Conflicts and the prospective client

Issue April 2003 By Roger Geller and Susan Strauss Weisberg

We had an inquiry recently from a lawyer who offers free half-hour consultations as part of a marketing plan to attract new business. The lawyer's practice is to make notes during the consultations, keep her notes for six months and then throw them out unless she is retained. The lawyer keeps no other records of the consultations.

The lawyer's inquiry was prompted by a request from opposing counsel that she withdraw from representing a wife in a divorce case due to conflict of interest. It turns out that the client's husband had met with the lawyer 10 months earlier for a free consultation. According to the husband, he had confided details about the marriage to the lawyer and received advice about the division of marital assets in a divorce. There were no communications between the husband and the lawyer after the consultation. The lawyer now has no documentation of the encounter and says that she does not remember her conversation with the husband. Does the lawyer have to withdraw from representing the wife because of the prior consultation with the husband?

Although the American Bar Association now has a model rule expressly addressing the obligations of a lawyer to prospective clients, Model Rule 1.18, that model rule has not been adopted in Massachusetts. In our jurisdiction, the critical question is whether the consultation created an attorney-client relationship between the lawyer and the husband. The answer depends on the nature, scope and timing of the encounter and, in particular, on whether the prospective client revealed confidential information related to the proposed representation. Bays v. Theran, 418 Mass. 685 (1994).

In Bays v. Theran, a plaintiff in an ongoing lawsuit had a few telephone consultations with a lawyer about possible representation. They discussed the merits of the case, and the lawyer gave some basic advice. Two months later, other attorneys in the lawyer's firm entered appearances for the defendants, and the plaintiff moved to disqualify them. The trial judge found that the lawyer had formed an attorney-client relationship with the plaintiff and, as a result, that the entire firm was disqualified from representing the defendants.

The Supreme Judicial Court affirmed, holding that an attorney-client relationship may be established through preliminary consultations, even though the lawyer is never retained and receives no fee, where a prospective client consults a lawyer with a view to possible representation, believes the consultation is confidential and transmits some confidential information related to the proposed representation. Moreover, the court ruled that the transmission of confidential information may be inferred from the nature and extent of the communications without proof of the specific content. Contrast Mailer v. Mailer, 390 Mass. 371 (1983) (denial of wife's motion to disqualify husband's divorce lawyer upheld where wife had consulted lawyer five years earlier and no findings that wife had transmitted protected information); compare DeLoury v. DeLoury, 22 Mass. App. Ct. 611 (1986) (disqualification of husband's divorce lawyer upheld where lawyer had previously been consulted by wife, who conveyed protected information in expectation of confidentiality, and lawyer had performed and billed for preliminary services).

Mass. R. Prof. C., 1.9(a), the Massachusetts rule on successive representation, provides: "A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents after consultation."

In the case of the inquiring lawyer, the interests of the opposing spouses are obviously adverse, and the divorce is the same matter about which the husband had previously consulted the lawyer. The remaining issue is whether the initial consultation created an attorney-client relationship between the lawyer and the husband. If so, the lawyer will be considered to have represented the husband as a former "client" for purposes of invoking the prohibitions of Rule 1.9(a). See 1 G. Hazard & W. Hodes, The Art of Lawyering ß 9.18 (2001 & Supp. 2003).
In bar counsel's view, the inquiring lawyer must withdraw if the husband consulted the lawyer about possible representation in the divorce, conveyed some substantive information related to the divorce and had a good-faith expectation in the confidentiality of the consultation. In that event, the transmission of confidential communications may be inferred for purposes of establishing an attorney-client relationship between the husband and the lawyer under Rule 1.9(a).

Because the purpose of the rule is to prevent even the possibility of leaked confidences or divided loyalty, the husband need not reveal the specific information communicated or show that the lawyer has actually used any confidential information to his detriment. See Bays v. Theran, supra at 693; G. Hazard & W. Hodes, supra. The lawyer, having no records or memory of the encounter, will be hard pressed to counter the husband's assertions. Any doubts must be resolved against the lawyer's continued representation of the wife. Mailer v. Mailer, supra at 375.

