Must a lawyer keep confidential what a prospective client said in a consultation even if the lawyer was never hired, and can the lawyer be an impeachment witness?

Plain-English summary

The Board considered a lawyer who discussed a criminal matter with a person (X) in the presence of two others, was not hired, and was later asked to testify as an impeachment witness when X's story changed at a co-defendant's trial. The question was what confidentiality the lawyer owes the prospective client. The Board explained that the Rule 1.6 duty of confidentiality reaches current, former, and prospective clients, and that Prof. Cond. R. 1.18 extends confidentiality protection to a person who consults a lawyer about possible representation, even when no client-lawyer relationship results, regardless of how brief the consultation was. The Supreme Court of Ohio confirmed this expectation of confidentiality in Disciplinary Counsel v. Cicero.

The Board noted the limit built into the rules: under Rule 1.9, information may be used to a former or prospective client's disadvantage once it becomes generally known, but it stressed that information in a public record is not automatically "generally known." So absent informed consent confirmed in writing or general knowledge, the lawyer must protect the prospective client's information, which can include the client's identity and the nature of the matter.

On the impeachment-testimony question, the Board pointed to the statutory exception in R.C. 2317.02(A): if a client voluntarily testifies about a communication to a lawyer or the lawyer's advice, the lawyer may be compelled to testify on the same subject. Applied here, if X voluntarily testifies about the consultation and the lawyer is then compelled to testify, the lawyer may reveal only those confidences X testified to, or as the court orders. The Board declined to decide whether the presence of the two other people waived the attorney-client privilege, calling that a legal question for the court rather than the Board. The opinion withdrew Advisory Opinion 91-15.

In practice

The opinion holds that, under the Ohio rules as they stood at the time, the Rule 1.18 duty of confidentiality attaches to a prospective-client consultation even if the lawyer declines the matter, and the lawyer may not reveal that information without informed consent unless it is generally known (public-record status alone does not make it generally known). Per the opinion, where R.C. 2317.02(A) is triggered because the prospective client voluntarily testifies about the communication, a lawyer compelled to testify may reveal only the confidences the prospective client testified to or as the court orders. The opinion notes, citing Rule 1.18 cmt. [4], that a lawyer should limit the information a prospective client initially imparts, which reduces both confidences to preserve and conflict exposure.

Common questions

Q: Does a lawyer have to keep a consultation confidential if the person never becomes a client?

A: The opinion concluded yes; Prof. Cond. R. 1.18 protects information learned in a prospective-client consultation even if no representation forms.

Q: Can the lawyer disclose the information once it is in a public record?

A: The opinion concluded not automatically; information becomes usable to a prospective client's disadvantage only when generally known, and the Board emphasized that presence in a public record does not necessarily make it generally known.

Q: Can the consulted-but-not-hired lawyer be an impeachment witness against the prospective client?

A: The opinion concluded that under R.C. 2317.02(A), if the prospective client voluntarily testifies about the communication and the lawyer is then compelled to testify, the lawyer may reveal only those confidences the client testified to or as the court orders.

Q: Did the presence of other people in the consultation waive the privilege?

A: The opinion concluded that this is an evidentiary question of law for the court, not one the Board has authority to resolve.

Background and rules framework

The opinion interprets Ohio Prof. Cond. R. 1.18 (duties to a prospective client) together with Rule 1.6 (confidentiality of information) and Rule 1.9 (duties to former clients) (Model Rules 1.18, 1.6, 1.9), and reads them against the statutory attorney-client privilege and its waiver exception in R.C. 2317.02(A). It distinguishes the broad ethical duty of confidentiality from the narrower evidentiary privilege.

Citations and references

Rules of Professional Conduct:

• Ohio Prof. Cond. R. 1.18 (duties to a prospective client), incl. 1.18(a), (b) and cmts. [3], [4] (Model Rule 1.18)
• Ohio Prof. Cond. R. 1.6 (confidentiality of information), incl. 1.6(a) and cmt. [1] (Model Rule 1.6)
• Ohio Prof. Cond. R. 1.9 (duties to former clients), incl. 1.9(c) (Model Rule 1.9)

Statutes:

• R.C. 2317.02(A) (attorney-client privilege; waiver when the client voluntarily testifies)

Cases:

• Disciplinary Counsel v. Cicero, 134 Ohio St.3d 311, 2012-Ohio-5457, 982 N.E.2d 650, prospective client's reasonable expectation of confidentiality
• Taylor v. Sheldon, 172 Ohio St. 118, 173 N.E.2d 892 (1961), privilege extends to preliminary conference before employment is accepted

Other opinions cited:

