The inquirer is on the Lawyer Referral and Information Service (LRIS) referral panel for employment discrimination cases. When CLS refers a client to LRIS with a potentially fee-generating employment discrimination case, the inquirer -- along with other attorneys on the LRIS referral panel -- receives from LRIS a fully detailed description of the case compiled by CLS. Along with other materials relating to potential cases, the inquirer keeps all such LRIS/CLS referral papers in a chronological file called Potential Files. Some time ago, the inquirer received such a referral form concerning a female employee's potential claim for employment discrimination based on allegations of sexual misconduct by her employer. 1 The inquirer's files note no direct contact with A by inquirer's office and no further communication between inquirer's office and CLS or LRIS concerning Matter 1; and inquirer has no independent recollection of any such contact or communication.
Recently, when checking the Potential Files for possible conflicts on another, unrelated matter, inquirer's secretary noticed A's name and recalled that A is the potential complaining witness in a pending matter 2 in which the inquirer represents a male employee 3 charged by his employer with alleged sexual misconduct complained of by A. The secretary brought this fact to inquirer's attention. Inquirer believes the similarity of the charges made by A in Matter 1 could be useful in impeaching A's testimony in Matter 2.
1. Can inquirer use the information contained in the CLS referral form?
2. If not, can inquirer discover the information independently of the LRIS/CLS form and then use it?
3. If not, is inquirer disqualified from continuing to represent B?
The Committee is of the opinion:
1. Inquirer may not use the information.
2. Inquirer may not discover the information independently of the LRIS/CLS form and then use it.
3. Inquirer is disqualified from continuing to represent B.
For the subject matter of this inquiry, the Rules of Professional Conduct do not directly address situations posed by a potential client. That term is nowhere used in the sections of the Rules concerning confidentiality and conflict of interest, which are the sections pertinent to this inquiry; those sections speak of duties to the client. Nevertheless, the Committee concludes that the rules of confidentiality and of conflict of interest apply to the situation desc1.ribed; in other words, the Committee concludes that in such a situation A's position must be analyzed as that of a client.
First: The section of the Rules entitled Scope states: The Rules . . . are rules of reason. They should be interpreted with reference to the purposes of legal representation and of the law itself. And further: Most of the duties flowing from the client-lawyer relationship attach only after the client has requested the lawyer to render legal services and the lawyer has agreed to do so. But there are some duties, such as that of confidentiality under Rule 1.6, that may attach when the lawyer agrees to consider whether a client-lawyer relationship shall be established (emphasis added). Taking these guiding comments together, the Committee believes that a potential client can meaningfully determine whether to enter into an attorney-client relationship with a given attorney, and vice versa, only if the disclosures made in the initial contacts are accorded the confidentiality protections set out in Rules 1.6 and 1.9. Otherwise, in order to safeguard confidential information, the client's initial disclosures to the attorney would have to be restricted to: I have a possible case of employment discrimination; can you take the case? Neither the client nor the attorney could make a reasonable judgment based on such a truncated form of interview.
Second: The duty of confidentiality under Rules 1.6 and 1.9 serves the same purpose (among others) as the attorney-client privilege, viz., it facilitates the full development of facts essential to proper representation of the client [and] also encourages people to seek early legal assistance. Comment, Rule 1.6. It follows that the same analysis as that found in the case law as to when the attorney-client relationship arises, so as to provide the protection of the privilege, should be applied to the question of when the duty of confidentiality arises.
Under Pennsylvania law, the attorney-client privilege attaches when there is shown:
the existence of a relationship in which an attorney is acting in his professional capacity as a lawyer, see In re Fogg's Estate, 249 Pa. 63, 94 A. 453 (1915); the key is whether there has been a professional consultation with an attorney, who acts or advises as such. Alexander v. Queen, 253 Pa. 195, 201, 97 A. 1063, 1065 (1916).
