By: Tyler Hampy
Lawyers often use social networking sites to stay connected to family, friends, and colleagues, and there is typically no problem with this. However, many lawyers actively use the social networking sites to share information about their professional lives and broadcast their accomplishments. Sharing this sort of information may cause prospective clients or others on the lawyer’s “friends” lists to transmit confidential information in the expectation of receiving legal advice.
When such communications occur, certain ethical issues arise, such as the loss of confidentiality and unintentionally forming an attorney-client relationship. ABA Model Rule of Professional Conduct 1.6 states that “[a] lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).” Paragraph (b) specifies the circumstances under which a lawyer may (but is not required to) reveal client confidential information relating to the threat or risk of future harm.
So, what happens if an attorney has received confidential information through the social networking community from someone who never actually became a client? Well, to answer that question, we have to look at the duties a lawyer owes to prospective clients.
Lawyers who identify themselves in the social networking community as legal professionals should understand that they run the risk of receiving unsolicited communications from others participating on the social networking site. However, regardless of whether an attorney-client relationship is ultimately formed, lawyers owe certain duties to prospective clients.
When does someone become a prospective client? ABA Model Rule of Professional Conduct 1.18 defines a “prospective client” as “[a] person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter.” Even when no lawyer-client relationship is formed, “a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation…” The rule goes on to state that a lawyer shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter. Additionally, if a lawyer is disqualified from representation pursuant to Rule 1.18, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter.
Rule 1.18 presumes that a prospective client is communicating with a lawyer in a good faith attempt to decide on whether to enter into an attorney-client relationship. However, not all communications are done in good faith. For example, a prospective client may schedule meetings or send electronic messages to several different lawyers in hopes of disqualifying each of the lawyers from representing their opposition. For this reason, the comments to Rule 1.18 clarify that not everyone who communicates information to a lawyer is protected under the Rule. “A person who communicates information unilaterally to a lawyer, without any reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship, is not a “prospective client.”