These summaries were prepared by McGuireWoods LLP lawyer Thomas E. Spahn. They are based on the letter opinions issued by the Virginia State Bar. Any editorial comments reflect Mr. Spahn's current personal views, and not the opinions of the Virginia State Bar, McGuireWoods or its clients. 
 
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  Topic: 22 - Interviews with Prospective Clients
LEO NumTopicsSummaryDate
1642

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1-Adversity to Current Clients

22-Interviews with Prospective Clients

31-Protecting and Disclosing Confidences and Secrets

44-Conflicts - Miscellaneous

A bar association wants to set up a question referral network under which lawyers from other firms will answer questions without obtaining specific confidential or secret information. The Bar holds that it is likely that the lawyer answering a question will acquire confidential or secret information, and that therefore the inquiring lawyer should obtain the client's consent before asking the questions.The Bar explains that "the anonymous hypothetical approach to consultation encounters difficulties as more details are revealed during the consultation, and seemingly innocuous information may be harmful to the client if revealed to others." Although no attorney-client relationship arises between the inquiring lawyer's client and the answering lawyer, a "special relationship" arises. The consultation "would give rise to a reasonable expectation of confidentiality," so the answering lawyer should arrange for a disclaimer making it clear that the lawyer need not maintain the information's secrecy. Although no attorney-client relationship arises, the answering lawyer may not be adverse to the inquiring lawyer's client without the client's consent. To avoid possible disqualification, the answering lawyer should perform a conflicts check before answering any questions. The inquiring lawyer may not reveal the client's identity to the answering lawyer without the client's consent. [Rule 1.6 Comment [7a] discusses such "mentor" communications.]6/9/1995
1794

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22-Interviews with Prospective Clients

73-Family Law Lawyers

A husband planning to divorce his wife interviewed a number of lawyers in town, "but with no intent to hire them" because he already knows he will retain another lawyer. The wife interviewed that lawyer, and signed a disclaimer confirming that her initial interview "does not create an attorney/client relationship." The Bar held that lawyers must maintain the confidentiality of information they acquire from prospective clients. The disclaimer did not eliminate that duty, because it did not address the confidentiality issue. "To be effective, the disclaimer must clearly demonstrate that the prospective client has given informed consent to the attorneys' use of confidential information protected under Rule 1.6." Thus, the lawyer interviewed by the wife could not represent the husband unless the wife consented. In contrast, the husband's interview of other lawyers (including the one ultimately hired by the wife) did not create a duty of confidentiality, because the husband's "primary purpose in meeting with Attorney B was to preclude him from representing the wife." Thus, the wife's lawyer was not disqualified despite having acquired confidential information from the husband. The Bar further explained that a lawyer would be acting unethically if the lawyer were "to direct a new client to undertake this sort of strategic elimination of attorneys for the opposing party." 6/30/2004
1382

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16-Lawyer's Personal Interests

22-Interviews with Prospective Clients

31-Protecting and Disclosing Confidences and Secrets

A lawyer could work with a securities broker/ insurance agent in making presentations to potential clients, but must be careful to obtain the new client's consent to have the broker/agent present during any conversations protected by the attorney-client privilege. 9/13/1990
1015

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2-Adversity to Former Clients

22-Interviews with Prospective Clients

73-Family Law Lawyers

A lawyer discussing the possibility of representing a husband in an uncontested divorce matter realizes that the lawyer currently represents the wife in an unrelated matter. The lawyer may not represent the husband and also may not represent the wife in the divorce (having discussed confidences with the husband) [the Bar does not address the possibility of consent, although the request for Legal Ethics Opinion states that the wife would not object to the lawyer's representation of the husband.] 1/5/1988
0903

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22-Interviews with Prospective Clients

24-Representation of or Adversity to Witnesses

73-Family Law Lawyers

A lawyer for an ex-wife may continue to represent her in a child custody matter even if the current wife (who will be a witness in the child custody matter) had asked the lawyer for advice about a child support issue (the lawyer had advised the present wife to see the Juvenile and Domestic Relations Court Intake Officer). The Bar held that the lawyer had not received any confidences in a "professional relationship" and in any event would not be barred from representing a third party (the ex-wife). 5/1/1987
1546

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22-Interviews with Prospective Clients

73-Family Law Lawyers

A lawyer interviewed about a possible divorce case by a wife may not represent the husband in a divorce case the wife brings three years later unless the wife consents. According to the Bar, "a potential client's initial consultation with an attorney creates an expectation of confidentiality which must be protected by the attorney even where no attorney-client relationship arises in other respects," although "the law firm may have an obligation to put the prospective client on notice that no attorney-client relationship exists between the firm and the prospective client until the firm accepts the engagement." 8/12/1993
1363

