Does a Virginia lawyer owe a duty of confidentiality to a prospective client who shared information only with the lawyer's secretary, and may the lawyer still represent the opposing party?

Plain-English summary

A woman, Ms. X, called a lawyer's office and spoke only with the secretary, who scheduled a consultation. On a second call Ms. X told the secretary she had told her "all the facts" about her case and mentioned that the lawyer had once represented her ex-husband's sister. The lawyer had already agreed to represent the ex-husband against Ms. X and declined her case. The lawyer and secretary said they held no confidential information about Ms. X.

The opinion concludes that information Ms. X gave the secretary is information the lawyer is obligated to keep confidential under Rule 1.6, so it cannot be used against her. Although no lawyer-client relationship formed, the committee follows its prior opinions (LEOs 629, 1453, 1546, 1794) holding that a prospective client reasonably expects confidentiality even where no engagement results. Rule 5.3(b) makes the lawyer responsible for ensuring the secretary's conduct is compatible with the lawyer's confidentiality duties, and without screening, information obtained by support staff is imputed to the firm's lawyers.

Drawing on LEO 1800, the committee directs the lawyer to screen the secretary: instruct her not to reveal any of Ms. X's information to the lawyer, use a different staff person for work on the ex-husband's matter, and send written notice to Ms. X or her counsel that these measures are in place. If the screen is breached and the lawyer learns Ms. X's confidential information, the lawyer may have to withdraw, because the duty owed to Ms. X (a third person to whom confidentiality is owed) could materially limit the representation under Rule 1.7(a)(2). The committee reiterates that within a firm a screen alone cures a client conflict only with client consent under Rule 1.7(b), apart from the Rule 1.10 departing-lawyer and Rule 1.11 government-lawyer exceptions.

In practice

The opinion holds that, under the Virginia rules as they stood at the time, a lawyer's duty of confidentiality under Rule 1.6 attaches to information a prospective client conveys to support staff, not only to a lawyer, because Rule 5.3 makes the lawyer answerable for the staff's handling of it. Per the opinion, the lawyer may proceed against the prospective client only by screening the staff member, reassigning the work, and notifying the prospective client; whether a disqualifying conflict ultimately exists depends on whether the screen was breached and what information the lawyer actually learned.

Common questions

Q: Is information given to a lawyer's secretary protected if the person never became a client?

A: Yes. Under LEO 1832, Rule 1.6 protects confidential information a prospective client shares, and Rule 5.3 makes the lawyer responsible for the secretary's compliance with that duty.

Q: Can the lawyer still represent the opposing party after the secretary took the call?

A: The opinion permits it only if the lawyer screens the secretary, instructs her not to reveal what the prospective client said, uses other staff on the matter, and notifies the prospective client or her counsel of the measures taken.

Q: What happens if the screen is breached?

A: The opinion states the lawyer may find it necessary to withdraw, because the duty owed to the prospective client could materially limit the representation under Rule 1.7(a)(2).

Q: Does a screen cure the conflict on its own?

A: The opinion reiterates that within a firm a screen alone cures a client conflict only with client consent under Rule 1.7(b), apart from the Rule 1.10 departing-lawyer and Rule 1.11 government-lawyer exceptions.

Background and rules framework

The opinion interprets Rule 1.6 (Model Rule 1.6), the duty of confidentiality, together with Rule 5.3 (Model Rule 5.3), which requires a lawyer to ensure that the conduct of nonlawyer assistants is compatible with the lawyer's professional obligations. It treats the prospective-client confidentiality duty recognized in its earlier opinions as triggered by disclosures to support staff, not just to the lawyer. The conflict analysis runs through Rule 1.7(a)(2) (material-limitation conflicts) and references Rules 1.9, 1.10, and 1.11 for the limits on curing imputed conflicts by screening.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.6 / Virginia Rule 1.6 (confidentiality of information)
• Model Rule 5.3 / Virginia Rule 5.3 (responsibilities regarding nonlawyer assistants)
• Model Rule 1.7 / Virginia Rule 1.7 (material-limitation conflicts; cure by consent)
• Model Rule 1.9 / Virginia Rule 1.9 (duties to former clients)

Other opinions cited:

• Virginia LEOs 629, 1453, 1546, 1794: prospective-client confidentiality expectations
• Virginia LEO 1800: screening support staff who carry an opposing party's confidences

See also

• VA LEO 1842: Confidential Information via Website and Voicemail
• ABA Formal Op. 492: Prospective-Client Duties
• ABA Formal Op. 90-358: Prospective Client Information
• ABA Formal Op. 510: Prospective-Client Conflicts

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1832.pdf

Original opinion text

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

Committee Opinion
May 10, 2007
LEGAL ETHICS OPINION 1832

POTENTIAL CONFLICT OF INTEREST
WHEN PROSPECTIVE CLIENT SPEAKS
ONLY WITH THE SECRETARY AND
HAS NO DIRECT CONTACT WITH THE
LAWYER.

