How has the ABA recently responded to the question of what confidentiality protection is owed a prospective client?
What will be an ideal response?
Having noticed the dilemma of what confidentiality duty, if any, is owed someone who,
when talking with an attorney is not yet (or perhaps ever) a client, the Ethics 2000
Committee drafted a new rule, 1.18, which was adopted by the ABA House of Delegates.
Essentially, Rule 1.18 defines a prospective client as someone who discusses the possibility
of hiring the lawyer, and then it establishes what level of protection the lawyer owes the
prospective client. (The duties owed to a former client are discussed in Chapter 5.) By
putting the prospective client in the protective zone with the former client, this new rule
guarantees a certain level of confidentiality to someone who contacts an attorney (or his or
her paralegal) with the purpose of seeking legal help or hiring the attorney. Granting
confidentiality to an initial consultation, for example, is only logical, because without it,
prospective clients are caught in a Catch-22 where they could only be granted confidentiality
if they first hired the lawyers who have yet to hear a word of the clients’ problems, some of
which will not require a lawyer to be hired.
Although the rule cannot describe every context in which someone might become a
prospective client, the rule’s second Comment acknowledges that MR 1.18 does not cover
someone who unilaterally communicates with a lawyer (e.g., leaving a voice mail or sending
an email to a lawyer) without knowing if the lawyer is considering representing the person.
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