• ABA Formal Op. 90-358 (1990): duty to preserve a prospective client's confidences and resulting disqualification
• Utah State Bar Op. 05-04; State Bar of Wisconsin Op. EF-10-03; Pennsylvania Bar Op. 96-55; Massachusetts Bar Op. 07-01
• Ohio BPC Adv. Op. 2013-04: "generally known" standard under Rule 1.9

See also

• Ohio BPC Op. 1991-015: Confidences of a Prospective Client and Impeachment Testimony (withdrawn by this opinion)
• Ohio BPC Op. 1999-002: Unencrypted Email and Client Confidentiality
• Ohio BPC Op. 2016-002: Duty to Report Unprivileged Knowledge of Misconduct

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op_16-010.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

OHIO BOARD OF PROFESSIONAL CONDUCT
OPINION 2016-10
Issued December 9, 2016

      Duty to Preserve Confidential Information of a Prospective Client

Syllabus of Opinion:

A lawyer owes a duty of confidentiality under Prof.Cond.R. 1.18, to a prospective client
regarding information learned in a preliminary conference between the prospective client
and the lawyer. Prof.Cond.R. 1.18 extends the protections of confidentiality and attorney-
client privilege to a person who consults with a lawyer for legal representation, even if
the lawyer is not retained to represent the prospective client. Thus, a lawyer may not
reveal information learned in a consultation unless the prospective client gives informed
consent. If a client voluntarily testifies concerning a communication made by him, as a
prospective client, to a lawyer or concerning the lawyer’s advice to him, and then the
lawyer is compelled to testify on the same subject under R.C. 2317.02, the lawyer is
allowed, under Prof.Cond.R. 1.6, to reveal only those confidences to which the
prospective client voluntarily testified or as otherwise ordered by the court.

This nonbinding advisory opinion is issued by the Ohio Board of Professional Conduct in
response to a prospective or hypothetical question regarding the application of ethics rules
applicable to Ohio judges and lawyers. The Ohio Board of Professional Conduct is solely
responsible for the content of this advisory opinion, and the advice contained in this opinion
does not reflect and should not be construed as reflecting the opinion of the Supreme Court
of Ohio. Questions regarding this advisory opinion should be directed to the staff of the Ohio
Board of Professional Conduct.
OHIO BOARD OF PROFESSIONAL CONDUCT
65 SOUTH FRONT STREET, 5TH FLOOR, COLUMBUS, OH 43215-3431
Telephone: 614.387.9370 Fax: 614.387.9379
www.supremecourt.ohio.gov/boards/boc

PAUL M. DE MARCO RICHARD A. DOVE
CHAIR DIRECTOR
WILLIAM J. NOVAK D. ALLAN ASBURY
VICE- CHAIR SENIOR COUNSEL
HEIDI WAGNER DORN
COUNSEL

                                 OPINION 2016-10
                              Issued December 9, 2016
                              Withdraws Opinion 91-15

       Duty to Preserve Confidential Information of a Prospective Client

SYLLABUS: A lawyer owes a duty of confidentiality under Prof.Cond.R. 1.18, to a
prospective client regarding information learned in a preliminary conference between the
prospective client and the lawyer. Prof.Cond.R. 1.18 extends the protections of
confidentiality and attorney-client privilege to a person who consults with a lawyer for
legal representation, even if the lawyer is not retained to represent the prospective client.
Thus, a lawyer may not reveal information learned in a consultation unless the
prospective client gives informed consent. If a client voluntarily testifies concerning a
communication made by him, as a prospective client, to a lawyer or concerning the
lawyer’s advice to him, and then the lawyer is compelled to testify on the same subject
under R.C. 2317.02, the lawyer is allowed, under Prof.Cond.R. 1.6, to reveal only those
confidences to which the prospective client voluntarily testified or as otherwise ordered
by the court.

QUESTION PRESENTED: What ethical obligation does a lawyer have to preserve a
prospective client’s confidential information when the lawyer is called to testify as an
impeachment witness? The facts presented are as follows: a lawyer discusses possible
representation in a criminal matter with X in the presence of Y and Z, during which time
all of the facts of the case are discussed; X does not retain that lawyer, but instead retains
another lawyer; X is convicted; Y is subsequently indicted on a similar charge arising out
of the same facts as X's case; X's story is now different from that told to the lawyer he did
not hire. The question is whether the lawyer whom X consulted, but did not hire, can
testify as an impeachment witness regarding their conversation which took place in the
Op. 2016-10 2

presence of Y and Z, assuming that at Y's trial X denies telling the lawyer a different story
than X now tells.1

APPLICABLE RULES: Prof.Cond.R. 1.6, 1.9, 1.18, R.C. 2317.02(A).

