Does a Virginia lawyer owe confidentiality after an initial consultation, and can a spouse 'taint shop' to disqualify every divorce lawyer?

Plain-English summary

In a small community with few family lawyers, a husband planning divorce visited each family law attorney in turn, sharing his situation with no intent to hire any of them, having already decided to retain Attorney A; his goal was to keep his wife from finding counsel. The wife had earlier consulted Attorney A, signing a disclaimer that the initial interview created no attorney-client relationship, and disclosed financial and personal information bearing on custody before A ran a conflicts check and declined her because he represented the husband. The wife then retained Attorney B, who had been one of the lawyers the husband visited. The committee was asked whether either lawyer had to withdraw.

The committee holds that Rule 1.6 confidentiality is not limited to clients who actually retain the lawyer. Confidentiality is a "bedrock principle," and the Rules' "Scope" section and Comment 2 confirm the duty may attach when a lawyer agrees to consider whether to take a matter, to encourage people to seek early legal help. Citing a long line of LEOs and Gay v. Luihn Food Systems, the committee reaffirms that an initial consultation creates an expectation of confidentiality the lawyer must protect even where no attorney-client relationship arises.

Applying this, Attorney A received the wife's confidential, custody-relevant information during her consultation, so he may not represent the husband against her unless she consents to his use of that information. The committee holds A's disclaimer ineffective: it disclaimed only the formation of an attorney-client relationship, not confidentiality, and confidentiality does not depend on that relationship. The committee notes a properly drafted disclaimer could work, but only if it clearly shows the prospective client's informed consent to the lawyer's use of Rule 1.6 information. Attorney A must withdraw absent the wife's consent.

Attorney B is different. The husband did not consult B to obtain legal services; he had already chosen Attorney A and met B only to disqualify him. That bad-faith purpose does not create the reasonable expectation of confidentiality Rule 1.6 protects, so B owes the husband no confidentiality duty and need not withdraw. The committee adds that a lawyer who directed a client to undertake this strategic elimination of opposing counsel would violate Rule 3.4(j) (harassing or maliciously injuring another) and, through Rule 8.4(a), could not escape that by having the client do it.

In practice

The opinion holds that, under the Virginia rules as they stood at the time, an initial consultation triggers the Rule 1.6 duty of confidentiality even when no attorney-client relationship forms, so a lawyer who receives a prospective client's material confidential information cannot later represent the adversary absent consent. Per the opinion, a disclaimer that addresses only the attorney-client relationship does not waive confidentiality; to be effective, a disclaimer must show informed consent to the lawyer's use of protected information. The opinion also holds that a consultation undertaken in bad faith to conflict out a lawyer creates no protectable expectation, and that orchestrating such "taint shopping" violates Rule 3.4(j) (and Rule 8.4(a) when done through the client).

Common questions

Q: Does a lawyer owe confidentiality after a free initial consultation?

A: The opinion says yes. Rule 1.6 confidentiality attaches to an initial consultation even when no attorney-client relationship forms and no fee is paid, because the consultation creates a reasonable expectation of confidentiality.

Q: Can a disclaimer at the start of a consultation prevent disqualification?

A: The opinion says only a properly drafted one. A disclaimer that addresses only the attorney-client relationship does not waive confidentiality; it must clearly show the prospective client's informed consent to the lawyer's use of protected information.

Q: Can a spouse meet with every local lawyer just to conflict them out?

A: The opinion says that bad-faith purpose creates no protectable confidentiality, so a lawyer the spouse consulted only to disqualify is not barred from representing the other spouse and need not withdraw.

Q: Is it improper for a lawyer to send a client to do this?

A: The opinion says yes. A lawyer who directs a client to consult opposing counsel only to disqualify them violates Rule 3.4(j), and Rule 8.4(a) prevents the lawyer from avoiding that by acting through the client.

Background and rules framework

The opinion interprets Rule 1.6 (Model Rule 1.6, confidentiality) as attaching to initial consultations, drawing on the Rules' "Scope" section and Comment 2, and notes Rule 1.9 (Model Rule 1.9) would also apply where a consultation forms an attorney-client relationship. It applies Rule 3.4(j) (Model Rule 3.4, action serving only to harass or injure) and Rule 8.4(a) (Model Rule 8.4, acting through another), and relies on Gay v. Luihn Food Systems and a long line of Virginia LEOs.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.6 / Virginia Rule 1.6(a) (confidentiality attaching to initial consultations)
• Model Rule 1.9 / Virginia Rule 1.9 (former-client conflicts, if a relationship forms)
• Model Rule 3.4 / Virginia Rule 3.4(j) (action serving only to harass or maliciously injure)
• Model Rule 8.4 / Virginia Rule 8.4(a) (violating the rules through another's acts)

Cases:

• Gay v. Luihn Food Systems, Inc., 54 Va. Cir. 468 (Isle of Wight County 2001) (confidentiality of initial consultations)

Other opinions cited:

• Virginia LEOs 1546, 1643, 1697, 1702, 1749, 1787, 1642, 1638, 1633, 1613 and others (confidentiality of initial consultations); Vermont Op. 96-9; Kansas Op. 91-4

See also

• VA LEO 1832: Prospective Client Tells Only Secretary
• VA LEO 1811: Former Client File Confidentiality
• ABA Formal Op. 510: Avoiding Imputation of a Prospective-Client Conflict

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1794.pdf

Original opinion text

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

Committee Opinion
June 30, 2004
LEGAL ETHICS OPINION 1794

CONFIDENTIALITY OF INITIAL
CONSULTATION .

