By Anne Rudolph
Lana Lawyer has a plaintiff’s personal injury practice. She does not maintain an internet web site and does not otherwise engage in advertising. However, her e-mail address is published on the State Bar of California membership records website accessible to the public.
On Monday morning Lana received an e-mail from Vicky Victim, the driver of the second car in a five car “daisy chain” rear end collision, which read:
Dear Lana:
I obtained your email address from the State Bar web site. I would like to retain you to represent me in a personal injury case in which I was rear-ended by three cars. I was in car no. 2. I have a lot of back pain and my knee was injured a lot. Prior to the accident, I had a few drinks. Do you think they will discover that? Will it change my recovery? Please contact me at the following telephone number. I look forward to your representation.
Prior to reading Vicky’s e-mail, Lana had already had a conference with Henry, one of the other drivers in the crash, who wanted to hire her and had disclosed a lot of confidential information to her during their conference.
Lana has the following questions concerning her ethical obligations:
- Is Vicky’s unsolicited e-mail confidential?
- Is Lana precluded from representing Henry? If not, can Lana use the information received from Vicky in that representation?
This was the exact hypothetical and questions posed in SDBCA Ethics Opinion 2006-1.[1] The majority opinion concluded that Vicky did not fit into the definition as a “client” under Evidence Code section 951, that the unsolicited e-mail was not confidential, and that Lana could represent Henry and use the information that Vicky had disclosed to her in the e-mail.
However, illustrating that issues involving an attorney disclosing sensitive information of a person are the subject of considerable debate, even when the information is unsolicited and comes from someone who is not a client, Ethics Opinion 2006-1 has the unusual inclusion of a dissent to the majority opinion.
The dissent argued that Vicky did fit into the definition of a “client” under Evidence Code section 951 and that she had a reasonable expectation that the information in her e-mail was confidential because it was sent to an attorney for the purpose of seeking legal advice.
The potential conflict situation when an attorney is contacted by a person seeking representation raised in this 2006 opinion continues to present challenges for attorneys today. Under what circumstances does a person contacting an attorney for possible representation become a client? When is the communication a consultation? When is the information communicated confidential? How can an attorney ensure that a conflict does not arise with a current or future client when they are contacted by a person seeking representation?
California attorneys now have some guidance from Rule of Professional Conduct 1.18, which was added in 2018, and addresses an attorney’s duty to a prospective client.
A “prospective client” is a person who, directly or through an authorized representative, consults an attorney for the purpose of retaining the attorney or securing legal services or advice from the attorney in the attorney’s professional capacity.
Even if the attorney does not proceed to represent the person, an attorney cannot use or reveal confidential information the attorney learned in the consultation with a prospective client without the written consent of the prospective client. And, an attorney who obtains confidential information from a prospective client also cannot represent a client with interests materially adverse in the same or a substantially related matter without written consent.
The law firm of an attorney who receives confidential information from a prospective client may still undertake representation of a client with adverse interests if the attorney who received the information took reasonable measures to only obtain enough information as was reasonably necessary to determine whether to represent the prospective client and that attorney is screened from participation in the matter, receives no part of the fee, and written notice is promptly provided to the prospective client.
What about the situation Lana Lawyer found herself in with the unsolicited e-mail from Vicky Victim in which Vicky revealed material information about the case?
Comment 2 to Rule 1.18 instructs that a person who communicates information unilaterally to an attorney, without reasonable expectation that the attorney is willing to discuss the possibility of forming an attorney-client relationship or provide legal advice is not a “prospective client” under Rule 1.18.
Accordingly, under this hypothetical, Vicky would not be a prospective client and Lana would be permitted to represent Henry in the matter and use the information that Vicky had communicated to her.
There are steps that an attorney can consider taking to minimize the possibility that a person seeking representation will become a prospective client who is owed duties by an attorney under Rule 1.18:
- Maintain a database of names of current, former and prospective clients in order to screen conflicts when a person seeking representation contacts an attorney.
- Develop a conflict screening procedure wherein a staff member initially speaks with a person seeking representation to obtain names of all parties and interested persons to ensure that there is no adverse interest with an existing client, former client or prospective client.
- If the attorney or firm maintains a web site that allows members of the public to contact the attorney or firm through the web site, include a notification and disclaimer on the web site indicating that any information provided is not confidential, and that sending a communication does not create any attorney-client relationship.
- Limit the initial communication between the attorney and a person seeking representation to obtaining only nonconfidential information if possible, or obtaining as little confidential information as is needed to determine if the person and attorney wish to move forward with representation.
- If the communication does not result in representation, write a quick note or e-mail to the person to confirm that the attorney is not representing the person. If the person seeking representation did not relay any confidential information during the communication, then state that in the note or e-mail to avoid any misperception that the person has become a prospective client under Rule 1.18.
This is not an exhaustive list, but merely some suggestions to avoid creating conflicts with persons who contact an attorney about possible representation but do not end up becoming clients.
[1] Ethics Opinion 2006-1 also contained a third question — “If Lana cannot represent Henry, can she accept representation of Vicky Victim?” That question is omitted here because the focus is on whether the information in the unsolicited e-mail is confidential.