When does an email from a would-be client create duties under New Hampshire's Rule 1.18, and can a firm screen the lawyer to avoid disqualifying the whole firm?

Plain-English summary

The opinion interprets New Hampshire's Rule 1.18, adopted in 2007, which addresses the duties a lawyer owes to a prospective client. The central concern is the law firm website that invites the public to email a lawyer: information arriving that way can trigger Rule 1.18 duties even though the firm never agreed to take the matter.

New Hampshire's version of Rule 1.18 is broader than the Model Rule. It drops the Model Rule's "discussion" and "consultation" language and extends protection to a person who, in a good faith search for representation, provides information unilaterally to a lawyer who then receives and reviews it. Under Rule 1.18(b), reviewing that information triggers confidentiality obligations, and the lawyer must treat the information as that of a former client under Rule 1.9. The opinion notes the limit drawn from the comments: a person who communicates unilaterally with no reasonable expectation that the lawyer will consider representation, or who contacts a lawyer to disqualify them or runs a "beauty contest," is not a prospective client.

On conflicts, the opinion explains that receiving significantly harmful information disqualifies the lawyer from a materially adverse, substantially related matter, but Rule 1.18(d) allows the firm to avoid imputed disqualification through screening, a departure from prior New Hampshire law that recognized screens mainly for former government lawyers under Rule 1.11. Screening works only if the lawyer took reasonable measures to limit the review to what was necessary, the screen is timely, the disqualified lawyer gets no part of the fee, and the firm gives the prospective client prompt written notice. The opinion also discusses prospective-client consent and is skeptical of website "click" waivers obtained before any consultation, citing concern that such consent is less informed and may jeopardize privilege, with reference to Barton v. United States District Court.

In practice

The opinion concludes that, under New Hampshire's Rule 1.18, a firm whose website solicits email from the public can owe confidentiality and conflict duties to a sender once a lawyer receives and reviews the information. It holds that disqualification turns on whether the reviewed information could be significantly harmful, and that imputed disqualification of the firm can be avoided only when the lawyer limited the review, the screen is timely and fee-isolated, and prompt written notice is given. The opinion treats prior "clicked" website waivers of confidentiality as available under the rule but of uncertain effectiveness, and notes they may threaten the prospective client's privilege.

Common questions

Q: Does opening an unsolicited email from a stranger make that person a prospective client in New Hampshire?

A: Not necessarily. The opinion explains that a purely unilateral disclosure, sent with no reasonable expectation that the lawyer is willing to consider representation, does not trigger Rule 1.18 duties; but information sent in good faith pursuit of representation, once received and reviewed, does.

Q: What duty does a lawyer owe to information reviewed from a prospective client?

A: Under Rule 1.18(b), the opinion says the lawyer must treat the information as that of a former client under Rule 1.9, not using it to the person's disadvantage or disclosing it except as the rules permit.

Q: When is a lawyer disqualified from representing the other side?

A: The opinion states that disqualification under Rule 1.18(c) arises only if the lawyer received and reviewed information that could be significantly harmful to the prospective client in the same or a substantially related matter.

Q: Can screening save the rest of the firm from disqualification?

A: Yes, if done properly. The opinion explains Rule 1.18(d) permits screening to avoid imputed disqualification when the lawyer took reasonable measures to limit the review, the screen is timely, the screened lawyer receives no part of the fee, and the firm promptly gives the prospective client written notice.

Q: Are website "click to accept" waivers a reliable fix?

A: The opinion treats them cautiously. It notes New Hampshire's Comment expresses concern that consent obtained before any consultation is less informed, and warns that such a waiver may jeopardize the prospective client's attorney-client privilege.

Background and rules framework

The opinion interprets New Hampshire Rule 1.18 (duties to prospective clients), adopted with the 2007 rule revisions, and reads it together with Rule 1.9 (duties to former clients), Rule 1.7 (current-client conflicts and informed consent), Rule 1.11 (former government lawyers), and the Rule 1.0(k) definition of screening. New Hampshire's Rule 1.18 is broader than ABA Model Rule 1.18 because it protects unilateral, good faith disclosures rather than only information shared in a "consultation."

