Who Is a Prospective Client

Who Is a Prospective Client

Rule 1.18 protects one category of person, and paragraph (a) defines it in a single sentence: a person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.¹ Every later duty depends on that sentence. Paragraph (b) forbids the lawyer to use or reveal information learned from a prospective client, and paragraph (c) bars adverse representation when the lawyer received information from a prospective client that could be significantly harmful to that person.² Someone outside the definition has no claim under Rule 1.18, so a dispute over whether a lawyer must keep a confidence or decline a matter often begins and ends with status.

The definition has three working parts. The person must consult, the consultation must concern the possibility of a client-lawyer relationship, and it must relate to a matter. The verb consults carries the most weight, because it describes an exchange in which the lawyer takes part. That requirement follows from the lawyer’s position. A lawyer cannot control who sends an unsolicited message, and if a stranger’s one-way communication could create confidentiality duties and a potential conflict, anyone could burden a lawyer simply by writing. Tying status to a real exchange confines the rule to cases in which the lawyer had some chance to manage what was learned.

Status also turns on the person’s reasonable expectation: whether, given what the lawyer said and did, the person could sensibly believe that the lawyer was open to considering a representation. That focus explains why a lawyer’s own conduct, whether an open invitation or a clear warning, can change the answer, and why a person whose purpose was something other than hiring a lawyer fares differently. The three subsections take those questions in order: what makes a contact a consultation, how invitations and warnings shape the person’s expectation, and why a person who approaches a lawyer only to disable the lawyer falls outside the rule.

The Consultation Standard

Rule 1.18(a) decides who counts, and two features of its sentence carry the analysis.³ The verb consults describes an exchange in which both sides take part: the person presents a problem, and the lawyer engages with it by listening, asking questions, or discussing whether the firm might take the matter. The object of the exchange must also be the possibility of a client-lawyer relationship, so a conversation that has nothing to do with hiring this lawyer falls outside the paragraph.

The comment to the rule turns the verb into a working test by asking about the person’s expectation. A person who communicates information unilaterally to a lawyer, without any reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship, is not a prospective client.⁴ The standard is objective. It asks what a reasonable person in the sender’s position would have expected from the lawyer’s words, conduct, and circumstances, so a sender’s private hope adds nothing. Setting matters. A person who confronts a lawyer unexpectedly on the street or at a social gathering and blurts out confidential facts usually has no basis to think the lawyer is prepared to consider a representation, and a person who sends an email or letter that the lawyer’s advertising or website never encouraged has no rational basis to expect that it will lead to a relationship.⁵ Each of those settings carries the same qualification: a lawyer who invited the contact, or who proves responsive to it, supplies the expectation that was missing.⁶ The next subsection takes up that qualification.

The standard cares about the quality of the exchange and nothing about its packaging. The text names no particular format, so a conversation in an office, a phone call, and a back-and-forth by email can each qualify, and the comment states that the duty not to use or reveal the information exists regardless of how brief the initial conference may be.⁷ Length is irrelevant because of what the rule protects. The harm to be prevented is the exposure of the person’s confidences, and a person can disclose the most damaging fact in the first two minutes. A twelve-minute meeting in which both sides trade facts and talk over whether the lawyer will take the case therefore makes the person a prospective client even though it ends in a polite refusal, and the lawyer must still protect what was learned whether or not a relationship forms.⁸

The question this standard generates most often is whether contact that ran in only one direction created any duties, and the answer turns on whether the lawyer ever took part in the exchange.

The rule also settles an older uncertainty. Lawyers have always owed something to people with whom a relationship was being contemplated, and the information a would-be client shared was entitled to at least some protection, including the attorney-client privilege, even when no relationship followed. What remained unclear was the theoretical basis for that protection, its scope, and the nature of the relationship between lawyer and putative client, including whether a quasi-attorney-client relationship should be implied for the limited purpose of the initial consultation.¹¹ Rule 1.18(a) replaces that inquiry with a defined category and a defined entry condition: a consultation about the possibility of a relationship, grounded in a reasonable expectation that the lawyer would discuss it. The text asks neither whether the lawyer gave advice nor whether the person relied on any.

Invitations and Warnings

A consultation presupposes that the person had reason to think the lawyer was open to a relationship, and the lawyer’s own conduct often supplies that reason.¹³ The comment to Rule 1.18 says that a lawyer who, in person or through advertising in any medium, “specifically requests or invites the submission of information about a potential representation,” without clear and reasonably understandable warnings and cautionary statements that limit the lawyer’s obligations, will likely owe the rule’s protections to a person who responds with information.¹⁴ Such a sender is no stranger writing to an unsuspecting lawyer. The sender is answering a request the lawyer made, and the lawyer cannot sensibly treat the reply as an intrusion.

The rule falls this way because the lawyer controls the expectation and can manage it at almost no cost. The lawyer decides what the firm’s advertising, website, and intake practices say, and can rewrite any of them in an afternoon. When the lawyer asks the public to send in the facts of a problem, a person who does so may treat the request as sincere, and the confidences that arrive were solicited by the very party who will later hold them. When the lawyer instead warns clearly, a reasonable sender knows the limits of what the lawyer will do with the information, and no expectation of the kind the rule protects survives the warning. The risk lands on the party best placed to control it. The same logic explains why one-way contact creates nothing: a lawyer cannot stop strangers from writing, so the rule attaches no duty to a message the lawyer did nothing to invite.

