If a person pays a charged consultation fee, are they a prospective client or a former client of the lawyer?

Plain-English summary

A person consulted a lawyer about a property-line dispute, paid a $100 consultation fee the lawyer requested, and then hired a different lawyer for the matter. The first lawyer argued that the person was only a "prospective client" under Rule 1.18 and was owed just the protections that rule affords. The question is whether that is correct.

The opinion concludes it is not. While a client-lawyer relationship can form in an initial consultation even when no fee is paid, the relationship is unequivocally established, for purposes of the Rules of Professional Conduct, when a lawyer charges a fee for a service (however limited) and the fee is paid. The duties of loyalty and confidentiality then exist with respect to the matter discussed, under Rule 1.7. If the person does not retain the lawyer for further assistance, the person becomes a former client under Rule 1.9.

The opinion contrasts this with the ordinary prospective-client situation: a person who merely discusses the possibility of forming a relationship is a prospective client and receives some, but not all, of the protections afforded clients and former clients under Rule 1.18. The paid consultation moves the person past that category into a full, if brief, client-lawyer relationship.

In practice

Under the North Carolina rules as they stood at the time of the opinion, the analysis turns on whether the lawyer charged and the person paid a fee for the consultation. The opinion holds that a paid consultation, however limited the service, establishes a client-lawyer relationship for the matter discussed, with the duties of loyalty and confidentiality under Rule 1.7, and leaves the person a former client under Rule 1.9 if the representation goes no further.

Per the opinion, a person who only discusses the possibility of representation, without a charged-and-paid fee, remains a prospective client under Rule 1.18 with the narrower protections that rule provides.

Common questions

Q: Does paying for an initial consultation make someone a client?

A: Yes. The opinion concludes that when a lawyer charges a fee for a service and the person pays it, a client-lawyer relationship is unequivocally established for the matter discussed.

Q: Is a paying consultation client a "prospective client" under Rule 1.18?

A: No. The opinion concludes a person who pays a charged consultation fee is owed the duties of a client and, once the matter goes no further, becomes a former client under Rule 1.9, not a prospective client under Rule 1.18.

Q: What does the lawyer owe the person after a paid consultation?

A: The duties of loyalty and confidentiality with respect to the matter discussed. The opinion concludes those duties exist under Rule 1.7, and the former-client duties of Rule 1.9 apply if the person does not retain the lawyer further.

Background and rules framework

The opinion applies North Carolina Rule 1.18 (duties to a prospective client), Rule 1.7 (loyalty and confidentiality in a current representation), and Rule 1.9 (duties to former clients), which track Model Rules 1.18, 1.7, and 1.9. The distinction the opinion draws is between a person who merely discusses possible representation (a prospective client) and a person who has paid a charged fee for a service (a client, then a former client).

Citations and references

Rules of Professional Conduct:

• MR 1.18 / NC Rule 1.18 (duties to a prospective client)
• MR 1.7 / NC Rule 1.7 (duties of loyalty and confidentiality)
• MR 1.9 / NC Rule 1.9 (duties to former clients)

See also

• ABA Formal Op. 510: Avoiding Imputation of a Prospective-Client Conflict
• ABA Formal Op. 98-411: Lawyer-to-Lawyer Consultation

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/2006-formal-ethics-opinion-14/

Original opinion text

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

Inquiry:

John Doe consulted Attorney A about a property line dispute with Mr. Doe's neighbor. At the request of Attorney A, Mr. Doe paid Attorney A a consultation fee of $100, which was accepted by Attorney A. Thereafter, Mr. Doe hired another lawyer to represent him in the property dispute.

Attorney A contends that Mr. Doe was a "prospective client," as that term is defined and addressed in Rule 1.18, Duties to Prospective Client, and that he owes Mr. Doe only the protections afforded a prospective client. Is Attorney A correct?

Opinion:

No. A client-lawyer relationship may be formed in an initial consultation although no legal fee is paid. However, a client-lawyer relationship is unequivocally established, for the purposes of the Rules of Professional Conduct, when a lawyer charges a fee for a service, regardless of how limited, and the fee is paid. The duties of loyalty and confidentiality exist with respect to the matter discussed. Rule 1.7. If the client does not retain the lawyer for further assistance, the client becomes a former client.

Ordinarily, a person who discusses the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client. A prospective client receives some, but not all, of the protections afforded clients and former clients. Rule 1.18. However, when a lawyer charges a fee that the heretofore prospective client pays, in exchange for the lawyer's time and/or advice, a client-lawyer relationship exists with respect to the provision of that service. If the representation proceeds no further—for example, the client does not retain the lawyer for additional assistance—the client becomes a former client. Rule 1.9.