If the lawyer has to withdraw, she cannot avoid the conflict by passing the wife's case to another member of her firm, even if the firm tries to "screen" the lawyer from further participation. Mass. R. Prof. C. 1.10(a) prohibits all lawyers in a firm from representing a client when any one of them, practicing alone, would be prohibited from doing so. "Screening" would not afford adequate protection of the husband's confidences or the public's confidence in the integrity of the lawyer-client relationship. See Bays v. Theran, supra at 94.

What can the lawyer do to avoid similar problems in the future? First, she needs an adequate system for detecting conflicts with permanent records identifying each person who consults the lawyer or others in her firm, the subject matter of the consultation and the potential adverse parties. At the outset of every consultation, the lawyer must limit the potential client's disclosures to information sufficient for a conflicts check before there is any substantive discussion.

The lawyer must also safeguard the confidential information imparted during preliminary consultations and retain her consultation notes in the same manner as she maintains her client files. These obligations exist independent of any questions about subsequent adverse representation. The requirements of Mass. R. Prof. C. 1.6, governing the protection of confidential client information, apply equally to prospective clients even if the consultation never leads to a retainer. See Mass. R. Prof. C., Scope [3]; G. Hazard & W. Hodes, supra, ß 13.9. The same is true of Mass. R. Prof. C. 1.9(c), prohibiting lawyers from revealing or misusing confidential information from representation of a former client.

For guidelines on how long to retain the consultation notes, see "Talking Trash Recycled: Disposing of Closed Client Files" in the articles section of bar counsel's Web site ( As a practical matter, the lawyer's notes could help her demonstrate that no confidential information was obtained if such was the case.

The lawyer could try to limit the initial consultations to general discussions of legal issues without giving any advice or receiving any protected information. That limitation will be ineffective if the potential client volunteers protected information despite the lawyer's disclaimers.

The lawyer also may try to condition the consultation on the prospective client's agreement that no information disclosed would preclude her from representing someone else in the same or a related matter. See ABA/BNA Lawyers' Manual on Professional Conduct ß 31:154 (2002). Such advance waivers of confidentiality or conflicts are difficult to obtain by informed consent. Moreover, potential clients may well be understandably reluctant to confide in a lawyer when they know that she may later represent their adversaries. The burden would be on the lawyer to establish that the potential client had no reasonable expectation of confidentiality when the information was communicated and was fully informed of the consequences of the waiver. Compare Matter of Eisenhauer, 426 Mass. 448 (1998) (lawyer bears burden of proving informed consent to conflict).

Similar questions have arisen about the obligations of attorneys participating in "lawyer for a day" programs in probate, housing or other courts. The Boston Bar Association's Ethics Committee has concluded that a lawyer's participation in such a program ordinarily creates an attorney-client relationship that begins and ends on the same day, making the person assisted a former client for purposes of Rule 1.9(a). BBA Ethics Opinion 2001-B. As in the case of prospective private clients, advance conflicts waivers as a condition of participation are not necessarily effective because it is difficult to predict the impact of the waiver. See "Ethics Ruling Establishes Lawyer for Day Guidelines," 29 MLW 2577 (7/23/01).

Finally, if the adversary of someone who participated in a consultation subsequently asks to retain the lawyer, she could seek the participant's consent to the new representation at that time. Comment [12] to Rule 1.9(a) notes that the prohibitions on successive representation are for the protection of former clients (or potential clients, in this case) and can be waived by them, but only upon disclosure of all relevant circumstances. If disclosure of confidential information about the new client were required in order to get a waiver from the former potential client, then the lawyer would have to get the new client's informed consent to the disclosure under Rule 1.6.
As a marketing tool, free consultations sound like a good idea. They must be carefully thought out and implemented, however, to avoid ethical pitfalls like these.