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You receive an unsolicited e-mail at your law office, or a message on your voice mail, from someone telling you all about a suit they want to bring — against one of your biggest clients. Someone at a neighborhood barbecue casually asks your views on an “interesting” legal question he encountered. You speak with a prospective client who wishes to discuss a matter, but you realize immediately that you have a conflict, so you end the conversation. It’s clear that an attorney-client relationship was not formed in any of these situations. What is not as easily answered, however, is whether the lawyer in these scenarios has a duty to keep confidential any information that may have been disclosed to her along the way. If there is a duty of confidentiality, there could be consequences in terms of potential conflicts of interest. In order for a communication to a lawyer to become confidential, it is not necessary for an attorney-client relationship to actually be formed. According to the Comment to Rule 1.6 of the D.C. Rules of Professional Conduct (which differs from the Comments to the ABA Model Rule):
[T]he duty of confidentiality imposed by this Rule attaches when a lawyer agrees to consider whether a client-lawyer relationship shall be established. Thus, a lawyer may be subject to a duty of confidentiality with respect to information disclosed by a client to enable the lawyer to determine whether representation of the potential client would involve a conflict of interest.

Under current rules, it’s not always easy to assess whether a duty of confidentiality is owed under each of the above scenarios. There are, however, some guiding principles. There are also options that lawyers can consider to reduce the risks of being unwittingly bound to a duty of confidentiality to a stranger. NO DIRTY TRICKS First, if a person’s motive in conveying information to a lawyer is not genuinely to seek legal advice, but rather to intentionally attempt to create a “conflict” in order to prevent an adversary from retaining the lawyer, no duty of confidentiality attaches. The duty of confidentiality presumes that a prospective client is sincerely providing information in order to seek advice. A dirty trick is a dirty trick. Second, the reasonable perspective of the client, rather than that of the lawyer, will determine whether an expectation of confidentiality was created. Third, under D.C. rules, in order for confidentiality to be invoked, there should be a showing that the lawyer did something to create a reasonable impression to the prospective client that there was an expectation of nondisclosure. Applying these principles to these three examples provides clues to the answers. In the case of the unsolicited e-mail and unsolicited voice mail, the lawyer has a pretty good argument that she did nothing to promote a possible attorney-client relationship or otherwise to create an expectation of confidentiality. On the other hand, if the e-mail came from a visitor to the lawyer’s Web site, an argument could be made that the site created an implied invitation to communicate confidential information. A firm’s Web site should therefore contain a clear disclaimer clarifying that e-mails sent before any conversation with a lawyer in the firm will not be treated as confidential. The unsolicited voice mails, at least under the D.C. rules, would also permit a reasonably good argument that the lawyer did nothing to create the expectation of confidentiality. Here again, if the call was made in response to an advertisement expressly encouraging the public to call the lawyer, the result would probably be different. In addition, a lawyer may wish to consider instructing her secretary not to permit unknown callers to leave voice mail recordings. Under both the e-mail and voice mail scenarios, a lawyer who maintains that she did not intend to elicit a confidential communication should avoid reading the e-mail, or listening to the voice mail, once it becomes clear that it was an unwanted communication. The same holds true for an unwanted letter. With respect to a conversation in which the lawyer intended to discuss the possibility of representing a client in a new matter, any information disclosed would be confidential, unless the lawyer and the prospective client agreed otherwise at the outset of the conversation. Under D.C. Rule 1.10(a) and Comments 7 and 8, however, a conflict created solely by a conversation with a prospective client, unlike other conflicts, disqualifies only the lawyer who had the conversation and not her entire firm, if that lawyer is properly screened. Finally, the scenario involving the casual conversation at a party is probably the murkiest because the circumstances can be so varied. It might be wise to either steer the conversation into another direction or at least state that you are wearing your “friendly neighbor hat” and not your “lawyer hat.” ABA Opinion 90-358 suggests a number of steps that a lawyer can consider to reduce the impact of this problem: (1) limit the initial conversation with a prospective client to assessing whether a conflict exists; (2) enter into an agreement with a prospective client that the initial conversation will not be considered confidential until it can be determined whether there is a conflict; and (3) if the initial conversation indicates a conflict, in a jurisdiction that permits screening for this purpose, screen the lawyer promptly from any matter in which the firm’s representation is adverse. The ABA Ethics 2000 Commission is recommending a new Rule 1.18 to clarify a lawyer’s obligations regarding prospective clients. Among other things, it would generally permit the screening of a lawyer who would be disqualified from a new matter because of a confidential discussion with a prospective client. As in many ethics dilemmas, there is no substitute for a lawyer’s awareness and general sensitivity to the issues as a means of minimizing problems. Arthur D. Burger is a partner at D.C.’s Jackson & Campbellwhose practice includes representing lawyers and law firms in matters of professional responsibility. He is also a frequent instructor of the D.C. Bar’s mandatory ethics course for new admittees. His e-mail address is [email protected].

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