Confidentiality Obligations to Prospective Clients under Texas Ethics Opinion 691
Confidentiality, EthicsWhat are your confidentiality obligations to prospective clients? The Professional Ethics Committee for the State Bar of Texas (“Ethics Committee”) has weighed in with Opinion 691 (“Opinion”). We’ve provided a brief summary and key takeaways below.
The facts presented to the Ethics Committee were as follows. Five years ago, Wife approached Lawyer A to discuss retaining Lawyer A to bring a divorce action against her Husband. Wife and Lawyer A met for 45 minutes. Wife declined to retain Lawyer A, and took no further action to divorce Husband. Lawyer B and Lawyer A have been law partners for many years. Recently, Husband asked Lawyer B to represent him in divorcing Wife. Lawyer A did not keep any documentation from his meeting with Wife and stated he did not recall any information shared by Wife during the consultation. Wife refused to consent to Lawyer B’s representation of Husband in divorce or waive any conflict of interest arising from her consultation with Lawyer A.
The Ethics Committee ultimately concluded that Lawyer A had a duty of confidentiality to Wife, which limited his ability to represent Husband in divorce. Accordingly, Lawyer A was prohibited from representing Husband under Rule 1.06(b)(2). And Lawyer A’s disqualifying conflict was imputed to Lawyer B and the other attorneys in the firm.
KEY TAKEAWAYS
1.Yes, lawyers owe a duty of confidentiality to prospective clients. And this includes former prospective clients.
While there’s no Texas Rule dedicated to a lawyer’s duties to prospective clients, the duty of confidentiality may attach before the lawyer-client relationship is established. Accordingly, a lawyer’s unauthorized use or disclosure of confidential information provided by a prospective client violates the Duty of Confidentiality under Rule 1.05 and subjects the lawyer to possible disciplinary sanction.
2. Don’t assume the individual is not a prospective client and take steps to protect yourself and your firm.
While an individual who consults with a lawyer for the purpose of disqualifying the lawyer is not a “prospective client”, what about someone who sends information through a link on the firm’s website? The Opinion provides that an individual who sends information to a lawyer “unilaterally and without the lawyer’s express or implied invitation is not necessarily a ‘prospective client.’” (emphasis added).
In Opinion 651, which we wrote about in detail here, the Ethics Committee concluded that while lawyers are not required to warn prospective clients who use website email links on a law firm’s site that confidential information sent to law firms “will not be treated as confidential and may be used against the person sending the information”, the firm and its lawyers are required to treat the information received as confidential in the absence of such a warning. This means that the information in the email cannot be used against the prospective client, and that the confidential information could create a conflict of interest.
And what about unsolicited emails? The best approach is to be proactive and take steps suggested by the Washington State Bar Ethics Opinion 2080, which includes the following:
- Do not solicit communication from prospective clients, especially over a website, email or other communication that allows a client to divulge an excessive amount of information.
- Limit the amount of information you accept to the bare essentials needed to perform a conflict check.
- Implement a timely screen for any individual who received confidential information.
- Implement procedures by which non-lawyer staff receive and review inquiries to screen for conflicts.
3. Consultation with a prospective client does not create a “former client” conflict under Rule 1.09
As Rule 1.09 only applies when a lawyer has formerly “represented” a client, a conflict in violation of Rule 1.09 does not arise when a lawyer represents a person adverse to a former prospective client.
4. Consultation with a prospective client does not create an opposing party representation conflict under Rule 1.06(a).
Rule 1.06(a) does not pertain to a representation adverse to a prospective client as the Rule applies only if the lawyer represents both opposing parties.
5. Consultation with a prospective client may create an adverse limitation conflict under Rule 1.06(b)(2).
A lawyer should not represent a client with “interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter.”
In evaluating whether a conflict is caused by consultation with a practice client, the lawyer should consider: (a) the nature of the representation sought by the prospective client; (b) the nature of the matter adverse to the prospective client; (c) the length of discussion with the prospective client; (d) the matters actually discussed; and (e) the contents of any documents given or shown to the lawyer.
It’s important to note that a lawyer claiming she is unable to remember the information disclosed by the prospective client is not determinative of whether a conflict exists under this Rule.
6. When representation is prohibited based on a consultation with a former prospective client, effective consent is required.
In this context, effective consent requires: (1) the informed consent of both the former prospective client and the currently proposed client; and (2) the lawyer’s reasonable belief that the representation can proceed without violating the duty of confidentiality owed to the former prospective client.
