Lawyers don’t usually need to preserve or turn over information about a prospective client who doesn’t become an actual client, the District of Columbia legal ethics committee said in a recent opinion.
The opinion gives a green light to D.C. lawyers who want to dispose of their notes of meetings with prospective clients that never resulted in an attorney-client relationship.
The committee said a lawyer’s obligations change when the parties decide not to form an attorney-client relationship. Before the decision, the committee said, a lawyer must safeguard a prospective client’s property, including intangible property, under DC Rules of Professional Conduct 1.18 (prospective clients) and 1.15 (safekeeping property).
Comment 9 to Rule 1.18 says to look at Rule 1.15 when a prospective client gives a lawyer valuable property or files. Under Rule 1.15(a), the lawyer must keep the property safe and separate from his own. But the obligations under Rule 1.15 to return the property to the client are dependent upon the client having a property interest, the committee said. So, unless there’s an agreement otherwise, the lawyer doesn’t have an obligation to “preserve or turn over documents or other information generated by or at the direction of the lawyer—including notes, legal research, or information obtained through subsequent investigation” if the prospective client has no property interest in them.
Rule 1.16(d) requires a lawyer to protect a client’s interests after termination, such as by returning the client’s files and property. But a prospective client isn’t the same as a client so that obligation doesn’t apply, the committee said.
Once the decision is made not to enter into an attorney-client relationship, there are no obligations under the DC ethics rules to preserve or turn over a prospective client’s information. This is one of the instances where prospective clients receive “some but not all of the protection afforded clients,” the committee said.
The opinion is District of Columbia Bar Legal Ethics Comm., Op.
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