Lawyer Owes Ethics Duty to Non-Client
Hat tip to the blog The Ethical Quandary for pointing out this potential ethical pitfall. The D.C. Bar Legal Ethics Committee has issued an opinion finding that a lawyer owes a duty to maintain the confidences of someone who never hired him and never spoke to him. Here is the scenario as set out in the opinion:
A would-be client comes to Lawyer A to speak with her about taking on his case. After listening to the prospective client’s story, Lawyer A determines that she is not in a position to be of assistance. However, Lawyer A believes that a different lawyer would be better suited to meet the prospective client’s needs. Lawyer A asks the prospective client whether he would like her to call Lawyer B on his behalf to discuss the possibility of Lawyer B taking on the representation, and the prospective client says “yes.” Lawyer A calls Lawyer B, who works at a different firm, and explains the person’s predicament. After hearing the story from Lawyer A, Lawyer B determines that he has a conflict of interest and cannot represent the person.
Based on those facts, the question for the ethics committee was whether Lawyer B had a duty to safeguard the client information relayed by Lawyer A. Here is how the bar answered:
When a prospective client consents to having a lawyer speak to a second lawyer on his behalf regarding the possibility of establishing an attorney-client relationship, the second lawyer has an obligation under Rules 1.6 and 1.18 to treat the communication as confidential, even if the second lawyer never speaks directly with the prospective client.
Given the importance of maintaining confidentiality of any information received by the first lawyer, it is advisable that the first lawyer disclose at the outset of the conversation with the second lawyer that the purpose of the discussion is to consider taking on a new case for someone, and to limit initial disclosures to the essential facts until it can be determined whether the second lawyer has a conflict of interest.
The decision is based on D.C. rules that track the ABA model rules. So next time a colleague calls to ask about a potential referral, consider the implications of this opinion.
Posted by Robert J. Ambrogi on April 20, 2009 at 10:59 AM | Permalink
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