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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Arizona Legal Ethics

1.18   Rule 1.18 Duties to Prospective Clients

1.18:100   Comparative Analysis of Arizona Rule

  • Primary Arizona References: AZ-ER 1.18
  • Background References: ABA Model Rule 1.18, Other Jurisdictions
  • Commentary:

    MR 1.18 was added in February 2002. The Reporter's explanation of the change reads as follows:

    Rule 1.18 is a proposed new Rule in response to the Commission's concern that important events occur in the period during which a lawyer and prospective client are considering whether to form a client-lawyer relationship. For the most part, the current Model Rules do not address that pre-retention period.

    1.18:101      Model Rule Comparison

    AZ-ER 1.18 is a new Rule, added to the Arizona Rules of Professional Conduct by the 2003 amendments.

    There are some differences between AZ-ER 1.18 and MR 1.18. Paragraph (b) of AZ-ER 1.18 incorporates the restrictions of AZ-ER 1.6 in addition to those of AZ-ER 1.9, while MR 1.18 does not. The structure and language of AZ-ER 1.18(d) are different from MR 1.18(d), and it is not limited to situations where a lawyer has learned ²disqualifying information" from a prospective client.

    These differences between the Rules are also reflected in the accompanying Comments. In addition, the last sentence of paragraph 2, paragraph 4 and the last sentence of paragraph 9 of the Comment to AZ-ER 1.18 do not appear in the Comment to MR 1.18.

    1.18:200   Definition of "Prospective Client"

    Paragraph (a) of new AZ-ER 1.18, which now defines a lawyer­s duties to prospective clients defines a ²prospective client" as a ²person who discusses with a lawyer the possibility of forming a client-lawyer relationship . . ." The notion that a lawyer may owe certain duties to persons who consult with, but do not eventually retain, that lawyer, while now codified in this Rule, is not a novel proposition under Arizona law.

    The Arizona courts have long recognized that an attorney-client relationship can arise as a consequence of an initial consultation between a lawyer and a prospective client. Foulke v. Knuck, 162 Ariz. 517, 784 P.2d 723 (App. 1989). In that case, the Court of Appeals stated that an attorney-client relationship arose between a lawyer and a prospective client during an initial consultation, even though the lawyer did not represent the client in the subsequent dissolution proceedings. The Court held that the ²fact that a consultation is relatively brief does not negate the establishment of an attorney-client relationship." Id., 162 Ariz. at 520, 784 P.2d at 726. See also Arizona Ethics Opinion No. 74-10.

    In Foulke, the lawyer argued that an attorney-client relationship had not been formed, because the lawyer had only provided the prospective client with legal information, as distinguished from legal advice. The Court rejected that contention, stating: ²[w]hether one seeks legal information or legal advice from an attorney, the attorney is being consulted for his or her professional, legal expertise." Foulke v. Knuck, supra, 162 Ariz. at 520, 784 P.2d at 726. Similarly, in State v. Fodor, 179 Ariz. 442, 880 P.2d 662 (App. 1994), the Court of Appeals held that a woman who telephoned a lawyer for the purpose of securing legal advice had established an attorney-client relationship with the lawyer such that the contents of the telephone conversation between them was privileged. Id., 179 Ariz. at 448, 880 P.2d at 668.

    The Rule does not apply to each and every person who contacts a lawyer with respect to a potential legal matter. The Comment to the Rule makes clear that its protections do not apply to persons who communicate with lawyers unilaterally and without a reasonable expectation of confidentiality, or to those whose purpose in contacting a lawyer is other than to explore the possibility of representation:

    Not all persons who communicate information to a lawyer are entitled to protection under this Rule. A person who communicates information unilaterally to a lawyer is not a ²prospective client" within the meaning of paragraph (a) and, therefore, the information does not subject the lawyer to disqualification under this Rule. Lawyers should employ reasonable measures to alert prospective clients that a) they should not convey information about a legal matter unilaterally to the lawyer and b) unilateral communications may not be kept confidential.

    * * * * *

    Any information obtained from a prospective client who consults the lawyer in an attempt to disqualify the lawyer or makes contact for some purpose other than seeking representation is not information relating to representation and disclosure is not prohibited.

    Comment, AZ-ER 1.18, öö 2, 4.

    1.18:300   Confidentiality of Communications with a Prospective Client

    New AZ-ER 1.18 recognizes that attorneys regularly communicate with prospective clients, and those communications do not always result in the formation of a formal attorney-client relationship. The Rule imposes on lawyers a duty to preserve confidences imparted to a lawyer by a prospective client, regardless whether the lawyer or the lawyer­s firm undertakes the prospective client­s representation. Thus, AZ-ER 1.18(b) provides that: ²Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation, except as ER 1.6 would permit and ER 1.9 would permit with respect to information of a former client." In addition, as discussed in the succeeding Section, that lawyer is also disqualified from representing ²a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter . . ." AZ-ER 1.18(c).

    As noted earlier, these restrictions do not apply to information which is communicated to a lawyer unilaterally or as part of an effort to disqualify the lawyer from representing an adverse party in a matter. Lawyers are advised to employ measures to warn prospective clients that they should not unilaterally communicate information to the lawyer and that such unilateral communications may not be kept in confidence. Comment, AZ-ER 1.18, ö 2.

