If a parent consults a North Carolina lawyer about a matter for her minor child but no one is hired, can the lawyer use what the parent disclosed to help the child against the parent's interests?

Plain-English summary

A daughter consults a lawyer about her father's estate, eventually asking the lawyer to overturn a settlement agreement and have her brother replaced as executor and guardian for the daughter's 15-year-old son, who is the residuary beneficiary. In the course of the consultation she discloses that her brother made unauthorized disbursements, including a renunciation that paid her and her brother $50,000 each.

On who the client would be, the opinion concludes the lawyer would represent the grandchild, not the daughter. To protect the grandchild's interest, the grandchild must be the client, and a lawyer representing the grandchild would likely also seek to undo the renunciation, which would adversely affect the daughter, so the lawyer cannot represent both (Rule 1.7(a)). The opinion notes the lawyer would need the consent of the daughter and her husband and might seek a guardian ad litem, and must explain that challenging the renunciation could require the daughter to return the $50,000 (Rule 1.7(b)).

On a restricted engagement, the opinion concludes the lawyer may not accept representation limited to overturning only the settlement agreement and replacing the brother, because that restriction would curtail the lawyer's independent professional judgment for the grandchild and could prejudice the grandchild's interests.

On confidentiality, the opinion concludes that even though no client-lawyer relationship formed, the daughter consulted the lawyer in good faith for legal advice and was owed a duty of confidentiality under Rule 1.18(b). Absent consent, the lawyer must maintain her confidences under Rule 1.6 unless an exception applies. The opinion examines two exceptions and finds neither applies: Rule 1.6(b)(1) (law or court order) does not, and Rule 1.6(b)(2) (preventing a client's crime) does not, because the conduct had already occurred, was not committed by a client, and the lawyer's services were not used to perpetrate it (Rule 1.6(b)(4)).

On reserving the right to disclose, the opinion concludes a lawyer may condition the consultation on the prospective client's informed consent that disclosures will not bar later adverse use, but only through an effective disclaimer: a general statement that no client-lawyer relationship is formed is not enough (citing RPC 244), the disclaimer must be made before any disclosures, and the consent must be confirmed in writing (Rule 1.0(f)).

In practice

Under the North Carolina rules as they stood at the time of the opinion, the analysis turns on Rule 1.18's protection for prospective clients. The opinion holds that a parent consulting a lawyer about a minor's matter is owed confidentiality, and that the lawyer cannot use or reveal those confidences to help the child unless a Rule 1.6 exception applies or the parent gave advance, written, informed consent.

Per the opinion, a lawyer who wants to preserve the ability to use a prospective client's information must obtain that informed consent before any disclosures are made and confirm it in writing; a generic "no attorney-client relationship" disclaimer does not accomplish it.

Common questions

Q: Is someone who consults a lawyer but never hires the lawyer owed a duty of confidentiality?

A: Yes. The opinion concludes that a person who consults a lawyer in good faith to seek legal advice is a prospective client owed at least a duty of confidentiality under Rule 1.18(b), even if no client-lawyer relationship forms.

Q: Can a lawyer use a parent's confidences to help her minor child against the parent?

A: Not without consent. On these facts the opinion concludes no Rule 1.6 exception permitted disclosure, so the lawyer had to maintain the parent's confidences.

Q: Does the crime-prevention exception apply to fraud that already happened?

A: No. The opinion concludes Rule 1.6(b)(2) reaches only the prevention of a client's future crime, and Rule 1.6 does not permit disclosure to rectify past conduct unless the lawyer's own services were used to commit the crime or fraud.

Q: How can a lawyer reserve the right to use a prospective client's information later?

A: Only through an effective disclaimer: informed consent to the disclosure and adverse use, made before any disclosures and confirmed in writing. A general "no relationship formed" notice is insufficient.

Background and rules framework

The opinion interprets Rule 1.18 (duties to prospective clients, corresponding to Model Rule 1.18), Rule 1.6 (confidentiality, corresponding to Model Rule 1.6) and its enumerated exceptions, Rule 1.7 (concurrent conflicts, corresponding to Model Rule 1.7), and Rule 1.0(f) (informed consent, corresponding to Model Rule 1.0). The opinion observes that the confidentiality duty owed to a prospective client under Rule 1.18 parallels the duty owed to a former client under Rule 1.9.

