Opinion 2080

Facts
The inquiring lawyer presents a hypothetical scenario in which a law firm maintains a website that identifies the firm, each attorney, and each attorney`s area of practice. The website also provides contact information and an email address for the firm and for the attorneys listed. The law firm`s website informs the visitors that any information provided to the firm or to any of its attorneys would not be considered confidential by the law firm and that any information provided should be limited. The website also indicates that there is no guarantee that representation will be accepted.

The inquirer then asks this Committee to assume that the website "solicits" inquiries and also that a website visitor has submitted a legal inquiry providing detailed facts about a potential employment discrimination claim against an employer that happens to be a current client of the law firm. The inquirer then asks:
• What duty of confidentiality is owed to the website visitor contacting the law firm?
• What duty is owed to the current client?
• What conflict of interest issues are raised by this potential situation?
• Can the law firm act as defense counsel for the current client regarding the claims made by the website visitor?
• How can the firm protect its ability to represent its clients while still advertising online?
• What if the inquiry is unsolicited?

Conflict rules involved

1.6, 1.7, 1.8, 1.9, 1.18 (proposed). Also, any advertising that a law firm does must comply with the rules for advertising under RPC Title 7.

Background

The state of the law on this issue is currently in flux. The application of existing rules to the issues presented is murky. Guidance from other sources is instructive but untested under the laws of the state of Washington. Proposed amendments would provide additional guidance.

The Washington Supreme Court recently published for comments several new changes to the Rules of Professional Conduct. Among those changes is proposed RPC 1.18, Duties to Prospective Clients. We have reason to believe that the new rule and the corresponding comments will be adopted as submitted. However, the proposed RPC is not in effect at this time.

Duty to prospective clients

It is the opinion of this Committee that even without adoption of proposed RPC 1.18, lawyers owe a duty to prospective clients. Proposed RPC 1.18 makes that duty more clear. Additionally, even though Washington State does not have a prospective client rule in effect, the ABA Model Rules Committee adopted 1.18 in 2002 to clarify its belief that a duty is owed to prospective clients. The ABA Model Rules are instructive to Washington lawyers when Washington law does not squarely deal with a similar issue.

Current RPCs 1.6 and 1.9 regarding former clients discuss the lawyer`s duties and the circumstances under which a lawyer may breach confidentiality. RPC 1.9, the Former Client rule, does not allow (a) subsequent representations adverse to the former client in the same or in a substantially related matter unless informed consent is obtained or (b) the lawyer to use confidences or secrets relating to the representation to the disadvantage of the former client except as provided by RPC 1.6.

Under Informal Opinion 1411 (1991); a previous RPC Committee opined that:

"the attorney-client relationship exists when a reasonable client believes that there is such a relationship. The Committee has previously determined that information obtained during an initial interview with a prospective client would rise to the level of secrets or confidences and that that information could not be disclosed by the lawyer except in compliance with RPC 1.6.
If an individual interviewed a firm for purposes of representation and the lawyer or law firm were not retained, it would be a conflict of interest for the lawyer or a member of the law firm to subsequently undertake to represent a third party in a matter adverse to the original prospective client in a related matter or in a matter involving confidences or secrets of the prospective client. The Committee is of the opinion that RPC 1.9 would apply in such a situation." Wash. Informal Op. 1411.

Similarly, the ABA holds that:

"A duty to maintain the confidentiality of information relating to the prospective representation may arise under Rule 1.6 even though the lawyer performs no legal services for the would-be client and declines the representation. . . .
The legal basis for a lawyer`s duty of confidentiality is derived from the law of agency and the law of evidence. See Rule 1.6, Comment. Under the law of agency, the agent ordinarily is prohibited from disclosing or using information revealed by the principal in confidence in connection with the agency relationship. Restatement (Second) of Agency §395 (1957). The obligation continues after the agency relationship has been concluded. Restatement (Second) of Agency §396 (1957). The attorney-client evidentiary privilege protects certain communications from the client against disclosure in judicial proceedings absent a waiver of the privilege or client consent. The privilege ordinarily attaches to communications when made to the lawyer by a prospective client for the purpose of securing legal advice or assistance even though the representation subsequently is declined." ABA Ethics Op. 90-358.

These rules also find expression in model Rule 1.8(b), which prohibits the use of information relating to the representation to the disadvantage of a current client, and in Model Rule 1.9(c), which prohibits the use of information relating to the representation to the disadvantage of a former client except when the information has become generally known. Id.

