If a lawyer meets with a prospective client but decides—for conflict-of-interest purposes—that he cannot proceed with the representation, do the attorney–client privilege and ethical rules of confidentiality prohibit the lawyer from revealing the prospective client’s communications? A Nevada lawyer discovered the answer the hard way. In the Matter of Discipline of Mark A. Beguelin, Bar No. 3675, 2018 WL 2272918 (Nev. May 11, 2018), available here.
Model Rule of Professional Conduct 1.18 provides that, except in a narrow circumstance, a lawyer may not reveal information learned from a prospective client, “[e]ven when no client–lawyer relationship ensues.” The Rule’s comments provide that a person becomes a “prospective client” “by consulting with a lawyer about the possibility of forming a client–lawyer relationship.” And when that consultation occurs, the Rule imposes a confidentiality requirement on the lawyer, “regardless of how brief the initial conference may be.”
Most jurisdictions similarly hold that the attorney–client privilege protects from disclosure confidential communications between a lawyer and a prospective client. In his excellent treatise, Testimonial Privileges, privilege guru David Greenwald clearly recounts that the privilege applies to “prospective clients.” David Greenwald, et al., Testimonial Privileges, § 1.23 (3d ed.). The Nevada Supreme Court, in fact, has held that the privilege protects the substance of a lawyer’s consultation with a prospective client. Pohl v. Ninth Judicial Dist. Court, 2016 WL 383086 (Nev. Jan. 28, 2016), available here.
The Pohl decision makes what one Nevada lawyer did a bit puzzling. A prospective client met with the lawyer about filing a divorce action and revealed to him that her husband was verbally abusive.