Citations and references

Rules of Professional Conduct:

• MR 1.18 / NC Rule 1.18 (duties to prospective clients; cmts [3], [5])
• MR 1.6 / NC Rule 1.6 (confidentiality; exceptions (b)(1), (b)(2), (b)(4))
• MR 1.7 / NC Rule 1.7 (concurrent conflicts of interest)
• MR 1.0 / NC Rule 1.0(f) (informed consent confirmed in writing)

Other opinions cited:

• RPC 244 (general non-engagement disclaimer insufficient to overcome the duty of confidentiality)
• ABA/BNA Lawyer's Manual on Professional Conduct 31:151 (2005)

See also

• ABA Formal Op. 492: Obligations to Prospective Clients
• ABA Formal Op. 90-358: Protection of Information of Prospective Client
• ABA Formal Op. 510: Avoiding Imputation of Prospective-Client Conflict
• CA COPRAC Op. 2003-161: Confidentiality in Non-Office Consultations
• CA COPRAC Op. 2005-168: Web Intake Form Confidentiality Disclaimer

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/2005-formal-ethics-opinion-4/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Inquiry #1:

Daughter schedules an office consultation with Lawyer A to discuss her father's estate. At the time the appointment was made, Lawyer A did not discuss the nature of Daughter's legal problem or whether Daughter was the person in need of representation. Daughter meets with Lawyer A and initially describes her father's estate as follows: Father left a holographic will naming his Brother as executor. Father was survived by Son, who is a lawyer, and by Daughter. Father's will makes provisions for Widow, then leaves everything else to Grandchild, the 15-year-old son of Daughter. The will specifically disinherits Son and Daughter. Brother qualified as executor and retained Son as attorney for the estate. Brother is also guardian of the minor's estate until Grandchild reaches age 25. The will was probated two years ago.

Next, Daughter discloses that Brother has made some unauthorized disbursements from the estate. First, Brother executed a document ("Renunciation Document") purporting to renounce the estate's interest in $100,000, and then paid that money in equal shares to Son and Daughter. Son was acting as attorney for the estate at this time.

Second, Brother and Son entered into a "Settlement Agreement" which recites that Son has raised questions about and has threatened to challenge the validity of the will. The agreement provides for payment to Son of the sum of $250,000 and a deed to a tract of real estate in exchange for Son's renunciation of any and all rights to his father's estate and any right to contest the will. Brother and Son took the Settlement Agreement to a superior court judge, without notice to Daughter or Grandchild, and the judge signed an order approving the settlement agreement.

Daughter asks Lawyer A whether he will provide representation to have the "Settlement Agreement" overturned and have Brother replaced as executor and guardian.

If Lawyer A agrees to take the case, who will be the client?

Opinion #1:

Daughter seeks Lawyer A's assistance in protecting Grandchild's interest in Father's estate. To accomplish this goal, Grandchild must be the client. Although Daughter asks that Lawyer A overturn the Settlement Agreement only, it is likely that a lawyer representing Grandchild would also seek to overturn the Renunciation Document, thereby adversely affecting Daughter's interests. Thus, if Lawyer A agrees to take the case, he would represent Grandchild, but he may not also represent Daughter because Daughter's interests are adverse to those of her son's. See Rule 1.7(a).

Lawyer A should explain to Daughter that if hired to represent Grandchild, he would require both Daughter and her husband to consent to the representation, and that he may seek appointment of a guardian ad litem to protect Grandchild's interests. To obtain informed consent, Lawyer A must explain that as Grandchild's lawyer, Lawyer A also would challenge the validity of the Renunciation Document, which could result in Daughter being required to return the $50,000 she received. See Rule 1.7(b).

Inquiry #2:

Assume Lawyer A has explained the limits of his representation as recited in Opinion #1 and Daughter leaves his office to confer with her husband. Later, Daughter leaves Lawyer A a voicemail message indicating they would consider hiring Lawyer A to represent their son, but only if he would agree to limit his representation to overturning the Settlement Agreement and getting Brother replaced as executor and guardian.

May Lawyer A agree to the representation under these circumstances?

Opinion #2:

No. See Opinion #1. Lawyer A cannot agree to accept the representation with these restrictions because to do so would curtail his ability to exercise independent professional judgment on behalf of Grandchild, and because these instructions may be prejudicial to Grandchild's interests.

Inquiry #3:

Assume that Lawyer A declines representation, and that Daughter will not authorize Lawyer A to disclose any information imparted to him in the consultation, may Lawyer A use or reveal any information learned from Daughter to protect Grandchild's interests?

Opinion #3:

Every lawyer consulted about a legal matter incurs certain ethical obligations to the person who consulted the lawyer, even if the relationship goes no further. These obligations—confidentiality, loyalty, and competence—are separate from the lawyer's duties under agency, contract, and tort law. Because they exist by virtue of ethics rules rather than legal precepts, the obligations arise even in the absence of a cognizable lawyer-client relationship.

