The Confidentiality Duty

The Confidentiality Duty

Rule 1.18(b) gives a prospective client its first and most basic protection: even when no client-lawyer relationship ensues, a lawyer who has learned information from the prospective client may not use or reveal it, except as Rule 1.9 would permit for a former client's information.¹ The paragraph does three things. It imposes the duty without any relationship, borrows its content from the former-client standard, and inherits from that standard an exception for information that has become generally known. Once a person has consulted a lawyer about the possibility of retention, the lawyer's obligation about what was said no longer depends on how the consultation turned out.

The duty arises from the consultation itself, so retention, a fee, and the lawyer's willingness to take the matter are not conditions of it. The comment says the lawyer may not use or reveal the information even if the client or the lawyer decides not to proceed, and that the duty exists regardless of how brief the initial conference may be.² A secondary source states the same rule from the other direction: any discussion with an attorney about the possibility of forming a relationship counts as communication with a prospective client, and the attorney may not reveal private information learned in it, whether or not a relationship follows.³ The timing follows from the problem the rule solves. The person speaks before anyone decides about retention, so a duty that waited for a retainer would protect nothing said in the very conversation that decided whether there would be one. A lawyer who declined could then treat the facts as the lawyer's own, and a person who feared that result would learn to say little.

Paragraph (b) defines the content of the duty by cross-reference rather than new text. Rule 1.9(c), the former-client confidentiality rule, has two prongs. First, the lawyer may not use the information to the former client's disadvantage, unless the rules permit or require the use as to a client or the information has become generally known. Second, the lawyer may not disclose the information unless the rules permit or require disclosure as to a client.⁵ The references to what the rules permit as to a client carry over the ordinary exceptions to confidentiality. Paragraph (b) never asks whether the information was significantly harmful. That threshold sits in paragraph (c), which governs adverse representation: a lawyer is disqualified from acting against the prospective client only if the information received could be significantly harmful to that person.⁶ A lawyer who learned only minor facts therefore may still not reveal them, though paragraph (c) may leave the lawyer free to act against the person.

The comment explains why the duty stops at the former-client level. Discussions with a prospective client are usually limited in time and depth and leave both sides free to proceed no further, and sometimes the lawyer is required to proceed no further, so the prospective client receives some but not all of the protection a client receives.⁷ A weaker duty would push the other way. A person who feared that the lawyer might use the story would hold back the facts the lawyer needs to judge whether a conflict exists.

What happens when the story the person told reaches the newspaper? The answer separates information that is still private from information everyone already has.

The limit fits the duty's purpose, which is to keep the lawyer from exploiting what only the lawyer was told. Once the facts are available to everyone, using them draws on nothing confided in the consultation. The release is narrower than it first looks. Rule 1.9(c) places the generally-known clause in the use prong, and the disclosure prong carries no comparable clause.⁹ Facts that have actually become public may be used, and the rest of the consultation stays protected.

The ethical duty overlaps with the attorney-client privilege without matching it. The privilege is a right to withhold information from a legal proceeding, and it protects confidential communications made to an attorney for the purpose of seeking legal services.¹⁰ The duty in paragraph (b) governs the lawyer's own conduct, and it reaches information regardless of its ultimate source, including whether or not the source itself is protected by the privilege.¹¹ A substantive consultation will often trigger both, because a person who explains a legal problem to a lawyer is communicating in order to seek legal services. The duty is the broader of the two, because it binds the lawyer even where no one has asked a tribunal to compel testimony.