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.