Okum v. Commw., Unemp. Comp. Bd. of Review, 465 A.2d 1324, 1325 77 Pa. Commw. Ct. 386, 389. In the Alexander case cited in Okum, it is stated: The one question in all such cases is, was the employment 4 of the counsel so connected with the latter's professional character as to afford the presumption that this formed the ground of the confidence reposed. 253 Pa. at 201, 97 A. at 1065. Of particular pertinence to the present inquiry is the following observation by the Supreme Court in Surface v. Bentz, 228 Pa. 610, 77 A. 922 (1910):
The question [whether the privilege attaches to preliminary communications concerning whether to enter into a confirmed attorney-client relationship is discussed and ruled in many cases in our own and in other jurisdictions as appears by the decisions cited, in the paper-books. In 23 Am. & Eng. Ency. of Law, 63, it is said that the privilege of confidential communications extends to communications made to an attorney in good faith with a view to employing trim in the matter to which the communications relate or during the course of negotiations for his employment, even although the attorney declines the case, or the prospective client after hearing the attorney's advice, does not further employ him. Mr. Wigmore (Evidence, vol. 4, sec. 2304) says: Since the would-be client cannot certainly predict the attorney's acceptance of the employment, the former must be protected in his preliminary statements when making the overtures, even if the overture is refused. The payment of a fee is not necessary to establish the relation of attorney and client: Beeson v. Beeson, 9 Pa. 279, and we have said that the circle of protection is not so narrow as to exclude communications a professional person may deem unimportant to the controversy, or the briefest and lightest talk the client may choose to indulge with his legal adviser, provided he regards him as such, at the moment: Moore v. Bray, 10 Pa. 519, 524.
Id. at 617, 77 A. at 924.
In light of the above discussion, the Committee concludes that the inquirer must consider A's status that of a former client. Rule l.9(b) forbids inquirer's use of any information relating to the representation of A to the disadvantage of A, and given the inquirer's description of the nature of the information proposed for use from the CLS referral papers, the Committee sees no applicable exception, such as those set forth in Rule l.9(b).5 The Committee notes that its conclusion on this point is in accord generally with ABA Formal Opinion 90-358. See also Hazard & Hodes, The Law of Lawyering §1:6:1 15 (2d ed. 1966).
As to inquirer's second question, the Committee sees no way in which inquirer could demonstrate conclusively that he/she would have discovered the information without the tip-off that inquirer's secretary uncovered in the inquirer's Potential Files.
As to inquirer's third question, the Committee concludes that inquirer is conflicted from continuing to represent B in Matter 2. Under Rule 1.7(b), Inquirer's representation of B is materially limited by his/her responsibilities of confidentiality owed to A (whether as another client or as a third person -- here, as a former client entitled to the protections of Rule l.9(b)). The exception set forth in Rule 1.7(b)(1)-(2) is not available, first, because inquirer's description of the usefulness of the information makes it clear that the representation of B will be adversely affected, Rule 1.7(b)(1); and second, because inquirer cannot obtain B's consent after full disclosure and consultation with B, as is required by Rule 1.7(b)(2), without violating the confidentiality restrictions of Rule 1.9. 6
1. For ease of reference, this first matter will hereafter be referred to as Matter 1, and the female employee will be referred to as A.
2. Hereafter, Matter 2.
3. Hereafter, B.
4. The term employment used in Alexander is not limited to the meaning of engaged for hire, but rather extends to the meaning of use, as a reading of the case discloses.
5. The Committee assumes - since otherwise the present inquiry would be unnecessary - that the information contained in the CLS referral papers was not generally known or of public record The Committee does not believe the disclosure of the information to other attorneys on the LRIS referral list could constitute the basis for one of these exceptions. Rather, all such disclosures contain the same confidentiality status as the disclosure to inquirer.
6. It appears from the Inquiry that Matter 2 came into inquirer's office, and B became inquirer's client after inquirer's receipt of the LRIS/CLS form in Matter 1. For that reason, the present inquiry does not present the more problematic situation posed when a potential client's disclosures are adverse to the interests of an existing client of the attorney being considered for engagement. See Hazard & Hodes, supra.