Inside Track: Ethical dilemmas: Confidentiality and prospective clients in divorce situations:

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  • Ethical dilemmas: Confidentiality and prospective clients in divorce situations

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    Nov. 17, 2010 – Ethical dilemmas affect every lawyer’s practice. Issues relating to client files, prospective clients, conflicts, trust accounts, confidentiality, tribunals, communication with opposing parties, reporting professional misconduct and advertising arise frequently. This is the second in a series of questions and answers that appears each month in InsideTrack. The answers, offered by State Bar’s ethics counsel org tpierce wisbar Timothy Pierce, are intended to provide brief guidance only and are not legal authority. Each situation will depend on the facts and circumstances involved.

    Question

    I met with a woman who was considering a divorce. I spoke with her for about an hour, discussing what would be involved in a divorce, what she might be able to expect in her situation, and what she hoped to achieve. She stated she was unsure if she wanted to proceed, but would let me know. I heard nothing from her for quite some time and more or less forgot about her. Then, 14 months later, a man called about possible divorce representation, stating that he had just been served by his wife’s lawyer. I ran a conflicts check and discovered that the wife was the woman I spoke to 14 months earlier, but who has never retained me. Can I represent this man?

    Answer

    The lawyer has a conflict and may only represent the husband with signed conflict waivers from both the wife and the husband. Lawyers owe duties of confidentiality and, to a certain extent, loyalty to prospective clients and hence may have conflicts with respect to prospective clients. When a lawyer has received information from a prospective client that could be significantly harmful to that prospective client, and here the lawyer clearly has received such information because the lawyer discussed the prospective client’s desired goals, that lawyer may not represent a client adverse to the prospective client in the same or substantially related matter. Note that the lawyer must keep information relating to the consultation with the prospective client confidential unless the lawyer has the informed consent of the prospective client to reveal that information.

    References: SCR 20:1.18; State Bar of Wisconsin Formal Opinion E-89-5, ABA Formal Ethics Opinion 90-358; Restatement of the Law Governing Lawyers, §15.

    For more information, visit the Ethics webpage on WisBar.