It may sound odd, but always ask yourself “Who is my client?” Clarifying
who you represent (and conversely, who you do not represent) is an important
part of establishing a retainer and it also helps you manage conflicts.
The Code of Conduct defines a client broadly in
Rule 1.1-1 as follows:
"client” includes a client
of a lawyer’s firm, whether or not the lawyer handles the client’s work, and
may include a person who reasonably believes that a lawyer-client relationship
exists, whether or not that is the case at law.
As a practical matter, you should never allow non-clients to have the
mistaken impression that you are protecting their interests and that they have
become your client when they are not. Whenever possible and appropriate,
provide a non-engagement letter to prospective clients or non-clients. See the
module on Retainers and the sample
non-retainer letter in Lesson 4 of that Module: Non-engagement Letter (or Non-retainer letter).
Commentary in the Code clarifies that an express retainer or
remuneration is not required for a lawyer-client relationship to arise. You may
meet with a prospective client and receive confidential information. Often no
lawyer-client relationship is officially established and you do not end up representing
the prospective client after the initial meeting or consultation. You may
nonetheless have a disqualifying conflict of interest that prevents you from
later acting against the prospective client, simply as a result of receiving
confidential information about the individual.
For example, a wife in a divorce matter contacts you for advice. She
provides you with information about the issues she is having with her husband
but does not retain you. The husband then contacts your firm. As a
general rule, neither you nor other members of your firm can act for the
husband against the wife, as she has imparted confidential information to you
that will be protected by the courts, if need be, on a disqualification motion.
It does not matter whether you opened a file or whether you recall the details
of the discussion. There is, however, an appropriate way to manage contacts
from prospective clients, covered under the next heading.
Prospective Clients
Commentary to Rule 3.4-6, in paragraphs [5] through [7], deals with prospective
clients who disclose information for the purpose of retaining your services.
First, you should only take enough information to carry out a conflict check.
If there is a conflict, you must decline the representation and refuse to
receive further information. You cannot disclose information provided by the
prospective client, including the fact that they sought to retain you. If you
speak to the prospective client and receive confidential information but are
not retained, you should send a non-engagement (non-retainer) letter to the
prospective client, advising that you are not representing the individual.
Your firm may still be retained by an opposing party but
only if certain conditions are met. If you initially met with the prospective
client, you may not act against that person, though other firm members
may. The firm must also ensure that confidential information is not
disclosed to other firm members. The fact that you were approached by the prospective
client must not be disclosed to the members of the firm who may be acting
against the prospective client. The measures taken to protect confidentiality
will vary but may include the destruction or sealing of any file materials,
returning the file materials, or password protecting computer files.
“Near Clients”
Courts will also protect the interests of “near clients”. “Near
clients” are related to the actual client and you may owe duties of
confidentiality to them in certain cases. You may obtain confidential
information about “near clients” in the course of the representation of the
actual client. “Near clients”, however, face a very high burden to demonstrate
that you have disqualifying confidential information that prevents you from
acting against them.