Citations and references

Rules of Professional Conduct:

• MR 1.18 / NH Rule 1.18 (duties to prospective clients)
• MR 1.9 / NH Rule 1.9 (duties to former clients)
• MR 1.7 / NH Rule 1.7 (concurrent conflicts of interest)
• MR 1.11 / NH Rule 1.11 (former government officers and employees)
• MR 1.0 / NH Rule 1.0(k) (definition of "screening")

Cases:

• Barton v. United States District Court for the Central District of California, 410 F.3d 1104 (9th Cir. 2005), online questionnaire respondents treated as prospective clients

Other opinions cited:

• ABA Formal Op. 90-358 (1990): protection of information imparted by a prospective client
• Massachusetts Bar Op. 2007-1: website email links and prior consent
• ABA Model Rule 1.18, Comments 2, 5, 7, 8; ABA Model Rule 1.0, Comment 10

See also

• ABA Formal Op. 492: Obligations to Prospective Clients
• ABA Formal Op. 510: Avoiding Imputation of a Prospective-Client Conflict
• ABA Formal Op. 90-358: Protection of Information Imparted by Prospective Client

Source

• Landing page: https://www.nhbar.org/ethics/opinion-2009-10-01
• Original PDF: https://nhba.s3.amazonaws.com/wp-content/uploads/2020/01/14111506/2009-10-01-REFORMATTED-Duties-to-Prospective-Clients.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.
NEW HAMPSHIRE BAR ASSOCIATION
Duties to Prospective Clients
Ethics Committee Advisory Opinion #2009-10/01

ABSTRACT:
A lawyer must be careful when exposed to confidential information from a prospective client.
If a lawyer is exposed to such confidential information, it may disqualify the lawyer from later
representing an opposing party. This opinion outlines certain steps to avoid disqualifying the entire
law firm from representing others with materially adverse interests in the matter.

ANNOTATIONS:
New Hampshire’s Rules of Professional Conduct generally prohibit an attorney from using or
revealing confidential information received from a prospective client, even if the lawyer declines
to represent the party who contacted him. If a lawyer reviews information relayed in an electronic
message that could be significantly harmful to its sender, he or she may be disqualified from later
representing an opposing party. Further, unless the steps described in this article are followed, the
entire law firm could be disqualified from representing others with materially adverse interests in
the matter.
The internet has changed the practice of law in many ways, including the way people find
lawyers to represent them. Law firms have employed different means to leverage these changes
into more business, but the Ethics Committee advises lawyers and law firms in the State to consider
carefully the implications of using their websites to invite members of the public to email the firms’
attorneys.

INTRODUCTION:
Among the new and revised ethical rules adopted by the New Hampshire Supreme Court in 2007
is Rule 1.18, Duties to Prospective Clients.

Rule 1.18. Duties to Prospective Clients

a. A person who provides information to a lawyer regarding the possibility of forming a
client-lawyer relationship with respect to a matter is a prospective client.
b. Even when no client-lawyer relationship ensues, a lawyer who has received and reviewed
information from a prospective client shall not use or reveal that information except as
Rule 1.9 would permit with respect to information of a former client.
 c. A lawyer subject to paragraph (b) shall not represent a client with interests materially
adverse to those of a prospective client in the same or a substantially related matter if the
lawyer received and reviewed information from the prospective client that could be
significantly harmful to that person in the matter, except as provided in paragraph (d). If a
lawyer is disqualified from representation under this paragraph, no lawyer in a firm with
which that lawyer is associated may knowingly undertake or continue representation in
such a matter, except as provided in paragraph (d).
d. When the lawyer has received and reviewed disqualifying information as defined in
paragraph (c), representation is permissible if:
1. both the affected client and the prospective client have given informed consent,
confirmed in writing, or:
2. the lawyer who received and reviewed the information took reasonable measures
to avoid exposure to more disqualifying information than was reasonably necessary
to determine whether to represent the prospective client; and
a. the disqualified lawyer is timely screened from any participation in the
matter and is apportioned no part of the fee therefrom; and
b. written notice is promptly given to the prospective client.

This rule clarifies the status of persons who seek representation but do not become firm clients. It
recognizes that the confidential information they share with a lawyer, under certain circumstances,
should be protected from disclosure by the consulted lawyer. Similarly, the prospective
relationship, under the right circumstances, should preclude the lawyer, and perhaps the other
lawyers in his or her law firm, from representing others with adverse interests. At the same time,
Rule 1.18 seeks to protect current clients’ right to counsel of their choice and avoid unnecessary
firm disqualifications by permitting a law firm to screen a lawyer who has reviewed otherwise
disqualifying confidential information.