OPINION: The Rules of Professional Conduct are clear regarding a lawyer’s duty to
preserve the confidentiality of information related to the representation of a client:

            A lawyer shall not reveal information relating to the
            representation of a client, including information protected by
            the attorney-client privilege under applicable law, unless the
            client gives informed consent, the disclosure is impliedly
            authorized in order to carry out the representation, or the
            disclosure is permitted by division (b) or required by division
            (d) of this rule.

Prof.Cond.R. 1.6(a).

    The duty of confidentiality applies not only to a lawyer’s current clients, but also

to a lawyer’s former and prospective clients. Prof.Cond.R. 1.6, Cmt [1], 1.9(c)(2), 1.18. A
“prospective client” is defined as “[a] person who consults with a lawyer about the
possibility of forming a client-lawyer relationship with respect to a matter.” Prof.Cond.R.
1.18(a). Even if a lawyer-client relationship does not form after a consultation, a lawyer
is prohibited from using or revealing information learned in the consultation with the
prospective client, except as permitted by Rule 1.9. Prof.Cond.R. 1.18(b). This duty exists
regardless of the length of the initial consultation. Prof.Cond.R. 1.18, Cmt. [3].
Additionally, the Supreme Court of Ohio has held that a lawyer owes a prospective client
a reasonable expectation of confidentiality, and therefore, must not reveal confidential
information disclosed to the lawyer by a prospective client. Disciplinary Counsel v. Cicero,
134 Ohio St.3d 311, 2012-Ohio-5457, 982 N.E.2d 650, ¶¶ 13, 15.

1
The questions presented in this advisory opinion are the same or substantially similar to the questions
presented in Adv.Op. 91-15.
Op. 2016-10 3

   Under Prof.Cond.R. 1.9, which prescribes a lawyer’s duties to former clients, a

lawyer is prohibited from using information relating to a representation to the
disadvantage of a former client, except if the former client gives informed consent, or if
the information has become generally known. Prof.Cond.R. 1.9(c). The presence of
information “in the public record does not necessarily mean that the information is
generally known within the meaning of Rule 1.9(c).” See Bennett, Cohen &
Whittaker, Annotated Model Rules of Professional Conduct, 175 (7th Ed. 2011), citing Pallon v.
Roggio, D.N.J. Nos. 04-3625 (JAP) and 06-1068 (FLW), 2006 WL 2466854 (Aug. 24,
2006); Steel v. Gen. Motors Corp., 912 F.Supp. 724 (D.N.J. 1995); In re Anonymous, 932 N.E.2d
671 (Ind. 2010). “[T]he fact that information has become known to some others does not
deprive it of protection if it has not become generally known in the relevant sector of the
public.” Adv. Op. 2013-04., citing 1 Restatement, Section 59, Comment d. As a result, a
lawyer may only reveal information related to a prospective client if the client provides
informed consent confirmed in writing or if the information is generally known.

   A prudent lawyer should take adequate measures to limit the information initially

imparted by a prospective client. Prof.Cond.R. 1.18, Cmt. [4]. This not only ensures that
the lawyer will have fewer confidences to preserve, but also prevents potential conflicts
of interest involving the prospective client and other clients or prospective clients of the
lawyer. Id.

   Similarly, the ABA has concluded that a lawyer has a duty under Model Rule 1.6

to preserve the confidentiality of information received in a consultation with a
prospective client even if no legal services are provided and the representation is
declined. Absent client consent, a lawyer may be precluded from a current or future
representation if that representation would be materially limited by the lawyer's duty to
protect the prospective client's information. ABA Formal Opinion 90-358 (1990).

   Other jurisdictions have found that a lawyer must preserve the confidentiality of

information imparted by someone who consults him but does not retain him. Utah State
Bar Op. 05-04 (9/8/05); State Bar of Wisconsin Op. EF-10-03 (12/17/10); Pennsylvania Bar
Assn. Op. 96-55 (4/8/96). At least one jurisdiction has concluded that a lawyer who
receives an e-mail from a prospective client through a link on the firm web site, which
contains no disclaimers warning that the e-mailed information may not be confidential
Op. 2016-10 4

and will not impede adverse representation, must keep the information confidential.
Massachusetts Bar Assn. Op. 07-01 (5/23/07). Even if the lawyer declines the
representation, both he and the other lawyers in the firm are disqualified from
representing an adversary of the prospective client if maintaining the confidentiality of
the information in the e-mail would materially limit the representation. Id.

   Similar to the duty of confidentiality, the statutory attorney-client privilege

extends to a person's communication with an attorney made during a preliminary
conference prior to the actual acceptance or rejection by the attorney of the employment.
Taylor v. Sheldon, 172 Ohio St. 118, 173 NE 2d 892 (1961). However, it is not within the
Board's authority to answer the evidentiary question of whether or not the presence of Y
and Z in this scenario constitute a waiver of the statutory and common law attorney-
client privilege, as it is a question of law for the court to determine.

