Bar Counsel Notes: Confidences of/duties to Prospective Clients
A prospective client (PC) met with Lawyer and at the end of the fairly lengthy initial intake PC made reference to a potential adverse party (AP) that Lawyer knows is a company her law firm represents. As a result, Lawyer declined taking on PC as a client. Because that declination means that PC never became Lawyer's actual client, may she now discuss with AP (or anyone else) any portions of that intake discussion?
No. Under MRPC Rule 1.18 (Duties to Prospective Client), all of the information discussed at the initial intake between PC and Lawyer must remain confidential. Rule 1.18(a) states that any "person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client." In this instance, it does not matter that PC did not become an actual client of Lawyer or her law firm. Under Rule 1.9(b), even when no client-lawyer relationship ever ensues with PC, Lawyer "…shall not use or reveal information learned in the consultation (with a prospective client)…"
*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.