Concept
Prospective Clients
Formation of client-lawyer relationship
Prospective Clients
A person who consults a lawyer about a possible engagement is not yet a client, but neither is that person a stranger. Lawyers have always owed such a person something, chiefly some of the protection of confidentiality for what the would-be client shared, even when lawyer and client later decided against an engagement.1 What stayed uncertain was the theory behind that protection, how far it reached, and whether the law should imply a quasi-client relationship for the limited purpose of an initial consultation.2 Rule 1.18 settles those questions by creating a special category, the prospective client.
The category exists because the formation rules leave a gap. The agency definition requires the manifested consent of both the person and the lawyer,3 and many consultations end before the lawyer has agreed to act. By then the person may have disclosed facts that would do real damage in the hands of an opposing party's lawyer. Treating that person as a stranger would penalize candor, and treating every caller as a full client would burden a lawyer with the consequences of a conversation that never led anywhere. The New Jersey Supreme Court described the balance this way: Rule 1.18 “seeks to strike a delicate balance between a client’s right to protect communications made in the context of a consultation precedent to the actual retention of a lawyer, and the lawyer’s right to be free to represent clients without being unduly restricted by the yoke of short-lived consultations that do not ripen into an attorney-client relationship.”4
The prospective client's status is therefore limited. The lawyer's duty to protect confidential information covers what the prospective client shared even if no relationship ever forms, and the duty of loyalty attaches as well, though the conflict-of-interest constraints are narrower because the relationship exists only for the discrete purpose of considering a representation that was never undertaken.5 The status is also not automatic, since a person who blurts out confidences at a social gathering or sends an uninvited email may have no reasonable basis to expect that the lawyer was open to a relationship. The first subsection below sets out the Rule 1.18 definition. The second adds a case-law formulation, the Togstad definition, which exams treat as a separate test. The third covers the steps a lawyer takes to keep a conversation from becoming a representation the lawyer never intended.
Rule 1.18 Consultations
Rule 1.18(a) defines a prospective client as a “person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter.”6 Each phrase narrows the category. The person must consult the lawyer, the subject of the consultation must be the possibility of a relationship, and the possibility must concern a particular matter. The status therefore arises earlier than the formation routes taught above: the lawyer has not yet agreed to act and the person is not yet a client, but the exchange already carries obligations.
Comment 2 to the rule supplies the limiting idea, which is that a genuine prospective client has a “reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship.”7 The rule applies only when there is a fair prospect that the representation will be undertaken, so not every person who chooses to share information with a lawyer comes within its protections.8 The expectation requirement matters because the status binds the lawyer to protect whatever the person disclosed, and the lawyer cannot control what a stranger chooses to send. If sending information were enough, anyone could recite a dispute to the lawyer most likely to be hired by the other side. Tying the status to a reasonable expectation limits it to disclosures that the lawyer's own words or conduct made possible.
The first situation outside the category is the unilateral communication. A person who confronts a lawyer unexpectedly, on the street or at a social gathering, and blurts out confidential information may lack any reasonable expectation that the lawyer is prepared to consider a relationship, unless the lawyer invited the disclosure or proves responsive to it. A person who imposes information on a lawyer by email or letter, when neither the lawyer's advertising nor an invitation on the lawyer's website encouraged it, ordinarily has no rational basis to believe the message will set the stage for a relationship.9
The lawyer's own conduct can move a message across that line, which is why the unilateral cases come with qualifiers. A disclosure may count when the lawyer invited it, and a message may count when the lawyer proves responsive to it, for instance by answering the tenant's email with questions about the lease and promising to review the matter.10 An email also counts when the lawyer's advertising or a website invitation encouraged readers to send information.11 A lawyer who asks for information has created the very expectation the rule protects, and a person who answers the request is doing what the lawyer asked.
The second firm's notice works because the test asks what a reasonable person would expect after reading the whole invitation. A warning that limits the lawyer's obligations in terms a reasonable person would notice and understand removes the expectation the invitation would otherwise create. A warning a reasonable person would miss or misread leaves the expectation intact, so the wording and placement of the notice matter.
A communication made only to disqualify the lawyer also falls outside the category. The definition protects a person who consults a lawyer about the possibility of forming a relationship, and a person who contacts a lawyer solely to create a conflict is not exploring that possibility. Excluding such contacts keeps the rule from becoming a tactical device, since otherwise a litigant could telephone the lawyer the other side is expected to hire, recite the dispute, and push the lawyer out of the matter.
Students most often forget to state the confidentiality consequence. Under Rule 1.18 the lawyer's obligation to protect confidential information applies to what a prospective client shared, even if no client-lawyer relationship is ever formed.12 The duty of loyalty attaches too, but the conflict limits on the lawyer are narrower than for a client.13 A person who blurts out facts at a party or sends an uninvited email receives none of this protection, so the first question on an exam is whether the person qualifies at all.
