This is part 2 in a series that focuses on a situation that happens more often than you might think: a lawyer receives an unsolicited e-mail from a prospective client whose interests are adverse to those of one of lawyer’s current clients. Part 1 is HERE. And, here is the hypo I posed at the end of the post:
Imagine this: Person sends Lawyer an unsolicited e-mail asking for legal advice related to a dispute with Employer. The e-mail says something like this:
- “Dear Lawyer – I heard that you’re an expert in labor law. Well, I’m about to blow the whistle on my employer for all the illegal stuff that goes on over there. I’d like to talk to you before I do. One thing that worries me is that they’ll fire me. And, on that, I’ve been running a fantasy football league for the last 5 years. Each week, I spend about 8 hours of work time on the league and I use my work computer and email to send league updates. My manager is in the league. She told me that as I long as I get all my regular work done, it’s okay to do the league stuff but still put in for 40 hours. Is she right? Or will that give them an out? Please respond so we can set up a meeting. Thank you. Sincerely, Person.”
Turns out, Employer is a long-time client of Lawyer’s.
Which is most accurate in Vermont?
- A. Lawyer must forward the e-mail to Employer
- B. Lawyer may forward the e-mail to Employer.
- C. Lawyer must not forward the e-mail to Employer.
Let’s look at each option.
Option A: Lawyer must forward the e-mail to Employer.
If this is your answer, what’s the basis for your answer? That is, which rule requires Lawyer to forward the e-mail to Employer? Your strongest argument would be that Lawyer does not owe any duties to Person and, further, that Lawyer’s duties of competence, diligence, and communication require Lawyer to inform Employer what Lawyer has learned. The problem is that Lawyer may, in fact, owe a duty to Person. I’ll come back to this in a moment.
Option B: Lawyer may forward the email to Employer.
To me, this is the worst answer. If the rules allow Lawyer to forward the email to Employer, why wouldn’t Lawyer forward it? This option is too squishy: the email ether goes to Employer or it doesn’t.
Option C: Lawyer must not forward the email to Employer.
Take a look at Rule 1.18. It’s the rule that sets out a lawyer’s duties to “prospective clients.”
A “prospective client” is “[a] person who, in good faith, discusses with a lawyer the possibility of forming a client-lawyer relationship . . . .” Rule 1.18(a). Nothing in the facts suggest that Person did not act in good faith. So, I’d err on the side of caution and would not assume otherwise. For those of you wondering what “bad faith” would be, consider the divorce client who contacts every firm in town for no other reason than to create conflicts that prohibit those firms from representing spouse.
Now, you might be thinking “I don’t care if Person acted in good faith, if Lawyer doesn’t represent Person, Lawyer can share the e-mail.” Not so fast my friend. Rule 1.18(b) says:
- “Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client, shall not use or reveal information learned in the consultation, except as Rule 1.6 would require or permit or as Rule 1.9 would permit with respect to information of a former client.”
Nothing in Rule 1.6 appears to authorize disclosure of Person’s e-mail. That is, if Person was a current client, I don’t think that Rule 1.6 would require or permit Lawyer to disclose that Person intends to blow the whistle or runs a fantasy league from work. Lawyer would need Person’s consent.
Rule 1.9 gets a bit more interesting. Rule 1.9(c)(1) prohibits a lawyer from using “information relating to the representation of a former client . . . [unless] the information has become generally known.” Arguably, then, if it is generally known that Person intends to blow the whistle or runs a fantasy football league from work, Lawyer could forward the e-mail to Employer. Again, I’d urge caution and not assume that the information has become generally known. (Note: let’s not waste time aruging whether an unsolicited e-mail asking for legal help is the same as a dicussion or consultation. To me, it is.)
Disclaimer: if this happens to you, you can do what you want. I’m here only to offer guidance. Once a disciplinary prosecutor is hired, I have no idea what his or her position will be on this issue, nor do I know how a hearing panel or the Supreme Court would react to a proseuction on these facts.
My job, though, is to provide guidance. On the facts presented, if Lawyer called me, my sense is that “C” is most accurate. Absent more information, disclosure does not appear compelled or permitted.
Later today or tomorrow I’ll get to Part 3. It will address a third scenario: Employer asks Lawyer for legal advice related to Person’s employment.