Lawyer Who Never Talks to a Client Still May Owe Duty of Confidentiality

April 16th, 2009 | By EQTeam

A Hinshaw Lawyers for the Profession® Alert

D.C. Bar Association Ethics Opinion 346 (2009)

Brief Summary

A lawyer who receives a prospective client’s confidences, as well as permission to talk about the matter with other lawyers not in the same firm, is an agent of the client when talking to the other lawyers. The other lawyers therefore owe the prospective client a duty of confidentiality.

Complete Summary

The question presented was, when Lawyer A — with the permission of a prospective client — discusses the prospective client’s matter with Lawyer B from a different firm, does Lawyer B owe a duty of confidentially to the prospective client? The D.C. Bar Legal Ethics Committee opined that Lawyer B owes a duty of confidentiality under either Rule 1.6 (confidentiality of information) or Rule 1.18 (duties to prospective clients).

Rule 1.18 imposes a duty of confidentiality on lawyers who “ha[ve] had discussions with a prospective client[.]” The committee, however, found that a discussion of Rule 1.18 was not strictly necessary because Lawyer B would owe a duty of confidentiality under Rule 1.6 standing alone. According to Comment [9] of Rule 1.6, the duty attaches when a lawyer “agrees to consider whether a client-lawyer relationship shall be established.”

Alternatively, under the “discussion” requirement of Rule 1.18, Lawyer B would owe a duty of confidentiality because Lawyer A was the prospective client’s agent. In reaching this conclusion, the committee invoked an attorney-client privilege analogy, noting that privilege generally attaches to discussions between lawyers and clients agents so long as the client trusts the agent and the use of an agent is reasonably necessary. The committee opined that this “intermediary rule” should apply here as well.

Significance of Opinion

This opinion adds a level of protection to client confidences, but it also adds a potential level of complexity or liability for lawyers in referral situations.

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