The Togstad Definition
Rule 1.18 protects the person who consults a lawyer about a possible engagement. A second formulation, the Togstad definition, asks a different question: when does a consultation in which the lawyer gave an opinion produce a relationship by implication?15 The answer rests on the lawyer's silence. If a layperson, relying on an attorney's professional status, entrusts the attorney with confidential information or obtains counsel on legal obligations or problems, and the attorney fails to affirmatively dissuade that person from confiding or trusting, the attorney cannot later be heard to deny that a relationship exists.16 Exam answers break that statement into three elements, and each can be tested against the facts.
The first two elements describe the person's side of the exchange. Seeking advice means the person asked for a professional judgment about a legal problem, and that request gives the lawyer's answer its weight, since a remark made in passing carries none. The reliance must also be reasonable, which means a reasonable person in that position would have treated the answer as something to act on. That limit protects lawyers from claims built on private belief.
The third element puts a burden on the lawyer that the first two do not, because of a difference in knowledge and cost. The lawyer knows whether an answer is meant as advice and can correct a mistaken impression in a single sentence. The layperson usually cannot tell a considered opinion from a courtesy and has no easy way to find out. If silence cost the lawyer nothing, a lawyer could give a confident opinion, let the person act on it, and then deny any relationship. A lawyer who wants to avoid responsibility has to say so.
A lawyer who answers the same question with “I don’t think you have a case” and says nothing more has done the opposite. The person who then stops looking for counsel has acted as a reasonable person would on an opinion the lawyer did nothing to qualify, so all three elements are met. What separates the two lawyers is what each said, because the person's request and the subject of the question are the same in both.
The Togstad definition overlaps with Rule 1.18 but tests something different. Rule 1.18 asks whether the person reasonably expected that the lawyer was willing to discuss a relationship, and when the answer is yes the lawyer must protect what the person shared even if no relationship forms. The Togstad definition asks whether the person sought advice, reasonably relied on the lawyer's response, and was left undissuaded, and when those elements are met the lawyer cannot deny that a relationship exists. A stem in which a person describes a problem and receives an opinion may call for both analyses: Rule 1.18 for the confidentiality of what the person disclosed, and Togstad for whether the opinion itself created a relationship.
Togstad also applies the implied-consent route taught earlier. The agency definition requires consent from the person who is to act as well as from the person who delegates,17 and a lawyer's silence in the face of reasonable reliance is how a court finds the lawyer's consent when no one spoke it. When a stem centers on an opinion given during a consultation, state the three elements by name. When the question is whether any relationship formed at all, add the implied-consent analysis.
Avoiding Accidental Representation
A lawyer can become someone's agent without ever deciding to. The agency definition builds a relationship from two consents, and the sections above showed that a court may find the lawyer's consent in silence when a person reasonably relies on the lawyer.19 The same rules show the way out, because the lawyer knows what an exchange means and can clarify it in a sentence. When a layperson, relying on a lawyer's professional status, entrusts the lawyer with confidential information or obtains counsel on a legal problem, and the lawyer fails to affirmatively dissuade the person from confiding or trusting, the lawyer should not later be heard to deny that a relationship exists.20
The lawyer controls most of the signals that shape a person's belief: what is said at the end of a meeting, what an advertisement or website invites, and how much the person is allowed to disclose in the first conversation. Each of the three safeguards below works on one of those signals.
The first safeguard is the non-engagement letter. Experienced practitioners advise a lawyer who decides not to take a matter to say so in writing, telling the person in no uncertain terms that the lawyer will not handle the matter that was discussed.21 The letter defeats the third Togstad element by dissuading the person from treating the earlier conversation as advice, and it gives the person a clear signal to look for another lawyer, which silence never does. A person who believes a lawyer is on the case has no reason to keep searching. The wording matters, because a letter that hedges about whether the lawyer might help later leaves the reliance in place.
The letter in the second scene ends the reliance question but leaves the confidentiality obligation untouched. Under Rule 1.18 the duty to protect what a prospective client shared applies even when no client-lawyer relationship ever forms,22 so an answer that says the lawyer owes nothing after a clear decline overlooks that continuing duty.
The second safeguard is cautionary language wherever the lawyer invites people to submit information. Prospective-client status depends on a reasonable expectation that the lawyer is willing to discuss a relationship, and a person who imposes information by an email or letter that the lawyer's advertising or website invitation did not encourage ordinarily has no rational basis for that expectation.23 The lawyer writes the invitation and so controls how much expectation it creates. A web form that asks for the details of a possible claim creates the expectation, while a conspicuous statement that submitting information creates no obligation limits it. The notice must be one a reasonable reader would see and understand, since the test is what that reader would expect.
The third safeguard looks forward to conflicts rather than backward to reliance. A lawyer's interaction with a prospective client may restrict the lawyer's ability to represent other parties, so the lawyer may adopt measures to control the information received during an initial consultation. Alternatively, the lawyer may seek the prospective client's advance consent that receiving the information will not prevent the lawyer from representing another party in the matter.24 Every fact a prospective client discloses is something the lawyer must protect, so a lawyer who takes a full account of one side's dispute may find that conversation constraining a later engagement for the other side. Taking in only what is needed to decide whether to accept the matter, and getting consent in advance, shrinks what a short consultation can cost. A non-engagement letter cannot do this work, because it prevents reliance but cannot recall information already received.