Communications with Prospective Clients – Ethics Opinion 695

Yesterday, the Advisory Committee on Professional Conduct Released Opinion 695. This Opinion is significant in that it sets forth the duty of confidentiality a New Jersey attorney owes to a prospective client.

On January 1st of this year, the Supreme Court adopted RPC 1.18. This RPC provides generally that a lawyer who has had discussions with a prospective client may not reveal or use information acquired during the discussions, even when no client-lawyer relationship ensures.

Opinion 695 stands for the proposition that duty to protect the confidentiality of communications from a prospective client is now considered equal to the duty to protect the communication from a client. This duty precludes the disclosure of the identity of the person seeking advice, the fact of the contact between the attorney and the prospective client as well as any and all information learned during the exchange, subject to certain exceptions set forth in RPC 1.18 and RPC 1.6.

Download a copy of Opinion 695

RPC 1.18. Prospective Client (a) A lawyer who has had discussions in consultation with a prospective client shall not use or reveal information acquired in the consultation, even when no client-lawyer relationship ensues, except as RPC 1.9 would permit in respect of information of a former client. (b) A lawyer subject to paragraph (a) shall not represent a client with interests materially adverse to those of a former prospective client in the same or a substantially related matter if the lawyer received information from the former prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (c). (c) If a lawyer is disqualified from representation under (b), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except that representation is permissible if (1) both the affected client and the former prospective client have given informed consent, confirmed in writing, or (2) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom and written notice is promptly given to the former prospective client. (d) A person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a “prospective client,” and if no client-lawyer relationship is formed, is a “former prospective client.” Note: Adopted November 17, 2003 to be effective January 1, 2004.

RPC 1.6. Confidentiality of Information (a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b), (c), and (d).
(b) A lawyer shall reveal such information to the proper authorities, as soon as, and to the extent the lawyer reasonably believes necessary, to prevent the client or another person:
(1) from committing a criminal, illegal or fraudulent act that the lawyer reasonably believes is likely to result in death or substantial bodily harm or substantial injury to the financial interest or property of another;
(2) from committing a criminal, illegal or fraudulent act that the lawyer reasonably believes is likely to perpetrate a fraud upon a tribunal.
(c) If a lawyer reveals information pursuant to RPC 1.6(b), the lawyer also may reveal the information to the person threatened to the extent the lawyer reasonably believes is necessary to protect that person from death, substantial bodily harm, substantial financial injury, or substantial property loss.
(d) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary:
(1) to rectify the consequences of a client’s criminal, illegal or fraudulent act in the furtherance of which the lawyer’s services had been used;
(2) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, or to establish a defense to a criminal charge, civil claim or disciplinary complaint against the lawyer based upon the conduct in which the client was involved; or
(3) to comply with other law.
(e) Reasonable belief for purposes of RPC 1.6 is the belief or conclusion of a reasonable lawyer that is based upon information that has some foundation in fact and constitutes prima facie evidence of the matters referred to in subsections (b), (c), or (d).

copyright 2004 – Muni-mail – All Rights Reserved

Category: Muni-Mail Archive