    In that regard, the Rule is consistent with Arizona Ethics Opinion No. 02-04, in which the Committee on the Rules of Professional Conduct (²the Committee") held that an attorney who received an unsolicited e-mail message concerning legal services did not, under the circumstances presented, owe a duty of confidentiality to the sender, because the sender did not have a reasonable expectation of confidentiality with respect to the communication. The sender was a disgruntled employee of a corporation who, through research on the Internet, located the names and e-mail addresses of 11 lawyers who practiced employment law, and sent each of them a message stating his intention to sue his employer and attaching correspondence with the employer. Unfortunately, one of the recipients of the message was counsel to the corporation involved, and that lawyer asked the Committee whether the message and attachment could be shared with the corporate client.

    The Committee concluded that the message and attachment could be shared with the inquiring lawyer­s client. The Committee cautioned, however, that there may be circumstances where a lawyer does owe a duty of confidentiality with respect to information communicated by prospective clients. That duty was not implicated here, however, because of the number of lawyers to whom the message had been sent. The Committee warned, however, that such an expectation of confidentiality, and corresponding obligation to honor it, might arise where a lawyer or law firm maintains a Web site which does not contain express limitations concerning the formation of attorney-client relationships, or disclaimers specifying that information transmitted through the site will not be accorded confidential treatment.

    The Comment to the Rule also suggests some additional precautions or preventative measures that lawyers may permissibly take in order to avoid assuming duties to preserve the confidences of prospective clients and/or disqualification:

    In order to avoid acquiring disqualifying information from a prospective client, a lawyer considering whether or not to undertake a new matter should limit the initial interview to only such information as reasonably appears necessary for that purpose. Where the information indicates that a conflict of interest or other reason for non-representation exists, the lawyer should so inform the prospective client or decline the representation. If the prospective client wishes to retain the lawyer, and if consent is possible under ER 1.7, then consent from all affected present or former clients must be obtained before accepting the representation.

    A lawyer may condition conversations with a prospective client on the person­s informed consent that no information disclosed during the consultation will prohibit the lawyer from representing a different client in the matter. See ER 1.0(e) for the definition of informed consent. If the agreement expressly so provides, the prospective client may also consent to the lawyer­s subsequent use of information received from the prospective client.

    Comment, AZ-ER 1.18, öö 5, 6.

    1.18:400   Conflicts of Interest Arising Out of Communications with a Prospective Client

    1.18:410      Conflict with an Existing Client

    Paragraph (c) of the Rule provides that: ²A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in that matter, except as provided in paragraph (d)." That disqualification will be imputed to all lawyers in the affected lawyer­s firm, as well, unless the screening procedures authorized by paragraph (d), discussed below, are implemented.

    This test for disqualification appears modeled on that applicable to representing clients whose interests are adverse to a lawyer­s former clients, but is considerably more lenient. Not only must the matter be the same or substantially related to the matter concerning which the lawyer was consulted by the prospective client, but the lawyer must also have ²received information from the prospective client that could be significantly harmful to that person in the matter . . ." As the Comment to this aspect of the Rule explains:

    Even in the absence of an agreement, under paragraph (c), the lawyer is not prohibited from representing a client with interests adverse to those of the prospective client in the same or a substantially related matter unless the lawyer has received from the prospective client information that could be significantly harmful if used against the prospective client in the matter.

    Comment, AZ-ER 1.18, ö 7.

    1.18:420      Consent of Prospective Client to an Existing Conflict of Interest

    If the conditions contemplated by paragraph (c) are present, the only way that the affected lawyer can avoid personal (or imputed) disqualification is to secure the informed consent, confirmed in writing, of all affected clients, including the prospective client.

    1.18:430      Screening to Cure an Imputed Conflict of Interest

    Even absent such consent, the imputed disqualification of other lawyers in the firm can be avoided, under paragraph (d) of the Rule, if (1) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom, and (2) written notice is promptly given to the prospective client. ²Screened" is defined in AZ-ER 1.0(k) as denoting ²the isolation of a lawyer from any participation in a matter through the timely imposition of procedures within a firm that are reasonably adequate under the circumstances to protect information that the isolated lawyer is obligated to protect under these Rules or other law." As the Comment to paragraph (d) explains:

    Under paragraph (c), the prohibition in this Rule is imputed to other lawyers as provided in ER 1.10, but, under paragraph (d), imputation may be avoided if the lawyer obtains the informed consent, confirmed in writing, of both the prospective and affected clients. In the alternative, imputation may be avoided if all disqualified lawyers are timely screened and written notice is promptly given to the prospective client. See ER 1.0(k) (requirements for screening procedures). Paragraph (d)(1) does not prohibit the screened lawyer from receiving a salary or partnership share established by prior independent agreement, but that lawyer may not receive compensation directly related to the matter in which the lawyer is disqualified.

    Notice, including a description of the screened lawyer­s prior representation and of the screening procedures employed, generally should be given as soon as practicable after the need for screening becomes apparent. When disclosure is likely to significantly injure the client, a reasonable delay may be justified.

    Comment, AZ-ER 1.18, öö 8, 9.