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22-Interviews with Prospective Clients

48-Criminal Defense Lawyers

A lawyer interviewing potential co-defendants in a criminal matter might learn confidential information from one that would preclude the representation of another. The Bar held that even if the first potential client consented, the lawyer could not represent the other criminal defendant because of the possible use of the first prospective client's confidences against the prospective client.6/13/1990
0318

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22-Interviews with Prospective Clients

A lawyer may not accept a representation when a partner had consulted with the opposing party about the possibility of representation, unless the opposing party consents. 6/6/1979
0220

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22-Interviews with Prospective Clients

A lawyer may not represent a newspaper in a defamation action if one of its lawyers had pre-publication discussions with the plaintiff and attempted to dissuade the reporter from writing the article (because it was a "very close question" whether an attorney-client relationship arose between the lawyer and the plaintiff). 11/28/1972
0227

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22-Interviews with Prospective Clients

73-Family Law Lawyers

A lawyer may not represent a spouse in a divorce action when the other spouse had consulted the lawyer's firm, even if the spouse later hired another firm and the matters discussed were unrelated to the grounds ultimately at issue in the divorce.9/20/1973
0221

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22-Interviews with Prospective Clients

73-Family Law Lawyers

A lawyer may not represent a wife in a divorce action when an associate had discussed the divorce with the husband (but had not been hired). The Bar noted that the lawyer requesting the Opinion lived in a small town and therefore "a moderately knowledgeable person could visit the office of each trial lawyer in town, without actual intention of hiring any of them, then retain counsel, and claim that every other lawyer was disqualified." 11/29/1972
0337

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22-Interviews with Prospective Clients

73-Family Law Lawyers

A lawyer may not represent a wife in domestic matter when two years earlier the lawyer had conferred with her husband about separation. 9/21/1979
0271

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22-Interviews with Prospective Clients

76-Trust and Estate Lawyers

A lawyer may not represent the estate in a death action after talking with the surviving spouse who will be a defendant in the action. 10/27/1975
0452

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22-Interviews with Prospective Clients

73-Family Law Lawyers

A lawyer may not represent the husband in a divorce action when the lawyer had previously approached the wife at a social gathering and discussed her marital status "in detail." 4/12/1982
ABA-358

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22-Interviews with Prospective Clients

A lawyer must maintain the confidentiality of any information received from a prospective client. If the lawyer receives only limited information, the lawyer may be free to take positions adverse to the prospective client in the same or related matter, but the lawyer would be barred from doing so if the lawyer learns "critical" information from the prospective client and cannot obtain the prospective client's consent to the adversity. The ABA suggests that lawyers obtain waivers of confidentiality in such circumstances, and screen the lawyers with the information from others in the firm. 9/13/1990
0629

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22-Interviews with Prospective Clients

31-Protecting and Disclosing Confidences and Secrets

A lawyer who learns confidences during a professional discussion at a social engagement may not reveal the contents without the client's consent. 11/13/1984
1601

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9-Government Lawyer Conflicts

22-Interviews with Prospective Clients

31-Protecting and Disclosing Confidences and Secrets

57-In-House Lawyers

A lawyer working at a state institution of higher learning may enter into an employment contract under which the lawyer must disclose to the administration information that the lawyer has obtained from those seeking legal advice. Although an "expectation of confidentiality" may arise in situations in which no attorney-client relationship exists, the lawyer may resolve any problems by issuing "a disclaimer to colleagues or students indicating that no attorney/client relationship will be formed and any information received will not be treated as secret or confidential." 7/18/1994
1481

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7-Family Conflicts

22-Interviews with Prospective Clients

31-Protecting and Disclosing Confidences and Secrets

73-Family Law Lawyers

A lawyer's spouse worked in a crisis center, and received confidential information from a woman who called the crisis center. The spouse never revealed this information to the lawyer/spouse. The lawyer later began to represent (in a divorce case) the husband of the woman who had called the crisis center. Because the lawyer had not learned any of the confidences the spouse had acquired from the woman, and had never represented the woman, the lawyer may continue to represent the husband in the divorce matter. 8/24/1992
0949

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22-Interviews with Prospective Clients

73-Family Law Lawyers

A legal aid society lawyer interviewed a spouse in a possible divorce matter. The spouse later hired a private lawyer. When the divorce action begins, the legal aid society represents the other spouse. The legal aid society must withdraw, but the private lawyer may continue to represent the first spouse (if the parties consent). The legal aid society may help find substitute counsel if the parties consent. 7/8/1987
1633

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22-Interviews with Prospective Clients