You have presented a hypothetical request in which a year ago, a woman, Ms. X, called
a lawyer’s office for an initial consultation. Ms. X communicated only with the lawyer’s
secretary, who scheduled an appointment for Ms. X to meet with the lawyer. Ms. X
called the secretary a second time and advised the secretary that the lawyer had
previously represented her ex-husband’s sister. The secretary advised the lawyer of Ms.
X’s relationship to that former client. Prior to Ms. X’s second call, the ex-husband had
made an appointment to meet with the lawyer. The lawyer advised the secretary that he
would not take Ms. X’s case. The lawyer agreed to represent the ex-husband regarding
petitions filed by Ms. X.
Ms. X now objects to that representation. Ms. X says she told the secretary “all the
facts” about her case. Despite Ms. X’s claim that she told the secretary all about her case,
the lawyer and his secretary maintain they are in possession of no confidential
information about Ms. X.
With regard to this hypothetical scenario, you have asked the Committee to opine as to
whether it is ethically permissible for this lawyer to continue to represent the ex-husband
against Ms. X. Resolution of your question involves a determination of whether this
lawyer has a conflict of interest in representing the ex-husband after his office acquired
information from Ms. X. The source of the conflict of interest is the lawyer’s duty of
confidentiality under Rule 1.6. 1 As set out below, the Committee believes that Ms. X’s
communication with the secretary is information the lawyer is obligated to keep
confidential under Rule 1.6. Thus, any information obtained from Ms. X could not be
used by the lawyer in representing the ex-husband.
Based on the facts you present, there was no agreement, express or implied, that the
lawyer would undertake representation of Ms. X. 2 However, Ms. X’s contact with the
1

Rule 1.6 would require the lawyer and the secretary to preserve the confidentiality of any confidences and
secrets Ms. X claims to have imparted to the secretary. A lawyer has an ethical duty to ensure that nonlawyer employees comply with the duty of confidentiality. Rule 5.3.

2

Whether or not a lawyer-client relationship was created is a legal issue outside the purview of the
Committee. However, the Restatement (3d) of the Law Governing Lawyers, § 14 (2000) offers some
guidance:
A relationship of client and lawyer arises when:
(1) a person manifests to a lawyer the person’s intent that the lawyer provide legal
services for the person; and either:
(a) the lawyer manifests to the person consent to do so; or

Committee Opinion
May 10, 2007
law firm via the secretary does raise ethical obligations with respect to any confidential
information given the secretary.
In prior opinions, the Committee has stated that a person who consults with a lawyer
may reasonably expect that confidential information a person shares with a lawyer is
protected under Rule 1.6, even if the lawyer and client do not agree to a professional
engagement. See LEO 629 (1984) (A lawyer who learns confidences during a
professional discussion at a social engagement may not reveal the contents without the
client's consent); LEO 1453 (1992) (potential client’s initial consultation with lawyer
creates reasonable expectation of confidentiality which must be protected even if no
lawyer-client relationship arises in other respects); LEO 1546 (1993) (wife who had
initial consult with lawyer during which confidential information was disclosed precluded
another lawyer in the same firm from representing husband in divorce).
In LEO 1794 (2004), the Committee observed that the ethical obligation to protect
confidential information of a prospective client encourages people to seek early legal
assistance and such persons must be comfortable that the information imparted to a
lawyer while seeking legal assistance will not be used against them. That Ms. X in the
present scenario never retained the lawyer and never became a client does not relieve the
lawyer of this duty of confidentiality.
There is, however, a significant factual difference between the present scenario and that
of LEO 1794. In LEO 1794, the prospective client actually meets with the lawyer. In
contrast, in the present scenario, the prospective client speaks only with the secretary and
has no direct contact with the lawyer. The question then is whether the duties of Rule 1.6
are triggered by the provision of information to support staff rather than to a lawyer.
While the secretary in your scenario is not governed by the Rules of Professional
Conduct applicable to lawyers, Rule 5.3 (b) imposes a duty on the lawyer to ensure that
the secretary’s conduct is compatible with the professional obligations of the lawyer.
Comment [1] of that rule adds that: “[a] lawyer should give such assistants appropriate
instruction and supervision concerning the ethical aspects of their employment,
particularly regarding the obligation not to disclose information relating to
representation of the client. . . .” (emphasis added).

