When does a potential client become a prospective client?
On May 20, 2022, the Kentucky Bar Association Ethics Committee issued Formal Ethics Opinion KBA E-455 (the “Opinion”) addressing issues surrounding the formation of the client-lawyer relationship. It is critical to understand the point when a potential client (who is owed no duties) becomes a prospective client (who is owed duties under Kentucky Rules of Professional Conduct, including rules SCR 3.130(1.7), SCR 3.130(1.9), and SCR 3.130(1.10)).
The Opinion states generally that a person (or entity) becomes a prospective client “by discussing with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter.” This is highly dependent “on the facts and circumstances surrounding the exchange of information.” The Opinion provides a couple of scenarios to clarify, stating:
If during the discussion the lawyer requests or invites a potential client to provide confidential information without giving the person an effective warning not to disclose confidential information and the potential client proceeds to provide the attorney with confidential information that is significantly harmful to such person, then it is most likely that the person will become a prospective client. On the other hand, if a person who is not acting in good faith communicates confidential information unilaterally, or after first receiving a warning not to make a disclosure of confidential information or without any reasonable expectation that the lawyer is willing to discuss the possibility of representing the person, then the potential client should not be considered a prospective client. Further, a person who discloses or communicates information to a lawyer must have a bona fide intent of retaining the lawyer or a good faith intention to seek legal advice, a person who does not should not be deemed a “prospective client.”
KBA E-455, pg. 5.
Lawyers can implement practices during the initial interview and in the conflicts check process to prevent a potential client from unintentionally becoming a prospective (or current) client.
- Limit the amount of information obtained from the potential client until after an initial conflict check is completed.
- Advise the potential client before they begin sharing any information of the following:
- The sole purpose of the preliminary discussion is to do a basic conflict check.
- Not to share any factual information until after giving sufficient information to allow a conflicts check to be completed.
- This discussion does not generate an attorney-client relationship.
- Appropriate follow-up will occur as soon as possible after the conflict check is complete and clear.
- Additionally, “[a] prudent lawyer could advise a potential client as follows: ‘do not tell me any of your case or matter specific confidential information at this point – rather, only give me a simple description of the nature of the matter and the names of the persons involved in the matter.’” KBA E-455, pg. 6.
The Ethics Committee has included a sample Conflict Consultation Form in KBA E-455 to assist lawyers. Lawyers are encouraged to utilize the form or, alternatively, review the form and ensure current conflict check process includes the items in the form and otherwise ensures compliance with the Rules of Professional Conduct.
LMICK encourages you to read the Opinion in its entirety and meet with your team to ensure everyone understands the best practices for client intake.
KBA E-455 has been initially published in the July 2022 Bench and Bar Magazine. It will later be published to the KBA’s website.