When a law firm’s website invites the public to send an email to one of the firm’s lawyers, it is
opening itself to potential obligations to prospective clients. Careful compliance with the
requirements of Rule 1.18 can help law firms avoid any adverse consequences, but compliance
efforts should begin well before a firm’s attorney considers whether to open the email.

DISCUSSION:

I. Recognizing the Prospective Client
Prior to the adoption of Rule 1.18, the Rules of Professional Conduct did not explicitly address
pre-representation communications. However, ethics opinions recognized that, even if the
representation was never undertaken, communications by a prospective client seeking legal
representation could be protected from disclosure if the prospect’s expectation of confidentiality
was reasonable. ABA Formal Ethics Op. 90-358 (1990). Before the advent of the information
superhighway, law firms had an easier time controlling the flow of potentially disqualifying
information. Initial interviews with prospective clients were conducted in person or over the phone.
Lawyers could more easily set the ground rules. They could control the prospective clients’
expectations that the lawyer would or could maintain the confidentiality of any information
disclosed during the initial consultation, and discourage the unilateral disclosure of compromising
confidences by limiting disclosure to information needed to complete a conflicts check and
confirm the lawyer’s subject matter competence. The lawyer’s control was compromised when
communication came in the form of unsolicited mail, so pre-1.18 ethics opinions also recognized
that a person shouldn’t have the power to unilaterally bind a lawyer to maintain confidentiality. A
willingness on the part of the lawyer to at least discuss the prospects for representation was an
essential prerequisite to the obligation to protect the prospective client’s confidences. A person’s
unilateral disclosure, without a reasonable expectation of confidentiality and a willingness on the
part of the lawyer to consider representation, was unprotected. This is codified in Rule 1.18(a) and
the accompanying comments where the Rule’s drafters sought to prevent exploitation of Rule 1.18
to disqualify an adverse party’s counsel of choice. The ABA’s comments continue the “reasonable
expectation” standard from the pre-Rule 1.18 regime. See ABA Model Rule 1.18, Comment 2 (“A
person who communicates information unilaterally to a lawyer, without any reasonable
expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer
relationship, is not a ‘prospective client’ within the meaning of paragraph (a).”). It also strips
“prospective client” status from those individuals who make disclosures for the purpose of
disqualifying an attorney from participation in the matter, and those conducting a so-called “beauty
contest” by making contemporaneous contact with numerous attorneys or law firms. Id. Sending
an unsolicited email is a unilateral act. The information that a person puts into an unsolicited email
should not trigger confidentiality obligations if a lawyer, with no expectation that the sender is
seeking legal representation or disclosing confidences, opens the email. When the law firm’s
website invites a member of the public to contact one of the firm’s lawyers in an email, however,
any disclosure made in the email looks less unilateral. Current technology restricts the attorney’s
ability to manage expectations and the flow of information. The ABA’s Model Rule 1.18 applies
only to persons who have made disclosures in “discussions” and “consultation” with a lawyer and
does not explicitly address the status of persons who send emails to a law firm via its website. New
Hampshire’s Rule 1.18 does not specifically address emails either, but it is broader than the ABA’s
model rule and covers any disclosure made in a good faith pursuit of legal representation.
Moreover, the New Hampshire comments accompanying the Rule address this explicitly.

   In its version of these provisions, New Hampshire’s rule eliminates the
   terminology of ‘discussion’ or ‘consultation’ and extends the protections of
   the rule to persons who, in a good faith search for representation, provide
   information unilaterally to a lawyer who subsequently receives and reviews
   the information. This change recognizes that persons frequently initiate
   contact with an attorney in writing, by e-mail, or in other unilateral forms,

and in the process disclose confidential information that warrants
protection.

Rule 1.18, New Hampshire Comment 1. Thus, a “prospective client” can be the person who

merely “provides information to a lawyer . . . ,” with or without discussion or consultation, and the
lawyer who “has received and reviewed information from a prospective client . . .” is subject to
confidentiality obligations and may be disqualified from representing an adverse party in the same
or any substantially related matter.
Under Rule 1.18(b), a lawyer effectively demonstrates a willingness to consider representation,
and thereby triggers prospective client obligations, by reviewing the information received from the
prospective client.