The line holds from the other direction as well. A would-be client who thrusts unsolicited information on a lawyer who did nothing to encourage it has no fair basis for believing the lawyer welcomed it.¹⁵ A website that only describes the practice and lists the lawyers’ email addresses invites nothing, so a message sent through it is a unilateral communication of the kind the comment excludes.¹⁶ The same goes for an advertisement that only describes the lawyer’s experience, which tells readers about the lawyer without asking them for anything. A reply to such material is the sender’s own initiative, and the lawyer has supplied nothing that would make the sender’s expectation reasonable.

Step two carries the weight whenever the facts show an invitation, because an identical request can produce opposite results depending on the notice that accompanies it. An exam that sets two intake pages side by side is testing exactly that.

A warning protects the lawyer only to the extent that it dispels the expectation the invitation created, and its content must fit what the rule protects. Rule 1.18 covers people with whom no client-lawyer relationship ever forms, so a notice that merely says sending a message creates no attorney-client relationship answers a question the rule does not ask, and it may not excuse the lawyer from protecting the information or from declining an adverse representation.¹⁸ A notice telling the sender that receipt of the information will not prevent the firm from representing another party in the matter works better, because it speaks to the sender’s real worry, whether the firm can turn the confidences against the sender. A warning can also overshoot: a notice announcing that submitted information may not be confidential risks loss of the attorney-client privilege for that information, even if the lawyer later accepts the representation.¹⁹

A warning must also be noticed to work. A lawyer who wants certainty can make the sender acknowledge the notice before the web form will send, or can play it for a caller before the caller leaves a message, since a notice the sender can skip leaves open the argument that no reasonable person ever saw it.

Warnings do little for a person who walks in for a face-to-face consultation, because the meeting itself confirms that a relationship is under consideration. The lawyer’s protection there lies in controlling what the meeting exposes. A lawyer is disqualified from representing another client adverse to the prospective client in the same or a substantially related matter only if the lawyer received information that could be significantly harmful to the prospective client, and the encounter may cost the lawyer any other client, including an existing one, in that matter. The lawyer therefore has good reason to arrange the consultation so that it limits the information received.²⁰ A lawyer might, for instance, learn who the other parties are and run a conflicts check before the person describes the substance of the problem.

Some lawyers decide that warnings deter prospective clients and weaken their advertising, and the rule leaves that choice open. The lawyer who makes it accepts the opportunity cost: the lawyer may receive information that could be significantly harmful to the sender and then face disqualification from representing other or existing clients in the same or a substantially related matter.²¹ The disqualification does not stay with the one lawyer who read the message, because no lawyer in the firm may knowingly undertake or continue the representation, except as paragraph (d) provides.²² An unwarned invitation therefore puts at risk every client the firm might later represent against the sender.

Taint Shopping Excluded

Rule 1.18(a) protects a person who consults with a lawyer about the possibility of forming a client-lawyer relationship, and that wording makes the person’s purpose part of the test.²⁴ A person who sits down with a lawyer to talk over retention is doing what the rule shelters. A person who sits down for another reason is not consulting about retention at all, however much the meeting resembles an intake interview. The comment to the rule applies that reading to a familiar tactic: a person who communicates with a lawyer “for the purpose of disqualifying the lawyer” is not a prospective client.²⁵ Lawyers call the tactic taint shopping, and the exclusion handles it through the definition itself, as a matter of purpose, rather than through a free-standing exception.

The tactic tempts because the consequences of the rule are so large. Paragraph (c) bars a lawyer from representing a client with materially adverse interests in the same or a substantially related matter when the lawyer received information from a prospective client that could be significantly harmful to that person, and the same paragraph extends the disqualification to every lawyer in the firm unless paragraph (d) supplies a cure.²⁶ What triggers those consequences is the content of what the person says, and the person controls the content. A litigant who expects to be sued can pick the most capable lawyer in the field, volunteer a few damaging facts, and wait to see whether the opponent calls the same lawyer. If the opponent does, one conversation may have removed an entire firm from the case.

The rule withholds protection from this person for the same reason it protects everyone else. Prospective-client status exists so that people can speak candidly while deciding whether to hire a lawyer, and that candor serves its purpose only when the speaker is exploring a relationship. A person who is not genuinely seeking legal advice or services, and who aims instead to keep the lawyer from being engaged by an opposing party, has no need of the shelter, because the disclosure was never meant to support a decision about retention.²⁷ Without the exclusion, a rule meant as a shield would become a weapon, available to any party willing to pay for a consultation in order to disable the best counsel on the other side. The reasonable-expectation test points the same way. The shopper may satisfy its surface, but the shopper’s own aim is missing, because the shopper confides in order to disable the lawyer.

The exclusion usually surfaces after the fact, because a lawyer at intake often cannot tell why a person is talking. The question arrives when the opposing party hires the lawyer and the person who consulted moves to disqualify. The inquiry then follows the rule: was the person genuinely seeking legal services? No one can read a mind, so the answer rests on circumstances, such as whether the person asked about fees, availability, or staffing, whether the person approached other lawyers or only the one the opponent was likely to hire, and how the contact was timed against the opponent’s search for counsel.

The two scenes involve the same lawyer, the same opponent, and the same damaging disclosures, so the disclosures cannot separate them. Only the purpose behind the conversation differs, and conduct such as the questions asked, and the questions not asked, makes that purpose visible. An exam stem that pairs a detailed disclosure with a motion to disqualify therefore still asks whether the person was genuinely seeking services. The volume of confidential detail does not answer that question, and neither does the inconvenience of disqualification. The exclusion also gives a lawyer no license to presume bad motives. A lawyer who treats a genuine consulting person as a shopper and then uses the information risks violating the confidentiality duty if the person’s purpose proves to have been real.³⁰