Every so often I decide to address a topic that I know will result in a post that most will consider too long to read. I never know whether to forge ahead and risk the dreaded “TL; DR” in the comments, or whether to break the post into smaller, more palatable parts.
Today, I choose to go easy on palates.
I’ve long been interested in the rule that sets out a lawyer’s duties to prospective clients. Indeed, a common inquiry is “Mike, I met with a potential client who didn’t hire me. Now the other side wants to retain me. Can I take the case?” As most of you know, my answer is “it depends.”
Today’s post outlines the history of Vermont’s rule. Two posts will follow, with each addressing a different part of the analysis that follows my response that “it depends.”
The History of Vermont’s Rule
Long ago, but in our very own Milky Way galaxy, I investigated this disciplinary complaint:
- Person met with Lawyer to discuss potential representation in a matter.
- Person shared a significant amount of information about the matter with Lawyer.
- Person opted not to retain Lawyer.
- Litigation ensued.
- Opposing Party retained Lawyer.
- Lawyer represented Opposing Party in the same matter about which Person had consulted with Lawyer.
Back then, Vermont’s rules addressed conflicts between (1) current clients; (2) lawyer and client; and (3) a current client and a former client. We did not have a rule that set out a lawyer’s duties to the person who meets with, but does not retain, the lawyer. Indeed, at the time, the general legal principle was that prospective clients were “neither fish nor fowl” for the purposes of the ethics rules.
Returning to the scenario I investigated, I conceded that Person was not a current or former client of Lawyer. Nevertheless, I argued that the spirit and intent of the conflicts rules rendered Lawyer’s representation of Opposing Party a violation.
Alas, a hearing panel of the Professional Responsibility Board disagreed. The panel concluded that my decision to charge Lawyer with a violation was not supported by probable cause. Thus, complaint dismissed.
Not long thereafter we got to work on proposing & promulgating V.R.Pr.C 1.18. It took effect on September 1, 2009.
Under the rule, a “prospective client” is a person who, in good faith, discusses with a lawyer the possibility of forming client-lawyer relationship. Comment [2] sheds some light on who qualifies as a “prospective client.”
- “Not all persons who communicate information to a lawyer are entitled to protection under this rule. A person who communicates information unilaterally to a lawyer, such as through an unsolicited e-mail or other communication, without any reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship, is not a ‘’prospective client‘ within the meaning of paragraph (a). A person who participates in an initial consultation, or communicates information, with the intent to disqualify a lawyer from representing a client with materially adverse interests is not acting in good faith and is not ‘a prospective client’ entitled to the protections of paragraph (b) or (c) of this rule. A person’s intent to disqualify may be inferred from the circumstances.”
From there, the rule includes two key aspects:
- If no relationship ensues, the lawyer’s duty of loyalty is relaxed, but the duty of confidentiality is not. That is, the lawyer must maintain the prospective client’s confidences as if the person had retained the lawyer.[1] However, the lawyer may represent someone whose interests are materially adverse to the prospective client, even in a matter that is the same as or substantially related to the matter that was the subject of the consultation, as long as the lawyer did not receive information that “could be significantly harmful” to the prospective client.[2]
- If a lawyer receives disqualifying information during the consultation, the lawyer’s conflict is not imputed to other lawyers in the same firm, but only if the lawyer “took reasonable measures to avoid exposure to more disqualifying information that was reasonably necessary to determine whether to represent the prospective client.”[3]
The posts that follow will address:
- The nature & type of information that is considered “significantly harmful;” and,
- The “reasonable measures” that a lawyer or firm can take “to avoid exposure to more disqualifying information that was reasonably necessary to determine whether to represent the prospective client.”
By the way, having adopted Rule 1.18, I assume that it can no longer be said that prospective clients are “neither fish nor fowl” for purposes of the Vermont Rules of Professional Conduct. Alas, I don’t know which they’ve become.
As always, let’s be careful out there.
[1] V.R.Pr.C. 1.18(b).
[2] V.R.Pr.C. 1.18(c).
[3] V.R.Pr.C. 1.18(d).
Ethical Grounds 