ANALYSIS: The duty of confidentiality under the Rules of Professional Conduct
provides protection to a wider scope of client information than is afforded by the
attorney-client evidentiary privilege. Prof.Cond.R. 1.6, 1.9, 1.18; see also, ABA Formal Op.
90-358. Rule 1.6(a) extends the general protection to all “information relating to
representation” of the client no matter how or when obtained. Confidentiality under
Prof.Cond.R. 1.6 applies to protect information imparted by a prospective client seeking
to engage the lawyer's services even though no legal services are performed and the
representation is declined. Prof.Cond.R. 1.18.

   Under some circumstances, the provisions of the Rules of Professional Conduct

prohibit the lawyer from revealing the identity of the prospective client and the nature of
the matter for which representation is sought. The protected information could under
some circumstances be more significant than the mere identity of the client, which is not
usually protected by the attorney-client evidentiary privilege. See, e.g., In re Grand Jury
Proceeding, 680 F.2d 1026, 1027 (C.A. 5 1982). Unless the prospective client is represented
by the lawyer in other ongoing matters, however, the Rules of Professional Conduct do
not prohibit the use, to the disadvantage of the prospective client, of information relating
to the representation once the information becomes generally known. Prof.Cond.R. 1.9,
1.18. This includes information that may be publicly available. TBC Westlake, Inc. v.
Hamilton Cty. Bd. of Revision, 81 Ohio St.3d 58, 62–63, 689 N.E.2d 32 (1998) (“common-law
Op. 2016-10 5

privileges, such as the attorney-client privilege, are state laws that prohibit release
of public records” under Ohio's Public Records Act); State ex rel. Leslie v. Ohio Hous. Fin.
Agency, 105 Ohio St.3d 261, 2005-Ohio-1508, ¶ 18; see e.g., Reed v. Baxter, 134 F.3d 351, 356
(6th Cir. 1998); State ex rel. Nix v. Cleveland, 83 Ohio St.3d 379, 383, 1998-Ohio-290; TBC
Westlake, Inc. v. Hamilton Cty. Bd. of Revision, 81 Ohio St.3d 58, 1998-Ohio-445; State ex rel.
Besser v. Ohio State Univ., 87 Ohio St.3d 535, 2000-Ohio-475; State ex rel. Thomas v. Ohio
State Univ., 71 Ohio St.3d 245, 1994-Ohio-261.

   In answering the questions raised, the lawyer would be bound by the Rules of

Professional Conduct to protect the confidences and secrets of X and could not reveal
them unless an exception applies or consent is given. Under Prof.Cond.R. 1.18, a lawyer
only may reveal information if the client gives informed consent, confirmed in writing,
or if the information is generally known. Prof.Cond.R. 1.9, 1.18. Under the exception
created within R.C. 2317.02(A), if a client voluntarily testifies concerning a
communication made by him to his lawyer in that relationship or the lawyer’s advice to
him, then the lawyer may be compelled to testify on the same subject. Thus, if X
voluntarily testifies concerning a communication made by him, as a prospective client, to
a lawyer or concerning the lawyer’s advice to him, and then the lawyer is compelled to
testify on the same subject under R.C. 2317.02, the lawyer is allowed, under Prof.Cond.R.
1.6, to reveal only those confidences to which the prospective client voluntarily testified
or as otherwise ordered by the court.

CONCLUSION: The protection of confidentiality under Prof.Cond.R. 1.6, as well as the
statutory attorney-client privilege, extend to communications in a preliminary conference
between a prospective client and a lawyer. Prof.Cond.R. 1.18. Lawyers owe a prospective
client a reasonable expectation of confidentiality, and therefore, must not reveal
confidential information disclosed to the lawyer by a prospective client. Disciplinary
Counsel v. Cicero, 2012-Ohio-5457, ¶¶ 13, 15. Accordingly, the protections of the Rules of
Professional Conduct’s confidentiality and prospective client rules and the attorney-
client privilege extend to a person who consults with a lawyer regarding legal
representation even though the lawyer is not hired to represent the prospective client. If
a client voluntarily testifies concerning a communication made by him, as a prospective
client, to a lawyer or concerning the lawyer’s advice to him, and then the lawyer is
compelled to testify on the same subject under R.C. 2317.02, the lawyer is permitted,
Op. 2016-10 6

under Prof.Cond.R. 1.6, to reveal only those confidences to which the prospective client
voluntarily testified or as otherwise ordered by the court.