Q: Dear Ethics Lawyer, A potential client sent me an unsolicited email containing what she described as confidential information about a claim she has against an entity that turned out to be one of our firm’s existing clients. Our website says that we undertake no duties of confidentiality in the absence of an agreement, and that prospective clients should not send confidential information without our agreement. May I or the firm still defend our existing client in the resulting matter? May we use the information the prospective client sent me to do so?
A: A potential client becomes a “prospective client” entitled to protection of information and certain conflict protection under Model Rule 1.18 only when the person “consults with a lawyer about the possibility of forming a client-lawyer relationship.” Whether communications (oral or electronic) constitute such a “consultation” depends on the circumstances, including whether the lawyer or law firm has invited the submission of information about the representation through advertising, website reference, etc., without qualifying cautionary statements or warnings about the nature of the communications. See Rule 1.18, Cmt 2. If the advertising or other posting simply lists qualifications, experience and contact information, the unilateral communication of information to the lawyer is not a triggering “consultation,” especially if as here, the material has a specific disclaimer of duties and confidentiality. In this case, the would-be client has made an uninvited unilateral submission. The lawyer and firm are free to be adverse, and to use the information that was communicated.