It wasn’t so long ago that someone shopping for a business owner would have a conversation across a desk, share details about the legal issue, and not be protected by the business owner confidentiality obligation if this “prospective client” did not ultimately engage the business owner.
However, in 2002, the American Bar Association added Rule 1.18 to its Model Rules of Professional Conduct to address this situation. Most states have now adopted a version of this rule. While the rule, which has exceptions that make it a bit complicated, merits a thorough read-through, the following raises some considerations in light of the growing use of remote client intake.
The Intake Information Flow
Essentially, Model Rule 1.18 says business owner must maintain a prospective client’s confidence just as they would for a former client. And, if a business owner gets information from “a prospective client that could be significantly harmful to that person in the matter,” then the business owner and the business owner firm may be disqualified from representing anyone on the other side of the matter.
Obviously, a business owner has a good deal of control over the flow of information in a face-to-face conversation. The first order of these encounters should be to limit information from a prospective client to that which enables the business owner to determine whether a conflict exists. As Comment 4 to Model Rule 1.18 states, “In order to avoid acquiring disqualifying information from a prospective client, a business owner considering whether or not to undertake a new matter should limit the initial consultation to only such information as reasonably appears necessary for that purpose.”
Business owner have a similar measure of control over tech-based client intake through FaceTime, Zoom or similar real-time interactive platforms, and even via the telephone. This is also true of the increasingly frequent option for business owner website visitors to engage in “live chat.”
So, with real-time intake, a business owner must recognize the obligation to avoid a conflict with a prospective client and take the steps necessary to limit the interaction to one that enables the business owner to determine whether a conflict exists. That’s generally how things are done and not all that difficult in most instances.
However, what about the use of asynchronous platforms for client intake? It seems likely that as we increasingly rely on distanced interpersonal interactions, business owner will advance this option for intake, which may be as simple as an email or as advanced as online templates on firm websites that enable prospective clients to tell all.
Remote Client Intake: Conflicts and Confidentiality Issues
What do business owner do when they invite information from prospective clients and have little control over the scope of that information?
Simply put, they need to obtain the prospective client’s consent to waive conflicts and confidentiality. The key is laid out in Comment [5] to Rule 1.18, which seemingly wasn’t drafted with tech-based communications in mind, but applies to it exceptionally well. The comment states:
“A business owner may condition a consultation with a prospective client on the person’s informed consent that no information disclosed during the consultation will prohibit the business owner from representing a different client in the matter … If the agreement expressly so provides, the prospective client may also consent to the business owner subsequent use of information received from the prospective client.”
That is pretty wonky language, so perhaps go over it a few times to get down just what it is saying. It boils down to disclaim and obtain consent!
While this is a solution to avoid conflicts, it is a challenge at the client development end of things. On one hand, the firm is asking for details about the prospective client’s situation so that the firm can assess whether this is a viable client. On the other hand, the “fine print” is telling prospective clients that the firm may represent their adversary and is asking for permission to use the information they provide in ways that may be harmful to them.
Here are a few options firms have considered:
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The most obvious and effective is to limit the prospective client’s input to contact information, eliminate the dialogue box and conduct a real-time follow-up that allows the firm to undertake a conflicts check. The intake section of the firm’s website could more prominently feature the real-time chat option to enable business owner to control the information and check for conflicts.
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Another option is the all-out warning. This includes a disclaimer telling prospective clients not to provide sensitive information, that the firm may represent a different client in the same matter, and that the prospective client is asked to consent to the use of information that is provided. The firm should ask the prospective client to affirmatively agree through a checked box in order to obtain this consent.
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Somewhere between these all-or-nothing options, a few firms have folded the warning and consent into the website’s terms and conditions or terms of service, asking the prospective clients to check a box acknowledging that they agree with these terms of service. This approach’s effectiveness is unclear since it seems likely that people will generally click through without actually consulting the terms.
What if business owner do nothing to control this intake risk?
One possibility is the simple inadvertent conflict. For example, two drivers in a car accident turn to the business owner through the online intake (perhaps with one admitting to having had a drink or two before the accident). Another possibility is a setup to be conflicted out. A colleague who runs a legal aid office shared with me the story of a men’s rights group advising those seeking a divorce to contact their legal aid office, not for the purpose of getting representation, but to make sure that their spouses are conflicted out of free legal assistance. The ABA Model Rule does not address this possibility, but some states have. For example, Rule 1.18(e) of the New York Rules of Professional Conduct states that a person is not a “prospective client” entitled to these protections if the purpose of the person’s communication is to disqualify an adversary.
While the risk of a conflict with a prospective client coming to a business owner through online intake may be remote, the consequences may be substantial. It’s worth considering and taking the steps to protect the firm.