After a consultation that does not lead to representation, does a D.C. lawyer have to keep or hand over the notes, research, and information from the prospective client meeting?
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This page answers the general question as of 2018. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
Opinion 374 (published April 2018) addresses what a lawyer owes a prospective client regarding the information generated during a consultation that does not lead to representation. The opinion starts from Rule 1.18, which on its face imposes two duties: under Rule 1.18(b), the lawyer may not use or reveal information learned in the consultation (except as Rule 1.6 permits), and under Rules 1.18(c) and (d), the lawyer (and the lawyer's firm) may not represent a client with materially adverse interests in the same or a substantially related matter if the lawyer received a confidence or secret from the prospective client, absent informed consent. The opinion confirms that the Rule 1.6 confidentiality duty extends to the lawyer's notes, mental impressions, research, and investigation relating to the consultation.
The opinion then answers two questions that arise once no relationship forms: must the lawyer preserve, and must the lawyer hand over, the consultation information? On property, the opinion concludes Rules 1.18 and 1.15 require the lawyer to safeguard any property the prospective client entrusted (including intangible property such as intellectual property) and, once the decision not to proceed is final, to return it or dispose of it per the prospective client's instructions. But the opinion concludes that, by its terms, Rule 1.15 does not require the lawyer to preserve or turn over documents or information the lawyer generated or obtained (notes, research, investigation) in which the prospective client has no property interest. The opinion also concludes Rule 1.16(d) (duties on terminating a representation) does not apply, because a prospective client who does not retain the lawyer is not a "client" and there is no representation to terminate.
The opinion notes that, to manage the disqualification risk of Rule 1.18(c), a lawyer may limit the initial interview to non-confidential information sufficient to check for conflicts, or may condition the consultation on the prospective client's informed consent that disclosures will not bar the lawyer from representing a different client, and that a lawyer and prospective client may agree in advance about later use or disclosure of consultation information.
In practice
Under the D.C. rules as they stood at the time of the opinion, a lawyer who meets with a prospective client must protect the prospective client's confidences and secrets under Rules 1.18 and 1.6, and must safeguard and return any property the prospective client entrusted (tangible or intangible) under Rule 1.15 once the decision not to proceed is final. The opinion concludes that, absent a separate legal or contractual obligation, the lawyer need not preserve or turn over the lawyer's own consultation notes, mental impressions, legal research, or investigation in which the prospective client has no property interest, and that Rule 1.16(d) does not apply because no representation was formed.
The opinion concludes a lawyer can reduce the conflict and disqualification risk of Rule 1.18(c) by limiting the initial interview to information needed to run a conflicts check, or by obtaining the prospective client's advance informed consent that the consultation will not bar the lawyer from representing a different client. Because the opinion predates later rule developments, verify the current D.C. rules before relying on specific requirements.
Common questions
Q: Is what a prospective client tells me in a consultation confidential even if I do not take the case?
A: The opinion concludes yes. Under Rules 1.18(b) and 1.6, the lawyer must protect the prospective client's confidences and secrets to the same extent as a client's, including the lawyer's notes, mental impressions, research, and later investigation.
Q: Do I have to give a prospective client my notes and research if they ask after I decline the case?
A: The opinion concludes no, absent a separate legal or contractual duty. The lawyer need not preserve or turn over information the lawyer generated or obtained in which the prospective client has no property interest.
Q: What about documents or items the prospective client gave me?
A: The opinion concludes the lawyer must safeguard property the prospective client entrusted (tangible or intangible, such as intellectual property) under Rule 1.15 and, once the decision not to proceed is final, return it or dispose of it as the prospective client directs.
Q: Does the file-surrender rule for ending a representation apply here?
A: The opinion concludes Rule 1.16(d) does not apply, because a prospective client who does not retain the lawyer is not a "client" and there is no representation to terminate.
Q: How can I avoid being disqualified by what a prospective client tells me?
A: The opinion concludes a lawyer may limit the initial interview to non-confidential information sufficient to check for conflicts, or may condition the consultation on the prospective client's informed consent that disclosures will not prohibit representing a different client.
Background and rules framework
The opinion interprets D.C. Rule 1.18 (duties to a prospective client), read with Rule 1.6 (confidentiality), Rule 1.7 (conflicts), Rule 1.15 (safekeeping property), and Rule 1.16(d) (duties on terminating a representation, which the opinion finds inapplicable absent a client). It relies on the commentary to Rule 1.18, which states that prospective clients should receive some but not all of the protection afforded clients.
Citations and references
Rules of Professional Conduct:
- D.C. RPC 1.18 / Model Rule 1.18 (duties to a prospective client)
- D.C. RPC 1.6 / Model Rule 1.6 (confidentiality)
- D.C. RPC 1.15 / Model Rule 1.15 (safekeeping property)
- D.C. RPC 1.16(d) / Model Rule 1.16 (duties on terminating a representation)
- D.C. RPC 1.7 / Model Rule 1.7 (conflicts of interest)
See also
- ABA Formal Op. 492: Obligations to Prospective Clients
- ABA Formal Op. 90-358: Protection of Information From a Prospective Client
- CA COPRAC Op. 2021-205: Duties to Prospective Clients
- DC Ethics Op. 383: Outside Counsel Guidelines and Client Confidences
Source
- Landing page: https://www.dcbar.org/for-lawyers/legal-ethics/ethics-opinions-210-present/ethics-opinion-374
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