ABA/BNA Lawyer's Manual on Professional Conduct 31:151 (2005).

When someone consults with a lawyer in good faith for the purpose of seeking professional legal advice, the ethics rules impose, at a minimum, a duty of confidentiality on the lawyer consulted. Rule 1.18(b). This duty arises even when the individual is seeking a second opinion but does not intend to form a client-lawyer relationship, or when the individual is consulting the lawyer about a legal issue on behalf of a friend or family member. The person who divulges information to an attorney in either case has the reasonable belief, induced by the lawyer's conduct, that the information imparted will be held in confidence. See generally Rule 1.18.

Here, Daughter consulted with Lawyer A to determine whether to employ him. After the consultation, Lawyer A declined representation of Daughter based upon a conflict of interest, and ultimately did not undertake representation of Grandchild. Clearly, there was no client-lawyer relationship between Lawyer A and Daughter or Grandchild.

Nevertheless, Daughter was owed the duty of confidentiality inasmuch as she disclosed confidential information to Lawyer A and sought legal advice from Lawyer A to determine how to proceed on behalf of her son. She had the reasonable belief that the information discussed with Lawyer A would be held in confidence. Absent any disclaimer from Lawyer A that the information discussed in the consultation may be revealed, Lawyer A owed a duty of confidentiality to Daughter. See Rule 1.18, cmt [3] (lawyer prohibited from using or revealing information imparted in a consultation, even if the client or lawyer decides not to proceed with a representation)1.

The question then becomes whether, absent consent from Daughter, Lawyer A may disclose Daughter's confidences to assist Grandchild regardless of whether he represents Grandchild. Unless one of the exceptions to the confidentiality rule applies, Lawyer A is required to maintain Daughter's confidences pursuant to Rule 1.6.

Rule 1.6 enumerates seven exceptions to the duty of confidentiality when there is no authorization to disclose. Only two of those exceptions merit consideration here. First, a lawyer may reveal information protected from disclosure "to comply with the Rules of Professional Conduct, the law or court order[.]" Rule 1.6(b)(1). Lawyer A is not subject to any law or court order requiring him to reveal Daughter's confidences. The Rules of Professional Conduct also do not require disclosure under these circumstances.

Second, Rule 1.6(b)(2) permits disclosure of confidential information to the extent reasonably necessary "to prevent the commission of a crime by the client[.]" Even assuming the fraudulent conduct amounts to a crime, the conduct in question has already occurred and the person committing the crime is not the client. While it is true that Lawyer A has information that could undo the fraud, Rule 1.6 does not permit disclosure to rectify past conduct, unless the lawyer's services were used to perpetrate the crime or fraud. Rule 1.6(b)(4).

Inquiry # 4:

May Lawyer A ever reserve the right to reveal confidential information of a prospective client who does not ultimately retain his services?

Opinion #4:

Pursuant to Rule 1.18, cmt. [5],

a lawyer may condition conversations with a prospective client on the person's informed consent that no information disclosed during the consultation will prohibit the lawyer from representing a different client in the matter. . . . If the agreement expressly so provides, the prospective client may also consent to the lawyer's subsequent use of information received from the prospective client. [Emphasis added.]

A general disclaimer stating that the initial consultation does not create a client-lawyer relationship is insufficient to overcome the duty of confidentiality. See e.g., RPC 244. An effective disclaimer must clearly demonstrate the prospective client's informed consent to the disclosure and use of confidential information, even against his or her interests. In addition, the disclaimer must be made before any disclosures are made to the lawyer and the consent to disclosure must be confirmed in writing. Rule 1.0(f), cmt. [1].

End Notes

• The duty of confidentiality owed to prospective clients under Rule 1.18 is the same as that owed to former clients under Rule 1.9. Rule 1.9 incorporates the confidentiality requirements in Rule 1.6, except that a lawyer may use confidential information of a former client "when the information has become generally known."

• Rule 3.3, Candor Toward the Tribunal, requires a lawyer to reveal, if necessary, a fraud upon the court when the lawyer represents a client in an adjudicative proceeding and knows of criminal or fraudulent conduct related to the proceeding. Rule 3.3(b). This duty to rectify the fraud only continues to the conclusion of the proceeding. Here, Lawyer A has no obligation to disclose Daughter's confidences under this rule because he has no client with respect to the matter and because all proceedings involving the fraudulent conduct have concluded.