If a potential adversary leaves a detailed voicemail seeking to hire you to sue your existing client, what are your duties?

Plain-English summary

The inquiry concerned a lawyer's responsibilities to his own client and to a caller who left a detailed message on the lawyer's answering machine, while seeking to hire the lawyer, about the caller's possible lawsuit against the lawyer's client. The committee began by noting that answering the question first requires determining whether a client-lawyer relationship exists, which is a legal question the committee is prohibited from deciding. It pointed the inquirer to the Preamble to the ABA Model Rules and to several Washington cases as reading on that question.

The committee then addressed both branches. If the lawyer concludes there is no client-lawyer relationship with the caller, the lawyer's obligation to the caller is prescribed by RPC 4.3, and the committee's opinion was that the secretary's call to the caller satisfied that requirement; the lawyer's obligation to his own client, the company, is prescribed by RPC 1.4, and the lawyer would be required to inform the company of the pending lawsuit. If the lawyer concludes that a client-lawyer relationship does exist with the caller, the lawyer's obligations are prescribed by RPC 1.6, 1.7(b), and 1.15(a)(i): the lawyer would have to keep the content of the call confidential and would have to decline to represent the company in the caller's lawsuit.

Currency note

This opinion was issued in 1998, before the Washington State Bar Association's adoption of the 2006 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here. Washington's RPC 1.4, 1.6, 1.7, and 4.3 correspond to ABA Model Rules 1.4, 1.6, 1.7, and 4.3; the RPC 1.15 the committee cited (declining or terminating a representation) corresponds to ABA Model Rule 1.16, and duties to prospective clients are now addressed in Model Rule 1.18, which postdates this opinion.

Common questions

Q: Does a detailed voicemail from someone seeking to hire you create a client-lawyer relationship?

A: The committee said that is a legal question it is prohibited from deciding, and pointed the inquirer to the ABA Model Rules Preamble and Washington case law to resolve it.

Q: If there is no relationship with the caller, what are your duties?

A: The committee concluded the duty to the caller is governed by RPC 4.3 (satisfied here by the secretary's call), and that under RPC 1.4 the lawyer must inform the existing client, the company, of the pending lawsuit.

Q: If a relationship did form with the caller, what then?

A: The committee concluded the lawyer must keep the content of the call confidential under RPC 1.6 and must decline to represent the company in the caller's lawsuit under RPC 1.7(b) and 1.15(a)(i).

Background and rules framework

The opinion applied Washington RPC 4.3 (dealing with an unrepresented person), RPC 1.4 (communication with the client), RPC 1.6 (confidentiality), RPC 1.7(b) (conflict of interest), and RPC 1.15(a)(i) (declining a representation), corresponding to ABA Model Rules 4.3, 1.4, 1.6, 1.7, and 1.16. The committee made the lawyer's obligations turn entirely on the threshold legal question of whether a client-lawyer relationship formed with the caller, which it declined to decide.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.4 (communication); Washington RPC 1.4
• ABA Model Rule 1.6 (confidentiality); Washington RPC 1.6
• ABA Model Rule 1.7 (conflict of interest: current clients); Washington RPC 1.7(b)
• ABA Model Rule 1.16 (declining or terminating representation); Washington RPC 1.15(a)(i)
• ABA Model Rule 4.3 (dealing with an unrepresented person); Washington RPC 4.3

Cases (cited by the opinion as reading on relationship formation):

• In re McGlothlen, 99 Wn.2d 515, 663 P.2d 1330 (1983).
• Bohn v. Cody, 119 Wn.2d 712, 862 P.2d 117 (1992).
• State v. Hansen, 122 Wn.2d 712, 862 P.2d 117 (1993).

See also

• WA Ethics Op. 1819: Representing the Attorney-in-Fact
• WA Ethics Op. 1814: Lawyer on a Hospital Board
• WA Ethics Op. 1813: Redacting a Client's Secret

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1014

Original opinion text

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

Advisory Opinion: 1821
Year Issued: 1998
RPC(s): RPC 1.4; 1.6; 1.7(b); 1.15; 4.3
Subject: Formation of attorney-client relationship; conflict of interest; adverse party leaves lawyer detailed voice mail message about potential lawsuit against current client

The Committee researched and reviewed your inquiry concerning the responsibility of a lawyer to his own client and to a caller who leaves a detailed message about the caller's possible law suit against the lawyer's client on lawyer's answering machine when seeking to hire the lawyer and determined the following:

As you point out in your letter, answering your question requires first a determination whether a client-lawyer relationship exists. That is a legal question and this Committee is prohibited from giving opinions on legal questions.

To resolve this question for yourself, you may want to read the Preamble to the ABA Model Rules of Professional Conduct and In re McGlothlen, 99 Wn.2d 515, 663 P.2d 1330 (1983); Bohn v. Cody, 119 Wn.2d 712, 862 P.2d 117 (1992); and State v. Hansen, 122 Wn.2d 712, 862 P.2d 117 (1993).

If you conclude that you have no client-lawyer relationship with the caller, then your obligation to the caller is prescribed by RPC 4.3 and it is the Committee's opinion that your secretary's call to the caller satisfied that requirement. Your obligation to your own client, the company, would be prescribed by RPC 1.4 and you would be required to inform the company of the pending lawsuit.

If you conclude that you do have a client-lawyer relationship with the caller, then your obligations are prescribed by RPC 1.6, 1.7(b) and 1.15(a)(i). You will have to keep the content of the call confidential and you will have to decline to represent the company in the caller's lawsuit.