31-Protecting and Disclosing Confidences and Secrets

A non-lawyer legal aid employee obtains general financial information from applicants to determine if they meet the pro bono standards. If a potential client is referred to one of a group of lawyers handling pro bono cases, the attorney-client relationship exists between the client and the lawyer to whom the client is referred. The "intake interview by non-lawyer staff personnel to determine a person's eligibility for legal aid services" (without the furnishing of any legal advice) does not create an attorney-client relationship with the legal aid office. However, identifying data about a potential legal aid office client is a secret which cannot be disclosed without the potential client's consent. Also, in most circumstances "an initial consultation with an attorney creates an expectation of confidentiality even where no attorney-client relationship arises in other respects." However, different rules apply to legal aid offices, because "a more stringent application of the rules and disqualification would result in decreased access to legal services for the indigent." The Bar recommends that the legal aid intake specialist should obtain a written informed consent at the intake interview in which the prospective client acknowledges "that the limited information given will not be treated as confidential for purposes of enabling the legal aid office to screen for conflicts or to make referrals." 6/9/1995
1453

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22-Interviews with Prospective Clients

24-Representation of or Adversity to Witnesses

31-Protecting and Disclosing Confidences and Secrets

48-Criminal Defense Lawyers

A university pre-paid student legal service office represents students in criminal matters only if the complaining witness or victim is a student and consents to the representation. The ethics rules permit contact with the student (who will be a witness and not a party to the criminal proceeding) and also permits making the representation of the student-defendant contingent on the witness' consent. Although no attorney-client relationship arises from the initial consultation between the office and the student-defendant, the meeting "created an expectation of confidentiality" that the lawyer must respect.3/24/1992
1707

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22-Interviews with Prospective Clients

34-Limiting Liability to Clients

Although a "lawyer's fiduciary duties extend to preliminary consultation by a prospective client with a view to engagement," it is not per se improper for a client engagement agreement to provide for binding arbitration of legal malpractice claims as long as there is adequate disclosure and consent. Like fee agreements, such initially-acceptable engagement agreement provisions might become improper given the "occurrence of unusual and extraordinary facts and circumstances not contemplated at the outset of the representation." The Bar declines to require any specific disclosures or insist that the client actually consult another lawyer before entering into such an agreement (in LEO 638, the Bar seemed to require that the client must be advised to seek independent counsel regarding an arbitration provision). Appropriate disclosures might include "waiver of trial by jury or by the court, discovery, evidentiary rules, arbitrator selection, scope of award, expense, appellate rights, finality of award, enforcement of award." 1/12/1998
1832

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18-Consent and Prospective Waivers

22-Interviews with Prospective Clients

28-Law Firm Staff

Although not bound by lawyers' ethics rules, law firms' secretaries must maintain the confidentiality of information they learn. Thus, a secretary who receives confidential information from a prospective client whom the law firm does not represent (because it wishes to or already does represent the prospective client's adversary) must maintain the confidentiality of that information. Lawyers in that firm can avoid disqualification from representing the adversary if the lawyers screen the secretary from the matters, instruct the secretary "that she cannot reveal to the lawyer any confidential information obtained from Ms. X [the prospective client]," and use another staff person to work on the matter. In addition, the law firm "should send a written communication to Ms. X or her lawyer that these measures have been taken." Such screens do not prevent imputed disqualification involving an individually disqualified lawyer, but can successfully avoid imputation of a non lawyer's individual disqualification. The firm may have to withdraw from representing the adversary if the screen is breached. The Bar "recommends that the firm train non lawyer support staff to minimize confidential information obtained from prospective clients before they can perform the necessary conflicts analysis."5/10/2007
1559

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2-Adversity to Former Clients

22-Interviews with Prospective Clients

24-Representation of or Adversity to Witnesses

Although there is no attorney-client relationship between the lawyer for an infant and the infant's mother (acting as "next friend" in a personal injury action), the lawyer may not represent the infant in an action against his mother without the mother's consent, because "while discussing the infant's case, the mother may have divulged confidential or secret information which may present an advantage to [the lawyer's] representation of the infant and a disadvantage to the mother as a party defendant." 10/20/1993
0661

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2-Adversity to Former Clients

22-Interviews with Prospective Clients

73-Family Law Lawyers

As long as the former client (the ex-wife of the prospective client) consents, a lawyer may represent the father of a child in a custody proceeding against the ex-wife, even though the wife had consulted the lawyer nine years earlier about marital problems. 2/4/1985
1842

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1-Adversity to Current Clients