(b) the lawyer fails to manifest lack of consent to do so and the lawyer knows or
reasonably should know that the person reasonably relies on the lawyer to
provide the services; or
(2) a tribunal with the power to do so appoints the lawyer to provide the services.
See also LEO 1546 (1993) holding that a prospective client’s initial consultation with an
attorney creates an expectation of confidentiality that would conflict the firm if it later represented
the opposing party in the same matter.

Committee Opinion
May 10, 2007
The Committee applied these ethical precepts in LEO 1800. In that opinion, the
Committee analyzed whether the conflicts rules apply when a firm hires the secretary of
the law firm representing the opposing party in a litigation matter. The opinion
concludes that Rules 1.7 and 1.9 apply exclusively to lawyers, not to support staff.
However, that conclusion did not end the discussion or the lawyer’s duties in that
situation. The opinion looked to Rule 5.3, which governs a lawyer’s duty to supervise
support staff so that staff conduct is consistent with the lawyer’s ethical responsibilities.
In other words, lawyers are required to train support staff to preserve client confidences
and secrets.
In LEO 1800, the Committee opined that the lawyer in the hiring firm is directed to
screen the secretary from the matter so that the secretary will not disclose information
regarding the former employer’s client to the lawyer. For prospective clients to feel
comfortable divulging information about their legal matters to law firms, those clients
need assurance that the information will remain confidential, regardless of which
individual at the firm does the intake interview and/or initial consultation. Without
screening procedures, information obtained by support staff is imputed to the lawyers in a
firm.
Returning to analysis of the present scenario, your facts state that Ms. X claims to have
“told everything” to the secretary, but the lawyer and the secretary claim to have no
confidential information. Further, when the secretary advised the lawyer of Ms. X’s
relationship to a former client, the lawyer advised that he had already agreed to represent
the husband and that he would not represent Ms. X.
The Committee believes that LEO 1800 offers appropriate guidance in your scenario.
To avoid the imputation of confidential information to the lawyer, and possible
disqualification, the lawyer has an ethical duty to establish a screen between the secretary
and lawyer as to Ms. X and the ex-husband’s case. The lawyer must instruct the
secretary that she cannot reveal to the lawyer any confidential information obtained from
Ms. X. To preserve information protected by Rule 1.6, the lawyer must use another staff
person in lieu of the secretary for any work performed relating to the representation of the
ex-husband against Ms. X and should send a written communication to Ms. X or her
lawyer that these measures have been taken.
In the event that the ethics “screen” is breached and the lawyer learns confidential
information communicated by Ms. X to the secretary, the lawyer may find it necessary to
withdraw from representing the ex-husband. The lawyer’s duty of confidentiality to Ms.
X may materially limit the lawyer’s representation of the ex-husband, since he would be
foreclosed from using any information Ms. X may have given the secretary. See Rule 1.7
(a)(2) (a conflict of interest exists if there is a significant risk that the representation of
one or more clients will be materially limited by the lawyer’s responsibilities to another
client, a former client or a third person or by a personal interest of the lawyer) (emphasis
added). Even assuming that Ms. X is not a “client” or “former client” she is a third
person to whom the lawyer owes a duty of confidentiality which may “materially limit”
the lawyer’s representation of the ex-husband. Whether such a conflict exists depends, of

Committee Opinion
May 10, 2007
course, upon the extent that the “screen” was breached and the nature of the information
actually learned by the attorney.
For the protection of clients, the law firm, and public, the Committee recommends that
the firm train non-lawyer support staff to minimize confidential information obtained
from prospective clients before they can perform the necessary conflicts analysis.
In rendering this opinion the Committee continues to reiterate its position that if
confidential information learned by one lawyer in a firm results in disqualification that
disqualification is imputed to all lawyers in the firm and a screen can only be used to cure
a client conflict with client consent, pursuant to Rule 1.7 (b). Exceptions exist for
conflicts that are carried with a departing lawyer pursuant to Rule 1.10 and government
lawyers pursuant to Rule 1.11.
This opinion is advisory only, and not binding on any court or tribunal.