Ezel / Ethics Opinions / DCBAR
DCBAR February 2009

Does a D.C. lawyer owe a duty of confidentiality to a prospective client whose information reached the lawyer only through another lawyer acting on that person's behalf?

Short answer: The opinion concludes yes. When a prospective client consents to having one lawyer call a second lawyer about taking the case, the second lawyer must treat the information conveyed as confidential under Rules 1.6 and 1.18, even though the second lawyer never speaks directly with the prospective client and even though Rule 1.18 by its terms speaks of a lawyer who has had 'discussions with a prospective client.'

Apply this to your situation

This page answers the general question as of 2009. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.

Currency note: this opinion is from 2009
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page) is the authoritative source for any reliance.

Plain-English summary

Opinion 346 (published February 2009) addresses a referral scenario. A would-be client consults Lawyer A, who decides she cannot help but believes Lawyer B would be better suited. With the prospective client's "yes," Lawyer A calls Lawyer B at a different firm and explains the person's predicament. Lawyer B then finds he has a conflict of interest and cannot take the case. The question is whether Lawyer B must safeguard the information Lawyer A passed to him, given that Rule 1.18 speaks of a lawyer "who has had discussions with a prospective client" and Lawyer B never spoke with the prospective client directly.

The Committee answers yes under two independent theories. First, the duty of confidentiality to would-be clients exists in Rule 1.6 itself and does not depend on the "discussions" language of Rule 1.18. Comment [9] to D.C. Rule 1.6 provides that the duty of confidentiality "attaches when the lawyer agrees to consider whether a client-lawyer relationship shall be established." Because Lawyer B presumably agreed to consider the possibility of representation when he spoke with Lawyer A, he owes the duty. The opinion grounds this reading in ABA Formal Opinion 90-358 (which predates Rule 1.18 by twelve years) and the Restatement (Third) of the Law Governing Lawyers section 15.

Second, even assuming Rule 1.18(a) requires a discussion with the would-be client, the opinion concludes that requirement is satisfied because Lawyer A acted as the prospective client's agent for communication. Citing Restatement section 70(f) and the D.C. Circuit's decision in In re Lindsey, the Committee treats a lawyer who relays a client's message, like an interpreter or other trusted intermediary, as a conduit through which the prospective client communicated. The opinion observes that because the ethical duty of confidentiality is broader than the attorney-client privilege, the intermediary principle applies without the strict limits courts impose on the privilege.

The opinion's conclusion is that the second lawyer has an obligation under both Rule 1.6 and Rule 1.18 to treat the communication as confidential. The Committee adds that, given the importance of protecting that information, it is advisable for the first lawyer to disclose at the outset of the call that the purpose is to consider taking on a new case, and to limit initial disclosures to the essential facts until it can be determined whether the second lawyer has a conflict of interest.

In practice

Under the D.C. rules as they stood at the time of the opinion, a lawyer who receives a prospective client's confidential information from another lawyer acting on that person's behalf must treat it as confidential under Rules 1.6 and 1.18, even without any direct contact with the prospective client. The opinion concludes the duty attaches because the second lawyer agreed to consider the possibility of representation, and, alternatively, because the first lawyer served as the prospective client's agent for communication.

The opinion expressly does not decide whether the same facts trigger the separate conflict-of-interest features of Rule 1.18(c); that question is left open. Because the opinion predates later rule developments, verify the current D.C. rules before relying on specific requirements.

Common questions

Q: Can a lawyer owe a duty of confidentiality to someone the lawyer never spoke with?

A: The opinion concludes yes, where the information was conveyed by another lawyer acting as the prospective client's agent with that person's consent. The duty arises under both Rule 1.6 and Rule 1.18.

Q: Rule 1.18 speaks of a lawyer who has had "discussions with a prospective client." How does the duty attach when the second lawyer never spoke to the client?

A: The opinion concludes the duty exists independently in Rule 1.6. Comment [9] to D.C. Rule 1.6 provides that confidentiality attaches "when the lawyer agrees to consider whether a client-lawyer relationship shall be established," which the second lawyer did when he discussed the matter with the first lawyer.

Q: Does the opinion decide whether the second lawyer is also conflicted out of adverse representations?

A: No. The opinion concludes only that a duty of confidentiality is owed; it expressly declines to decide whether the facts also trigger the conflict-of-interest provisions of Rule 1.18(c).

Q: What does the opinion suggest the referring lawyer do to protect the prospective client?

A: The opinion states it is advisable for the first lawyer to disclose at the outset of the conversation that the purpose is to consider taking on a new case, and to limit initial disclosures to essential facts until it is determined whether the second lawyer has a conflict.

Background and rules framework

The opinion interprets D.C. Rule 1.18 (duties to prospective clients), which became effective in February 2007 and is identical in its definition of "prospective client" to ABA Model Rule 1.18(a), read together with D.C. Rule 1.6 (confidentiality of information) and its Comment [9]. The opinion treats Rule 1.18's confidentiality component as a codification of the pre-existing Rule 1.6 duty owed to persons who consult a lawyer but never become clients, and uses the agency-for-communication principle from the law of attorney-client privilege to reach the same result under Rule 1.18.

Citations and references

Rules of Professional Conduct:

  • D.C. RPC 1.6 and Comment [9] / Model Rule 1.6 (confidentiality; duty attaches when the lawyer agrees to consider representation)
  • D.C. RPC 1.18, 1.18(a) / Model Rule 1.18 (duties to prospective clients)

Cases:

  • In re Lindsey, 158 F.3d 1263 (D.C. Cir. 1998), cert. denied, 525 U.S. 996 (agent-as-intermediary and the attorney-client privilege)
  • Derrickson v. Derrickson, 541 A.2d 149 (D.C. 1988) (single consultation and formation of a client-lawyer relationship)

Other opinions and authorities:

  • ABA Formal Op. 90-358 (information from a would-be client protected under Model Rule 1.6)
  • Restatement (Third) of the Law Governing Lawyers sections 15 and 70(f)

See also

Source

Get today's answer for your situation

You just read a 2009 opinion on this question. Ezel checks the current rules of professional conduct in your state and answers your specific situation, with citations.

Opens in Ezel Pro. Every answer cites the rules it relies on.