Distinguishing between clients and former clients is vital for avoiding conflicts of interest and breaches of attorney-client confidentiality.
I have often wondered whether there is a specific timeline to determine when a client is considered a former client. Is there a magic number?
Unfortunately, there is no magic number that can be relied on to determine whether a client is properly deemed to be a former client. SCR 20:1.9 of the Wisconsin Rules of Professional Conduct addresses conflicts of interest relating to a former client. The rule provides that a lawyer may not represent a new client in the same or a substantially related matter for which the lawyer provided representation to a former client. The rule also focuses on the prohibition against using information learned during the representation of a former client, especially if it is to the detriment of the former client. There is not, however, a specific definition of what it means to be a former client or how you determine whether a client is now considered a former client.
Two considerations are normally looked to when analyzing whether a client should be deemed a former client. The first consideration is when the representation of the client ended or how long ago the representation took place. A subpart of this consideration is the timing of the last communication with the client and whether that last communication addressed the issue of the representation ending. When used, this is often called a “disengagement letter,” although it is not a common practice to send a letter telling a client that you no longer are representing them. It can occur in litigation matters, but most attorneys want the client to think of them as their lawyer and not think that the relationship has ended.
This leads to the second critical consideration – would the client reasonably believe that the lawyer is still representing the client. Often, evaluation of this facet turns on whether the client is receiving communication from the law firm, invited to law firm activities, or in some other way given indications by the law firm that there is still an existing attorney-client relationship with that client. This analysis is based on specific facts and will very much depend on the individual client, the type of legal work provided to the client, and the actions of the lawyer or law firm seeking to maintain some type of ongoing relationship with that client.
Unfortunately, I cannot identify a specific timeline or duration that would determine whether a particular client should be considered a former client of the lawyer or law firm. It would be a mistake to simply say that if you have not had contact with a client for two years, you can consider the client to be a former client of the lawyer or firm. Each case requires individual review and analysis because the determination will generally be made based on the client’s reasonable considerations, not the lawyer’s.