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 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.
See a sample Non-engagement Letter (or Non-retainer letter).
The CBA Conflicts Toolkit includes a checklist to avoiding phantom clients. You will have to login to the CBA website to view this resource.
Commentary in the Code clarifies that an express retainer or remuneration is not required for a lawyer-client relationship to arise. A lawyer may meet with a prospective client and receive confidential information. Often no lawyer-client relationship is officially established and the lawyer does not represent the prospective client after the initial meeting or consultation. The lawyer may nonetheless have a disqualifying conflict of interest that prevents him or her 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 the manner in which a firm must manage prospective clients. First, only take enough information to carry out a conflict check. If there is a conflict, you cannot speak to the prospective client at all and must not disclose that the client even approached the firm. You may, however, be able to speak with the prospective client in the event of a conflict if you receive consent from your existing client. If you speak to the prospective client and receive confidential information, and then you are not retained, you should send a non-engagement (non-retainer) letter to the prospective client, advising that you are not representing the individual.
The firm may still be retained by an opposing party, but only if certain conditions are met. The lawyer who initially met with the prospective client 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 potential 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 a lawyer may owe duties of confidentiality to them in certain cases. Often lawyers 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 a lawyer or law firm has disqualifying confidential information that prevents it from acting against them.