Colorado Supreme Court
Office of Attorney Regulation Counsel
Promoting Professionalism. Protecting the Public.
Sorry, you're just not my
type
You may have ethical obligations to those clients who only
consulted you, even if you do not proceed with the representation. Take these steps to avoid
potential pitfalls. Part two of a three-part series on the stages of
representation.
By APRIL McMURREY and JAMES CARLSON
Fall 2016
In the last newsletter, we
discussed how to use an engagement letter and a written fee agreement to document
the beginning of an attorney-client relationship. But what if your initial consultation doesn't result in an
attorney-client relationship? By virtue
of consulting with a prospective client, you may have ethical obligations to
that individual pursuant to Colo. RPC 1.18 (Duties to Prospective Clients).
Rule 1.18 provides that, “A
person who discusses with a lawyer the possibility of forming a client-lawyer
relationship with respect to a matter is a prospective client.” The Rule goes
on to explain that the lawyer may not use or reveal information learned through
the consultation except as would be permitted under Rule 1.9 (Duties to Former
Clients). Further, the lawyer shall not represent a client with interests
materially adverse to those of a prospective client in the same or substantially
related matter if the lawyer received information from the prospective
client that could be significantly harmful to the prospective client unless
both affected clients give informed consent confirmed in writing.
Alternatively, the
representation of the other client may proceed provided that: the lawyer who
received the information from the prospective client took reasonable steps to
avoid exposure to more disqualifying information than necessary to determine whether
to represent the client; the lawyer is screened from participating in the
matter and will not receive any of the fees from the representation; and
written notice is given to the prospective client.
In light of Rule 1.18, consider
these practice pointers:
Be thoughtful about the initial conversation
While it’s important to
gather sufficient information regarding the matter to understand the issues, the
lawyer should limit the initial meeting to only such information as reasonably
appears necessary for that purpose. Cmt. 4 to Rule 1.18. Recognize it is possible to have the
prospective client agree that information provided will not prohibit the lawyer
from representing another client later, but that this must be done with the
prospective client’s informed consent. Cmt. 5 to Rule 1.18. Although such an agreement is permissible, it
is worth considering how the agreement may impact the prospective client’s
perception of the lawyer (and may well ensure the prospective client remains
just that: prospective).
Utilize a conflicts check system for clients and prospective clients
Record information
regarding all clients, even those who only consulted you, as those individuals
may be the easiest to forget. To that end, avoid phone or email consultations
where it may be more difficult to verify the identity of the prospective
client.
Document the consultation
If the client decided not
to hire you or you declined the representation, send a declination letter. This
will help to avoid confusion on the part of the prospective client and also provides
you the opportunity to document what information you received at the consultation.
Recognizing each new client
presents the possibility of a “prospective client,” and having policies in
place for the prospective client will serve to alleviate potential issues
later.
April McMurrey is Deputy Regulation Counsel in the Office of
Attorney Regulation Counsel. James Carlson is the Information Resources
Coordinator in the Office of Attorney Regulation Counsel.
[1] Presumably the firm has a conflicts-check system that identifies the fact wife previously consulted the firm regarding this matter.