attorney Q from another city.

Attorney B, an associate at A's law firm, then meets with and is immediately hired two days later by client H in the same domestic matter involving W. At their initial consultation Attorney B acquired necessary background factual and financial information to represent H in his divorce action against W. After that meeting, Attorney B then checked the firm's client records and found no entry that signaled any conflict in her representation of client H. As a result, she then entered client H's name into the office's system. Three days later, in preparation for the firm's weekly meeting, Attorney A learned for the first time that client H had become a client of the firm, and then tells Attorney B she had earlier discussed the matter with client W.

Under the new Maine Rules of Professional Conduct, what is the result of the manner in which these meetings occurred?

Prior to each discussion with either prospective client, Attorneys A and B should have then checked the firm's record system to learn if any client - former or current - conflict was present. Under these facts, Attorney A would have found no conflict indicator at the time of her call with client W. As soon as Attorney A had received any information from client W, either during their call or before if that was the case, Attorney A should have immediately entered client W's name into the office's client records. Under newly adopted M. R. Prof. Conduct 1.18, there is now a specific "prospective client" rule. Under Rule 1.18, although client W declined to hire attorney A, even their brief phone consultation results in her being treated the same as an actual client of the firm. As a result, her client name and identity information should have been immediately entered and posted into the firm's client record system. With or without that system entry, however, she must be treated as a former client of the firm and absent her informed consent, confirmed in writing (see M. R. Prof. Conduct 1.0(b),(e)), the firm cannot represent client H. See M. R. Prof. Conduct 1.9 and 1.18. See also Advisory Opinion #8.

Assuming Attorney A had made a correct timely entry of client W's identity data, and Attorney B checked for such information before her meeting with client H, that meeting should not have occurred, or at least not without the required informed written consent from client W (which would seem unlikely to occur).

Thus, under the facts as initially presented, neither Attorney A nor Attorney B may represent either client H or client W in their divorce matter.

*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.