Proposed RPC 1.18 can actually be used to limit a lawyer`s responsibilities under the rules to a certain extent. Proposed 1.18 defines "prospective client" as "[a] person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter." (However, it does not change the existing case law defining when a client-lawyer relationship is formed. Proposed RPC 1.18 Wash. cmt. 10 (citing, Bohn v. Cody, 119 Wn.2d 357, 363, 832 P.2d 71 (1992); In re McGlothen, 99 Wn.2d 515, 522, 663 P.2d 1330 (1983))). Further, proposed RPC 1.18 limits the prohibition on subsequent adverse representations to instances where the subsequent representation would be" significantly harmful to that person in the matter, except as provided in paragraphs (d) or (e)." Proposed RPC 1.18 (emphasis added).

Subsections (d) and (e) allow for subsequent representation, even if the subsequent representation will be significantly harmful, so long as informed consent is obtained, the lawyer took reasonable measures to avoid exposure to the prospective client`s information and implemented a screen/notice, or the lawyer obtained consent from the prospective client through proper disclosures before the information was obtained.

Specific facts of this case

In this case, the inquirer provides a hypothetical regarding a proposed client who is an employee of a current firm client, and the employee is considering a suit against his employer.

Knowledge of the suit may be important under the circumstances provided in this scenario. ABA Opinion 90-358 discusses a situation in which even limited information (such as the names of the interested parties or the subject of the suit) may be of significance to the representation of the existing client. Additionally, the Washington RPC committee addressed a similar question in 1998 Informal Opinion 1835. The inquirer in that matter wanted to know what obligations a lawyer had when a prospective client phoned him/her and alleged that an existing firm estate planning client may be the subject of a contemplated paternity action.

"It is the opinion of the committee that you are precluded by RPC 1.6(a) from disclosure of the paternity allegation. You must also decline representation of the potential paternity action client under RPC 1.7(a). Finally, you may continue to represent the estate planning client provided you decline further representation of the other potential client." Wash. Informal Op. 1835.

If that analysis was applied to this matter, the potential discrimination suit against the firm`s employer client could not be disclosed, and the firm could not represent the employee against the employer in the upcoming suit. Provided the employee did not become a client, the firm could continue to represent the employer in ongoing and in other unrelated matters.

According to the ABA Opn. 90-358, if, as indicated in the scenario above, the true secret is that there is a possibility of an employment case being filed, all of the confidential information should become "known" once the suit is filed. Under those circumstances, there should be no conflict with representing the employer adverse to the employee (unless further confidences affecting the case were divulged in the initial inquiry).

"Unless the would-be client is represented by the lawyer in other ongoing matters, however, the Model Rules do not prohibit the use to the disadvantage of the would-be client of information relating to the representation once the information becomes generally known." ABA Ethics Op. 90-358.

Under the current rules, if a reasonable expectation of confidentiality was created for the prospective client, the subsequent representation of the employer in the suit against the prospective client would be the same or a substantially related matter under RPC 1.9, and it could not be undertaken without informed consent. Under proposed 1.18, the subsequent representation of the employer against the employee could be undertaken unless the knowledge gained would be significantly harmful to the prospective client. In the event that it would be significantly harmful, the law firm can still undertake the subsequent representation if it receives the prospective client`s informed consent, if it implements a screen (with required notice and a screen preventing subsequent sharing of fees), or if adequate disclosures/disclaimers prevent the prospective client from believing that a client-lawyer relationship was being formed (disclosures informing the client that all information provided could be used against the prospective client).

Duty to current client / Can the firm still represent the current client (in unrelated/related matters)?

So long as the matter is not substantially related and no confidences and/or secrets are used to the disadvantage of the prospective client (RPC 1.9), the subsequent adverse representation is not prohibited.

The rules also require compliance with RPC 1.7 for current clients – meaning that representation of the existing client can only proceed if the lawyer`s representation of that client will not be materially limited by the lawyer`s responsibilities to another client or to a third person.

"The principal inquiry under Rule 1.7(b) is whether, as a result of the lawyer`s duty to protect the information relating to the representation of the would-be client, the lawyer`s representation of the existing client may be materially limited. Even if the lawyer reasonably believes that the representation of the existing client would not be adversely affected by a material limitation (such that the existing client`s consent to the representation after consultation would permit the lawyer to represent the client), revelation of sufficient information for the existing client to appreciate the significance of the limitation on the representation ordinarily would require the lawyer to divulge information relating to the would-be client`s representation. Since such a revelation can be made under Rule 1.6 only after consulting with the would-be client (which ordinarily also would be foreclosed), the lawyer in the typical case cannot practicably obtain the requisite consents to continue representing the existing client." ABA Ethics Op. 90-358.

If the work is not substantially related, and the lawyer is not materially limited by the information obtained from the prospective client, the representation may continue. If the representation may be limited, the lawyer can make a full disclosure (if doing so will not violate the confidences or secrets of the prospective client) and receive informed written consent from the current client to continue the representation. Otherwise, the lawyer must withdraw.

