A lawyer who does not create a lawyer-client relationship with respect to a matter still owes some ethical duties to the prospective client.
I have faced various instances when I have decided not to represent someone who contacted me. Do I owe certain ethical duties to a person if I decide not to represent the person?
Just because you decided not to represent a person does not mean that you owe no ethical duties to the person. SCR 20:1.18 of the Wisconsin Rules of Professional Conduct addresses the ethical duties that are owed to a “prospective client.” A prospective client is a person who has contacted you (either in person or by other methods of communication) and has expressed an interest in having you provide legal representation to the person. You might decide not to represent the person either after a personal interview or based on a telephone conversation or email communication with the person. You are still obligated to follow certain ethical requirements even though you decided not to represent the person.
Under the requirements of SCR 20:1.18, a lawyer who does not create a lawyer-client relationship with respect to a matter still owes the following ethical duties to the prospective client:
The lawyer must not use or reveal information that is learned during discussions with the prospective client unless the information can be disclosed under the limited exceptions in the former-client rule, SCR 20:1.9. These are situations in which the information learned during the discussion with the prospective client has become public information that is known to the general public.
A lawyer who consults with a prospective client but declines representation must not represent another client with interests that are materially adverse to those of the prospective client in the same or a substantially related matter. This duty applies if the lawyer received information during the interview of the prospective client that would be significantly harmful to that prospective client in the matter.
There are some qualifying factors here for the potential of a conflict of interest. The first one is that the lawyer must not represent the other side in a matter in which the prospective client is involved if the prospective client gave information to the lawyer that would be considered significantly harmful to that person in the matter in dispute. Formal Opinion EF-10-03, issued by the State Bar of Wisconsin’s Professional Ethics Committee, describes what is meant by significantly harmful information from the prospective client. This is why it is very important to do a conflict check before engaging in a detailed discussion with a prospective client about the need for representation.
Another option for representation exists if the lawyer who received the significantly harmful information is timely screened from any participation in the matter and does not receive any part of the fee from representation provided by other lawyers in the lawyer’s law firm. In this instance, the prospective client must be notified about screening the law firm is doing in order to provide representation to the other party.
If the lawyer has received information that is significantly harmful to the prospective client, the lawyer nevertheless could represent the opposing party if the affected prospective client and the client on the other side give written informed consent to the representation, signed by each person.
If a lawyer is disqualified from representing a prospective client because the lawyer received significantly harmful information, no other lawyer in the lawyer’s law firm can engage in representing the opposing party in the matter unless one of the exceptions noted above is complied with.
Lawyers must be very careful when they decline the representation of a prospective client. The act of declining a representation does not end the existence of certain ethical duties to that prospective client. It is also important to identify the prospective client and note the decision not to provide representation in the law firm’s conflict-checking system, as a means of documenting the decisions made about that prospective client.
A lawyer who consults with a prospective client but declines representation must not represent another client with interests that are materially adverse to those of the prospective client in the same or a substantially related matter.
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» Cite this article: 95 Wis. Law. 41-42 (Sept. 2022).