Monday, March 3, 2008

Unsolicited Contact Does Not Make A Prospective Client

The Professional Ethics Committee of Florida Bar has a new proposed ethics opinion that deals with obligations to prospective clients. Under circumstances where a putative prospective client makes an unsolicited contact with an attorney, the committee opines:

"The committee's opinion is that a person has no reasonable expectation that a lawyer will keep confidential information that is sent by that person on a totally unsolicited basis. The committee concludes that such a person is not a 'prospective client' within the meaning of Rule 4-1.18, because the lawyer has not discussed the possibility of representation with the person, nor even agreed to consider representing the person. The lawyer therefore will not have a conflict of interest in representing the adversary of a person who has sent information to the lawyer on an unsolicited basis, and the lawyer may disclose or use that unsolicited information in the representation of the adversary. On the other hand, if the lawyer has discussed the possibility of representation with a person or agreed to consider representing the person, that person is a 'prospective client' under Rule 4-1.18, and the lawyer therefore owes the person a duty of confidentiality which may create a conflict of interest in representation of an adversary. In adopting this opinion, the committee withdraws Florida Ethics Opinion 66-23. The committee cautions lawyers who invite persons seeking legal representation to provide information via the lawyer's website that the lawyer should prominently post a disclosure statement that the lawyer does not intend to treat such information as confidential and that the lawyer may use the information against the person if the lawyer intends to do so." (Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2008/03/the-florida-bar.html

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