22-Interviews with Prospective Clients

Because the duty of confidentiality attaches (according to the Preamble) "when the lawyer agrees to consider whether a client lawyer relationship shall be established," lawyers may use to their client's advantage (and represent the adversary of a prospective client who sent) a prospective client's (1) unsolicited voicemail message containing confidential information, sent to a lawyer who advertises in the local Yellow Pages and includes his office address and telephone number; (2) unsolicited e-mail containing confidential information, sent to a law firm which "maintains a passive website which does not specifically invite consumers to submit confidential information for evaluation or to contact members of the firm by e-mail." Someone submitting such confidential information does not have a reasonable basis for believing that the lawyer will maintain the confidentiality of the information, simply because the lawyer uses "a public listing in a directory" or a passive website. The lawyer in that situation "had no opportunity to control or prevent the receipt of that information," and "it would be unjust for an individual to foist upon an unsuspecting lawyer a duty of confidentiality, or worse yet, a duty to withdraw from the representation of an existing client." Lawyers might create a reasonable expectation of confidentiality if they include in advertisements or in their website language that implies "that the lawyer is agreeing to accept confidential information." In contrast to lawyers who merely advertise in the Yellow Pages or maintain a passive website, a lawyer would have to keep confidential (and would be prohibited from representing a client adverse to a prospective client which supplies) information provided by a prospective client who completes an on-line form on a law firm website which "offers to provide prospective clients a free evaluation of their claims." Law firms "may wish to consider" including appropriate disclaimers on their website or external voicemail greeting, or including a "click through" disclaimer "clearly worded so as to overcome a reasonable belief on the part of the prospective client that the information will be maintained as confidential."9/30/2008
1189

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22-Interviews with Prospective Clients

73-Family Law Lawyers

Because the wife has not consented, a lawyer may not represent a husband in a divorce case if one of the lawyer's associates had five years earlier met with the wife to discuss domestic matters (and the lawyer had viewed a memorandum memorializing that discussion), even though the associate who had earlier met with the wife had since left the firm. [Rule 1.10(b) would now permit this representation as long as no lawyer remaining in the firm has any material confidential information.]11/17/1988
ABA-448

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22-Interviews with Prospective Clients

Lawyers will not be subject to all of the duties they owe a client if a would-be client that the lawyer is appointed or directed by a tribunal to represent "refuses the representation."10/20/2007
1757

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5-Lawyers Changing Jobs

22-Interviews with Prospective Clients

31-Protecting and Disclosing Confidences and Secrets

Legal aid society lawyers who are involved in client intake and advice must maintain the confidentiality of what they have learned. “It is irrelevant whether or not an attorney-client relationship ensued” as a result of any client intake interviews, and it is also “irrelevant whether or not the attorneys actually remember” the confidential information imparted to them. When the lawyers move to another legal aid society, their former employer must provide access to the files of clients they formerly represented. It is also necessary for the lawyers to obtain information about their previous work so that they can perform conflicts checks at their new employer. 5/17/2001
1354

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18-Consent and Prospective Waivers

22-Interviews with Prospective Clients

Two passengers and a driver interviewed a lawyer about representing them in an action against the other driver in an accident. However, the lawyer eventually determined that the two passengers should sue their driver. The lawyer told them that the lawyer could represent the two passengers against the driver only if the driver consented. The driver gave oral consent but later refused to provide written consent. The lawyer could not represent the two passengers, because the driver had essentially refused to confirm her oral consent (although oral consent is permissible, the Bar implied that a refusal to immediately sign a written confirmation essentially nullified the consent). [The summary of the LEO incorrectly states that "consent may be withdrawn by a former client at any time."] 5/24/1990
1039

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8-Bills and Fees

22-Interviews with Prospective Clients

Unless the defendant consents, a lawyer may not represent a plaintiff in a personal injury action when the defendant had earlier consulted with the lawyer's partner about a possible representation, even if the firm was never retained, no fees were charged and the partner remembers nothing about the substance of the consultation. Relying on LEO 186-B, the Bar reiterated its opposition to imposition of an automatic finance charge on unpaid bills. Such finance charges are permissible "if the client has agreed to the amount of the attorney's fee, is able to pay, but desires payment be deferred for his convenience," and if the client "agrees to the terms [of the finance charges], retains the right to prepayment without penalty, and is not accessed [sic] a finance charge on fees prior to the time that the fees are earned by the attorney." 2/17/1988
1146

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22-Interviews with Prospective Clients

24-Representation of or Adversity to Witnesses

Unless the victim consents, a lawyer must withdraw as counsel for a defendant in an attempted murder case if the lawyer acquired confidences during an earlier interview with the victim (who was seeking legal help at the time). 10/6/1988

Copyright 2000, Thomas E. Spahn