In Ethics Opinion 3474 (Ethical Obligations Regarding Prospective Client Information), the D.C. Bar Legal Ethics Committee opined on an interesting issue: whether there is an ethical duty to preserve or to turn over the information acquired from a prospective client that chose not to retain the lawyer or whose engagement the lawyer did not or could not accept. The Committee found that there isn’t.
Rule 1.18 imposes only two obligations on a lawyer: a duty of confidentiality and duty to avoid conflicts of interest. The Committee noted that Rule 1.16(d) requires a lawyer, in connection with any termination of representation, to “take timely steps to the extent reasonably practicable to protect a client’s interests, such as . . . surrendering papers and property to which the client is entitled” but that the prospective is not a full fledge client , “there is no representation to terminate” and that Rule 1.16(d) does not apply.
This doesn’t meant that the lawyer can retain property belonging to the prospective client (e.g, documents). The opinion is clear to that respect: “a lawyer must safeguard and return documents or other property entrusted to the lawyer by a prospective client while evaluating whether to form a client-lawyer relationship”.
But, for the information “earned in or related to the prospective client consultation”, the prospective client has no propriety interest. In conclusion,
the D.C. Rules impose no obligation on the lawyer to preserve information learned in or related to the prospective client consultation in which a prospective client has no property interest. Similarly, a lawyer has no obligation under the D.C. Rules to turn over to a prospective client, either at the time that the lawyer and/or prospective client decide not to form a client-lawyer relationship or thereafter, information learned in or related to a prospective client consultation.
This is consistent with the commentary to Rule 1.18: “prospective clients should receive some but not all of the protection afforded clients.
For more information, Nathan M. Crystal and Francesca Giannoni-Crystal.