Solicited vs. unsolicited

Interestingly, Washington proposed RPC 1.18 differs from the ABA Model Rules in a number of respects, one of which is a clear differentiation between solicited and unsolicited information.

"Not all persons who communicate information to a lawyer are entitled to protection under this Rule. A person who communicates information unilaterally to a lawyer, without any reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship, is not a "prospective client" within the meaning of paragraph (a). See also Washington Comment [10]." Proposed RPC 1.18 Wash. Cmt. 2.

"Unilateral communications from individuals seeking legal services do not generally create a relationship covered by this Rule, unless the lawyer invites unilateral confidential communications. The public dissemination of general information concerning a lawyer`s name or firm name, practice area and types of clients served, and contact information, is not in itself, an invitation to convey unilateral confidential communications nor does it create a reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship." Proposed RPC 1.18 Wash. Cmt. 10.

Since proposed 1.18 is not currently the law in Washington, the law firm should look, in light of all the facts, to see whether the prospective client has a reasonable expectation that a lawyer-client relationship has been formed or whether his/her comments will be treated confidentially. It is instructive that Washington legal experts, in drafting proposed 1.18, have determined that general information (of the kind provided in the hypothetical by the inquirer) is not enough to create a reasonable expectation that a relationship has been formed.

However, if we suppose, as the inquirer has requested, that information has been solicited from the prospective client, then that information must be kept confidential, unless specific and understandable disclaimers are also posted that would negate the prospective client`s expectations.

What can the law firm do to protect itself?

There are a number of things that a law firm can do to help protect itself (none will guarantee avoidance of an unresolvable conflict, but all will help minimize the risk or the resultant effect of inadvertently obtained confidential information).

(1) Identify conflicts of interest before undertaking representation. ABA Ethics Op. 90-358.

(2) Do not solicit communication from prospective clients, especially over a website, email, or other communication that allows the prospective client to divulge an excessive amount of information. Washington Comment 10 provides that "[U]nilateral communications from individuals seeking legal services do not generally create a relationship covered by [1.18], unless the lawyer invites unilateral confidential communications." Proposed RPC 1.18 cmt. 10.

(3) Limit the amount of information you accept to the bare essentials needed to perform a conflict check. Proposed 1.18(d)(2) cmt. 4.
A California ethics opinion provides a good example,

"Another way in which Law Firm could have proceeded that would have avoided the confidentiality issue entirely would have been to request from website visitors only that information that would allow the firm to perform a conflict check."

The California board was not dealing with a matter where the mere knowledge of the parties` names could create a conflict (since the husband had already consulted the law firm for a divorce from his wife – knowledge that the wife was seeking legal help in the divorce was not new, secret information).

The language used should be easily understood by a lay person. A disclaimer stating that the lawyer and prospective client would not be forming a "confidential relationship" did not go far enough. Cal. Formal Op. Interim No. 03-0001.

"Lawyer`s use of a disclaimer in non-Internet setting that stated `I understand that my initial interview with this attorney does not create an attorney/client relationship and that no such relationship is formed unless I actually retain this attorney" is not effective in preventing the lawyer from incurring duty of confidentiality to prospective client." Id. (citing Va. Bar Ethics Op. 1794 (June 30, 2004)).

The California committee stated that, "had Wife agreed to the following, she would have had, in our opinion, no reasonable expectation of confidentiality with Law Firm: `I understand and agree that Law Firm will have no duty to keep confidential the information I am now transmitting to Law Firm.`" Id.

The committee suggests that the law firm provide even stronger disclaimers (for example, that information obtained may be used adversely or that a waiver may be limited depending on the circumstances).

(4) Implement a timely screen for any individual who received confidential information so as to avoid imputed disqualification. Proposed RPC 1.18 (2)(i), cmts. 7, 8. There are additional requirements such as notice and restriction to the sharing of fees. ABA 1.18 (Model Rules); ABA Ethics Op. 90-358.

(5) Condition conversations with prospective clients, and obtain informed consent prior to disclosures, that information provided during the preliminary (hopefully restricted) consultation will not prohibit the lawyer from representing a different client in the same or a substantially related matter. Obtain prospective consent to subsequent use of the information received. Proposed RPC 1.18 (e); ABA Ethics Op. 90-358.

(6) Use conspicuous and easily understood disclaimers, including, where appropriate, disclaimers that the inquirers must click on to show their approval of the terms.

The California opinion cites D.C. Ethics Opinion 302: "[p]roviding tentative `best practices` guidance on attorney communications over the Internet to avoid formation of attorney-client relationships, including the use of prominent `click through` disclaimers)[.]) We note that by suggesting a means for lawyers to avoid inadvertently taking on a duty of confidentiality to website visitors, we do not mean to suggest that this methodology is the only means for doing so."

(7) Implement procedures by which non-lawyer staff receive and review inquiries to screen for conflicts.