II. Confidentiality Obligations Owed to the “Prospective Client”
A person who discloses information in an email sent to an attorney – in a good faith search for
representation and with a reasonable expectation that the attorney is willing to discuss that
possibility – becomes a “prospective client” under New Hampshire’s Rule 1.18. Whether or not
the attorney ultimately agrees to represent the prospective client, or even intended to consider it,
confidentiality obligations attach once the attorney receives and reviews the information in the
email. The attorney must treat the information received and reviewed as if the prospective client
were a former client and in accordance with the permissions and proscriptions contained in Rule
1.9. Rule 1.18(b). Thus, a lawyer shall not use information relating to the prospective
representation, “to the disadvantage of the former [or prospective] client,” and shall not disclose
such information, unless such disclosure or disadvantageous use is required or permitted under
other Rules of Professional Conduct or when the information is “generally known. ”In short, once
an attorney receives and reviews confidential information in a prospective client’s email, that
information must be protected from disclosure as if it had been disclosed by any other client or
former client.

III. Disqualification and Screening to Avoid Imputed Disqualification
Receipt and review of the confidential information disclosed in an email received from a
prospective client can also create conflicts of interest with a lawyer’s current and future clients.
Prior to the adoption of Rule 1.18, there was no clear limitation on the consulting lawyer’s ability
to represent parties with interests adverse to the prospective client and could only be inferred.
Thus, depending on how the rules were interpreted, the attorney as well as the rest of the attorneys
in the firm, might be disqualified from representing the adverse party, even if the disqualifying
communication was made to only one of the firm’s members. Rule 1.18 clarifies the circumstances
under which an attorney who has reviewed information disclosed by a prospective client is
disqualified from representing other parties with materially adverse interests. In many ways, the
lawyer’s duty to avoid conflicts of interest with a prospective client is similar to the duty owed to
former clients. The lawyer cannot represent someone else in the same or substantially related
matter if that person’s interests are materially adverse to the prospective client’s. In addition, any
conflict can be waived by the prospective client. There are important distinctions, however, that
take into account the prospective nature of the relationship formalized in Rule 1.18. Since there is
no prior representation to trigger the duty, the conflict arises only if the lawyer received and
reviewed information that could be significantly harmful to the prospective client. Knowledge of
disqualifying information is not presumed from the prior prospective relationship the way it is
from the relationship between a lawyer and a former client. In addition, because the lawyer’s
review of a prospective client’s confidential information may have been fleeting and superficial,
as compared to the lawyer’s familiarity with the confidences of a current or former client, Rule
1.18(d) endorses reliance on screening procedures, in appropriate circumstances, to avoid imputed
disqualification of the entire firm. This is a major departure from existing New Hampshire law on
conflicts which recognized the effectiveness of a screen against imputed disqualification only
when conflicts arose from the firm’s association with lawyers formerly employed by the
government. (Rule 1.11). Though the opportunity to screen an otherwise disqualified attorney
helps protect clients’ freedom to choose their own counsel, law firms cannot casually rely on after-
the-fact screening procedures to limit their obligations to good faith prospective clients. Screening
is available to avoid imputed disqualification only if the lawyer took reasonable measures to limit
his review of information from the prospective client to that which was reasonably necessary to
determine whether to offer representation. The firm, therefore, should maintain and reinforce clear
procedures to be followed during initial interactions with potential clients so that its lawyers gather
only that information needed to rule out any conflict with existing clients and determine whether
the matter is one that the firm is willing to undertake. The firm’s lawyers should obviously know
to stop reviewing materials as soon as they discern that the information contained in them exceed
these limits. Rule 1.0(k) defines “screening” as:

   the isolation of a lawyer from any participation in a matter through the
   timely imposition of procedures within a firm that are reasonably adequate
   under the circumstances to protect information that the isolated lawyer is
   obligated to protect under these Rules or other law.


