by Keith A. Call
Whenever you consult with a prospective client and decline the representation (or are not hired), there are several things you should consider and do. Here is a list of three of the most important things you should remember.
Keep confidences and follow URPC 1.18 if you decide to represent an adverse party.
You have an obligation to keep the confidences of a prospective client if you decide not to represent him or her. Utah Rule of Professional Conduct 1.18, adopted in 2005, firmly establishes that a duty of confidentiality attaches when a person discusses with a lawyer the possibility of forming a client-lawyer relationship, even if no client-lawyer relationship is ever established. Do not “use or reveal” information you learn in the consultation with a prospective client, except as specifically allowed by Rules 1.6 and 1.9. Protect it the same as you would protect information learned from an actual client.
May you or another lawyer in your firm subsequently represent someone directly adverse to your former prospective client? The answer is “yes, but only if certain conditions are met.” Rule 1.18 prevents you (or another lawyer in your firm) from representing a client with interests materially adverse to those of the prospective client in the same or substantially related matter, unless: (i) you received no information from the prospective client that could be significantly harmful to the prospective client, (ii) you obtain informed consent (in writing) from both the client and prospective client, or (iii) the “infected” lawyer received no more disqualifying information than was reasonably necessary, is adequately screened, receives no apportionment of the fee, and the prospective client is promptly notified in writing. (Consult Rule 1.18 for all the fine details.) Note that these provisions are slightly more liberal than the Rule 1.9 counterpart dealing with former clients.
Send a declination letter.
There is no ethical rule that strictly requires a declination letter when you decline representation (or when you are not hired). But it is always a good idea to send one. For an example of how a declination letter might have prevented a large malpractice judgment against a law firm, see Togstad v. Vesely, Otto, Miller & Keefe, 291 N.W. 2d 686 (Minn. 1980) (per curiam).
A “best practice” would be for you to send a declination letter whenever you decline a request for representation, whenever you provide services to less than all of the related parties in a case or transaction, whenever a third person might claim to be the beneficiary of your services, or when there is a risk that a claim for negligent misrepresentation might be made. See Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice, § 2:12 (2010 ed., West). Failure to do so would not, of course, automatically result in a client-lawyer relationship, but doing so can sure help avoid headaches.
Your declination letter should clearly state that you do not represent the former prospective client (i.e., that no client-lawyer relationship was formed), that you did not receive any confidential information (or that it was limited), and that you did not receive (or are returning) the prospective client’s documents. If applicable, it is also a good idea to inform the prospective client of important deadlines, such as statutes of limitation or deadlines for responding to a complaint. Avoid expressing opinions about the merits of the matter in your letter.
Keep track of prospective clients in your conflict database.
Even if you decline the representation, it is important to keep a record of prospective clients with whom you have communicated. Failure to do this can allow unknown conflicts to slip through the door and make compliance with your obligations under Rule 1.18 much more difficult. Keeping track of prospective clients in your database can help you recognize potential problems before they mature into real problems.
Following these simple guidelines can help you avoid misunderstandings and potential claims. It is also good (prospective) customer service.