You have presented a hypothetical situation in which a husband and wife are planning
to divorce. They live in a small community with a limited number of attorneys. The
husband wishes to prevent his wife from obtaining adequate counsel. Therefore, he visits
each family law attorney in succession, shares his situation, but with no intent to hire
them. He in fact already knows that he will retain Attorney A. The wife goes to one of
the visited attorneys, Attorney B, seeking representation. When Attorney B writes the
husband’s attorney (A) establishing B’s representation of the wife, Attorney A sends a
letter back stating the wife’s attorney (B) has a conflict of interest and must withdraw
from the representation.
Prior to hiring her attorney, the wife first had gone to Attorney A for representation.
Before their initial interview, Attorney A had the wife sign a disclaimer stating that:
I understand that my initial interview with this attorney does not create
an attorney/client relationship and that no such relationship is formed
unless I actually retain this attorney.
He then listened to her story. After the interview, the attorney did a conflicts check,
and announced he could not represent her as he already represented her husband. As part
of their discussion, the wife had shared information regarding her finances and her
personal life, including details that would relate to child custody issues. The wife tells
her own attorney, Attorney B, of that appointment, and he writes Attorney A and asks
him to withdraw from representing the husband.
Under the facts presented you have asked the committee to opine as to whether either
attorney needs to withdraw from this matter.
Rule 1.6(a) establishes the basic duty of client confidentiality:
A lawyer shall not reveal information protected by the attorney-client
privilege under applicable law or other information gained in the
professional relationship that the client has requested be held inviolate
or the disclosure of which would be embarrassing or would be likely to
be detrimental to the client unless the client consents after consultation,
except for disclosures that are impliedly authorized in order to carry out
the representation, and except as stated in paragraphs (b) and (c).
The committee notes that the exceptions outlined in paragraphs (b) and (c) are not at
issue in the present hypothetical.
At first blush, Rule 1.6 may seem to apply only to those instances where the potential
client actually hires the attorney. The committee opines that such a literal reading of
Rule 1.6 is too narrow. This committee has on more than one occasion stressed the

Committee Opinion
June 30, 2004
importance of an attorney’s duty of confidentiality as a “bedrock principle of legal
ethics.” See, LEOs ##1643, 1702, 1749, and 1787. As such, the principle should be
interpreted broadly to assure that the public feels safe in providing personal information
to attorneys to obtain legal services. The “Scope” section of the Rules of Professional
Conduct specifically references application of Rule 1.6’s confidentiality duty to the
context of initial consultations. That section states, in pertinent part:
Most of the duties flowing from the client-lawyer relationship attach
only after the client has requested the lawyer to render legal services
and the lawyer has agreed to do so. But there are some duties, such as
that of confidentiality under Rule 1.6, that may attach when the lawyer
agrees to consider whether a client-lawyer relationship shall be
established.
This committee has consistently applied Rule 1.6 to initial consultations in prior
opinions. The court in Gay v. Lihuin Food Systems, Inc., 54 Va. Cir. 468 (Isle of Wight
County 2001) agreed with that line of opinions and outlined them as follows:
A long line of Legal Ethics Opinions issued by … the Virginia State
Bar likewise recognizes that a prospective client's “initial consultation
with an attorney creates an expectation of confidentiality which must
be protected by the attorney even where no attorney-client relationship
arises in other respects.” Va. Legal Ethics Op. 1546, LE Op. 1546
(Aug. 12, 1993); see also Va. Legal Ethics Ops. 1697, LE Op. 1697
(June 24, 1997); 1642, LE Op. 1642 (June 9, 1995); 1638, LE Op. 1638
(April 19, 1995); 1633, LE Op. 1633 (June 9, 1995); 1613, LE Op.
1613 (Jan. 13, 1995); 1453, LE Op. 1453 (March 24, 1992); 1189, LE
Op. 1189 (Nov. 17, 1988); 1039, LE Op. 1039 (Feb. 17, 1988); 949, LE
Op. 949 (July 8, 1987); 629, LE Op. 629 (Nov. 13, 1984); 452, LE Op.
452 (Apr. 12, 1982); 318, LE Op. 318 (June 6, 1979). An attorney,
therefore, has a “duty to keep confidential those consultations that
occur outside formal attorney-client relationships which nonetheless
create an expectation of confidentiality.” Va. Legal Ethics Op. 1642,
LE Op. 1642 (June 9, 1995).
Gay v. Luihn Food Systems, Inc., 5 Cir. CL00121, 54 Va. Cir. 468 (2001). 1
As stated in Comment 2 to Rule 1.6, the ethical obligation to hold inviolate confidential
information of the client “encourages people to seek early legal assistance.” To enable
that result, people must be comfortable that the information imparted to an attorney while
seeking legal assistance will not be used against them.
1

This Virginia view that the duty of confidentiality may be triggered by an initial consultation is shared by
other state bars, such as Vermont and Kansas. See, Vermont Legal Ethics Opinion 96-9; Kansas Legal
Ethics Opinion 91-4.