To be effective against imputed disqualification, in the context of the prospective client or the

former government lawyer for that matter, any screen must be implemented in a timely fashion, or
“as soon as practical after a lawyer or firm knows or reasonably should know that there is a need
for screening.” ABA Model Rule 1.0, Comment 10. The comments to Rule 1.0 provide further
guidance to ensure implementation of an effective screen, including acknowledgment by the
disqualified lawyer of the obligation not to communicate with respect to the matter, notice to the
lawyers and staff working on the matter about the existence of the screen, denial of access by the
screened lawyer to files or materials in the firm’s possession that are related to the matter, and
periodic reminders to all concerned. Furthermore, it is a precondition of any effective screening
program that the disqualified lawyer may not be apportioned any part of the fee from the
engagement. Rule 1.18(d)(2)a. See also ABA Model Rule 1.18, Comment 7 (“Paragraph (d)(2)(i)
does not prohibit the screened lawyer from receiving a salary or partnership share established by
prior independent agreement, but that lawyer may not receive compensation directly related to the
matter in which the lawyer is disqualified.”).
Finally, the firm must promptly provide written notice to the prospective client of the firm’s
representation of the adverse party. Rule 1.18(d)(2)b. The Rule is silent as to the content of the
written notice to be provided. The commentary accompanying the Rule provides that the notice
should include a general description of the subject matter about which the lawyer was consulted,
and the screening procedures employed. See ABA Model Rule 1.18, comment 8.
To protect its clients’ rights to counsel of their choice, law firms should be alert to the risks
posed by the messages in their lawyers’ email inboxes. By exercising due care, lawyers can avoid
exposure to disqualifying information. Momentary lapses, and even unavoidable contamination,
are still correctable if the lawyer stops his or her review as soon as can be reasonably expected
under the circumstances and alerts the other lawyers in the firm of the need to implement a timely
screen.

IV. Informed Consent

Screening of a lawyer tainted by exposure to disqualifying information is not the only way

Rule 1.18 balances the interests of prospective clients against the interests of others to retain their
counsel of choice. The prospective client that never engages the lawyer is treated as a former client.
Like any former client, a prospective client under Rule 1.18(d)(1) can grant effective consent to
the representation of another by the attorney or law firm, even in the same (or a substantially
related) matter about which the prospective client sought representation, and even if the
information received and reviewed by the attorney could be significantly harmful. This consent
must be “informed,” as that term is defined in Rule 1.0(e), as to the material risks of and reasonably
available alternatives to the proposed representation in order to be effective. Clearly, consent is
not the favored method for accommodating the confidentiality and choice of counsel interests
implicated by communications from prospective clients. However, the ABA comments to the
Model Rule 1.18 provide that a lawyer may obtain a prospective client’s prior written and informed
consent as a precondition to consulting about potential representation.

   A lawyer may condition conversations with a prospective client on the
   person’s informed consent that no information disclosed during the
   consultation will prohibit the lawyer from representing a different client in
   the matter. . . . If the agreement expressly so provides, the prospective client
   may also consent to the lawyer’s subsequent use of information received
   from the prospective client.

ABA Model Rule 1.18, comment 5. The Ethics Committee of the Massachusetts Bar
Association has also suggested that a lawyer could obtain informed consent electronically, and
thereby avoid the loyalty and confidentiality obligations that would otherwise be owed to a
prospective client who utilized a link found on the law firm’s website to send an otherwise
unsolicited email seeking legal representation.1

   Using readily available technology, the firm may require a prospective
   client to review and “click” his assent to terms of use before using an e-mail
   link. Such terms of use might include a provision that any information
   communicated before the firm agrees to represent the prospective client will
   not be treated as confidential. Or the terms of use could provide that receipt
   of information from a prospective client will not prevent the firm from
   representing someone else in the matter.
Massachusetts Opinion 2007-1, p. 5. 1 In theory, this reasserts the lawyer’s ability to set