Committee Opinion
June 30, 2004

In the present scenario, Attorney A agreed to an interview with the wife as she was
seeking legal representation in that divorce. As part of that interview, she disclosed to
the attorney information regarding her finances and her personal life, in particular
information that would be relevant to the child custody issue that is part of this divorce.
As Attorney A received confidential information that is pertinent to his representation of
the husband against the wife, this attorney may not represent the husband unless the wife
consents to his use of the information in this case.
This committee is not dissuaded from that conclusion by the use of a disclaimer by
Attorney A. The disclaimer he provided to the wife for signature disclaimed only that no
attorney/client relationship had been formed; it did not on its face address confidentiality.
As outlined earlier in this opinion, an attorney/client relationship is not required for the
duty of confidentiality to be triggered; that duty arises also during a person’s initial
consultation with a lawyer in seeking possible representation if facts are such that no
attorney/client relationship is formed. Accordingly, the disclaimer of an attorney/client
relationship by this attorney is ineffective to permit him the unconsented use of
information imparted by the wife. As stated above, he can only use this information, and
in turn, represent the husband, only if the wife consents to that use, after consultation.
The committee notes that the conclusion that this disclaimer failed to eliminate the
attorney’s duty of confidentiality is limited to this particular disclaimer. While general
disclaimers regarding the attorney/client relationship may not be effective, there may be
others that would be. To be effective, the disclaimer must clearly demonstrate that the
prospective client has given informed consent to the attorney’s use of confidential
information protected under Rule 1.6. Nonetheless, in the present scenario, as the
particular disclaimer used failed to address the confidentiality of information provided
and as important information was communicated by the wife to Attorney A, A’s duty to
keep that information confidential prevents A from properly representing the husband,
absent the wife’s consent. Attorney A must withdraw from the representation unless that
consent from the wife is obtained. 2
Your request also inquires whether Attorney B has a conflict of interest arising from his
earlier appointment with the husband. The potential for a conflict of interest for
Attorney B is distinguishable from that for Attorney A. The basis for the conclusions
drawn in the discussion of Attorney A’s conflict is that the potential client (in that
2

This Committee recommends the detailed advice provided by the Kansas Bar as to how to avoid conflicts
arising from initial consultations in Kansas Ethics Opinion 91-04. In summary, that advice is as follows:
1) Run a conflicts check before the initial consultation;
2) Caution the potential client not to provide confidential information at that point;
3) Ask whether the potential client has met with other attorneys;
4) Send a “non-engagement” letter if declining the representation; and
5) Be prepared for responding to a motion to disqualify should the opposing party
become a client.

See, Kansas Legal Ethics Opinion 91-04

Committee Opinion
June 30, 2004
discussion, the wife) has a reasonable expectation of confidentiality. The committee
maintains that when most members of the public contact a lawyer to discuss obtaining
legal services from that lawyer, those members of the public assume the details of the
conversation will remain private. However, the husband did not meet with Attorney B
for the legitimate purpose of obtaining legal representation; he in fact had already
decided he would retain Attorney A. His primary purpose in meeting with Attorney B
was to preclude him from representing the wife. The husband’s purpose does not create
the sort of “reasonable expectation of confidentiality” Rule 1.6 exists to protect.
Accordingly, no duty of confidentiality is created for Attorney B out of the visit with this
husband who misrepresented his purpose for the appointment. The committee opines that
as Attorney B has no duty to maintain the confidentiality of information received from
the husband, no conflict of interest was triggered by that initial consultation. Attorney B
is not required to withdraw. 3
While not present in this hypothetical, the committee notes that were an attorney to
direct a new client to undertake this sort of strategic elimination of attorneys for the
opposing party, that attorney would be in violation of Rule 3.4(j)’s prohibition against
taking any action on behalf of a client “when the lawyer knows or when it is obvious that
such action would merely serve to harass or maliciously injure another.” That such an
attorney would not himself be attending the initial consultations does not remove the
attorney from ethical impropriety; Rule 8.4(a) establishes that it is improper for an
attorney to violate the rules through the actions of another.
Committee Opinion
June 30, 2004

3

The Committee notes that in analyzing the present hypothetical, Rule 1.6 was the pertinent authority.
Rule 1.9 was not applicable as, under the facts provided, neither party was a former client of the opposing
counsel. However, in any situation where the initial consultation does create an attorney/client relationship,
Rule 1.9 would need to be considered in addition to Rule 1.6.