conditions on the flow of information the way a lawyer can when talking to a potential client in
person or over the telephone. In practice, however, a waiver of confidentiality designed to prevent
disqualification may jeopardize the subsequent assertion of privilege over matters communicated
by a prospective client.
In this context, consideration should be given to the decision in Barton v. United States Dist.
Ct. for the Cent. Dist. of Cal., 410 F.3d 1104 (9th Cir. 2005). In that case, the law firm had posted
a questionnaire on the internet to gather information about potential class members who might
have claims arising from the use of a prescription medication. The plaintiffs had answered the
questions before retaining the law firm to represent them in a class action. The district court
ordered production of their answers in discovery. The appellate court blocked the disclosure,
finding that, while the law firm carefully designed the questionnaire to avoid forming attorney-
client relationships upon mere submission of answers, the disclaimer accompanying the
questionnaire did not discuss confidentiality. The people who answered the questionnaire were
treated as prospective clients whose disclosures were covered by the attorney-client privilege. The
result in Barton may well have been different had the law firm used the kind of “clicked” waiver
endorsed in the Massachusetts opinion to avoid imputed disqualification resulting from unilateral
disclosures of confidential information by a prospective client.
New Hampshire, for its part, is a bit more skeptical of the effectiveness of consent to conflicts
of interest that is sought and obtained before the actual consultation. Comment #3 to Rule 1.18
expresses concern about lawyers and law firms relying on this kind of prior informed consent.
New Hampshire perceives a distinction between the detailed analysis contemplated by the Rules
and commentary when informed consent to a conflict is sought from a current client, see Rule 1.7,

1
The Supreme Judicial Court of Massachusetts has not adopted Model Rule 1.18, so the Massachusetts opinion
concerning confidentiality obligations owed to prospective clients is derived from Rule 1.6 and the potential client’s
reasonable expectation of confidentiality. See Massachusetts Opinion 2007-1, pp. 3, 5.
comment 22, and the prior consent obtained from a prospective client that likely will be less
deliberate, and less informed as to its potential adverse consequences. These concerns are only
heightened when the prior consent is informed only by an electronic disclaimer on the website,
which may or may not be read and considered carefully before consent is “clicked.”
Rule 1.18 unequivocally permits law firms to avoid disqualification by seeking and obtaining
from the prospective client a waiver of confidentiality or consent to conflicts of interest that would
be unwaivable in the current client context. Keep in mind, however, that all clients were
prospective clients at one time. Before relying on automated methods of securing waivers of
confidentiality and/or consent to conflicts of interest before the prospective clients make their
disclosures, law firms must consider the effect such prior consent and waiver may have on the
prospective client’s attorney-client privilege.

CONCLUSION:
When people or entities seek legal representation, the interest in protecting confidences can
conflict with the interest in choosing one’s counsel. In accommodating these conflicting interests,
Rule 1.18 provides important clarification regarding the status of prospective clients, the protection
that must be given to information received from them, and the circumstances under which such
information can disqualify a lawyer or law firm from representing another client with adverse
interests.

Rule 1.18 encourages law firms to limit the exchange of information during initial

consultations with those seeking legal representation. This minimizes the risk of exposure to the
kind of significantly harmful information that results in disqualification. At the same time, it
maximizes the chance that efforts to screen the lawyer who might inadvertently review
disqualifying information will be effective to ward off imputed disqualification of the rest of the
firm. Disqualification is best avoided, then, by having procedures in place that are reasonably
designed to limit the prospective client to disclosing only that information that is necessary to
determine whether to offer representation.

The ability to effectively limit unwanted, disqualifying disclosure, however, is compromised

when a law firm’s website invites any web surfer to click on a link to email a lawyer in the firm.
The firm will have to prove that prior consent – which the prospective client indicated by
“clicking” acceptance of the terms of a website disclaimer purporting to waive confidentiality and
potential conflicts of interest – was sufficiently “informed” to be effective. After one of the firm’s
lawyers has received and reviewed the prospective client’s confidential information, informed
consent to representation of an adverse party will not be easily obtained. The firm’s ability to
continue to represent even a longstanding client, if it has interests adverse to the prospective client,
will likely depend on the reasonableness of the measures taken to avoid disqualifying disclosures,
and the effectiveness and timeliness of any screening procedures.
NH RULES OF PROFESSIONAL CONDUCT:
Rule 1.0(k)
Rule 1.7
Rule 1.9
Rule 1.11
Rule 1.18
NH ETHICS COMMITTEE OPINIONS AND ARTICLES:

SUBJECTS:
Definition – screening
Conflicts of Interest
Duties to Former Clients
Special Conflicts of Interest for Former and Current Government Officers and Employees
Duties to Prospective Client

• By the NHBA Ethics Committee
This opinion was submitted for publication to the NHBA Board of Governors at its June
17, 2010 meeting.