By Clare Pastore[1]

Articles are provided regularly by LACBA’s longstanding Professional Responsibility and Ethics Committee.

Doubtless, most people who consult an attorney seeking legal representation assume that the information they convey to the attorney is confidential, whether or not they end up engaging the attorney or firm. Indeed, many consultations could not take place without this understanding. Imagine consulting an attorney about a confidential business merger, or the desire to change a will, or a sensitive family law matter, and learning only later that the attorney was under no obligation to keep the information confidential or refrain from using it to assist some other client. Such a situation would justly provoke outrage at lawyers.

Of course, the ethics rules do protect potential clients in just this situation. California Rule of Professional Conduct (“CRPC”) Rule 1.18b states that “even when no lawyer-client relationship ensues, a lawyer who has communicated with a prospective client shall not use or reveal information protected by Business and Professions Code section 6068(e) and Rule 1.6 that the lawyer learned as a result of the consultation, except as Rule 1.9 would permit with respect to the information of a former client.”[2] Comment 1 to the rule underscores the message, specifying that “a prospective client’s information is protected by Business and Profession Code section 6068(e) and Rule 1.6 the same as that of a client. . . .” Ethics committees, too, have long weighed in on the protections afforded a prospective client.[3]

A recent case from the Fourth Appellate District threatens to strip potential clients of some of this important protection, however, based on an erroneous reading of Rule 1.18. In Syre v. Douglas, a quiet title action, the appellate court affirmed the denial of a disqualification motion brought by the plaintiff, who had sought assistance in the matter from a nonprofit law office that ended up representing the defendant in the very same case.[4] The case is unusual because it involves a nonprofit law firm, California Indian Legal Services (CILS), but its reading of the law has implications for all lawyers (and potentially all prospective clients).

The dispute involved ownership of a home in rural Bishop, California, that had belonged to the late Charlotte Willett, mother of defendant Mark Douglas and aunt of plaintiff Kimberly Syre. The appellate opinion opens with recitation of a long series of unsavory facts about Syre’s relationship and questionable financial transactions with her aunt and unauthorized actions following her aunt’s death, most of which are entirely extraneous to the disqualification motion.[5] That motion is based on the uncontested fact that Syre sought representation from CILS before filing the quiet title action, and the claim that the information she disclosed in the course of that request should disqualify CILS.

Following a protocol standard to many if not all nonprofit offices which receive far more requests for assistance than they can accommodate, a CILS non-lawyer advocate handled the initial communication with Syre. Through that communication, CILS learned that the legal matter on which Syre sought assistance involved real property and a quiet title action, matters not generally within its priorities for service. CILS also learned that Syre lived in Southern California, outside of CILS’s service area. It may also have learned that she was not indigent and thus not income-eligible for CILS services. Any of these three facts might have justified denying Syre CILS services; together they certainly did, and no more than this information was needed in order for CILS properly to decline the case. Had CILS learned only this information, it is highly unlikely that the purposes of Rule 1.18 would be served by disqualifying the office from later representing Douglas in the same dispute.[6] Nor would the letter of Rule 1.18’s disqualification be triggered, since the trigger for disqualification is receipt of confidential information “material to the matter,” which her location, category of legal dispute, and income would certainly not be. Indeed, if this level of basic information were disqualifying, nonprofit law offices could readily be removed from almost any case, certainly a terrible result for access to justice.[7]

However, it appears that CILS learned far more than this basic eligibility information from Ms. Syre. When the intake worker, following standard protocol, emailed a CILS attorney with the intake information, the attorney replied that usually CILS represented only people residing within its service area, but also asked “[W]hat’s the issue re property in Bishop?” In response, the advocate shared extensive information provided by Syre, including Syre’s version of her agreement with the late Ms. Willet about the house in question, Syre’s belief that Willett’s son (defendant Douglas) had exercised undue influence over Willett, that Syre was seeking a restraining order against Douglas, that Douglas had forced Willett to sign certain documents, and more.[8]  Surely a prospective client communicating this sort of detail about her own actions, her legal agreements or understandings, and her view of the opponent and the dispute, has a right to believe this information will not be disclosed unless the lawyer takes the case, and will in any event not be used to her detriment. Moreover, it is difficult to conclude that this information could not be material to the quiet title action, since allegations of undue influence and of oral contracts were central to that dispute.

The Court of Appeal’s opinion purports to apply Rule 1.18 to these facts, but makes several serious errors in so doing. First, it offers a truly odd and alarming take on the confidentiality of a prospective client’s information. Recall that CRPC 1.18b prohibits a lawyer who has communicated with a prospective client from using or revealing “information protected by Business and Professions Code section 6068(e) and Rule 1.6”—the same statute and rule that define and protect confidential information from current clients. Nonetheless, the court states that “there are no cases, statutes, or rules defining the type of communication between a prospective client and an attorney that could be considered confidential when the information acquired in the communication is geared at deciding whether to form the attorney-client relationship at all.” But there is no reason to suggest that a different standard for determining what is confidential applies to prospective clients than actual clients, or that whether information conveyed to a lawyer is confidential depends on whether the conveyor is a prospective client or an actual client. Second, as noted above, Comment 1 to CPRC Rule 1.18 says plainly that “a prospective client’s information is protected . . . the same as that of a client” (emphasis added). The court’s suggestion that the same information might be confidential if conveyed by a client but not if conveyed by a potential client is unsupported and should be alarming to anyone who reveals details of a legal dispute to a lawyer they do not end up hiring.

Moreover, the court states in several places that information related to legal theories or likely to end up in legal pleadings is not confidential.[9] This is truly bizarre, as of course clients often communicate vast amounts of information to lawyers in the belief that it might be grounds for a lawsuit or legal theory, and part of a lawyer’s job is to sift through such information to determine what if any part of it is in fact relevant or usable. It is also not difficult to imagine a potential client who discloses information adverse to herself while describing relevant events. Surely the fact that some of the potential client’s information might end up in a pleading or relate to a legal theory does not mean that none of it is confidential, especially the parts that clearly would not end up in such documents. Likewise, the court’s statement that “the only information communicated by plaintiff to the CILS intake advocate that could be viewed as confidential would have been her financial information” is completely at odds with the broad scope of Business & Professions Code section 6068(e) and Rule 1.6.[10]

The court also finds that the information plaintiff conveyed to CILS is not confidential because she “failed to establish a substantial relationship with CILS from which she could expect that preliminary information about the case would be considered confidential.”[11] But this too is a misreading of the rule. CRPC 1.18(c) says that a lawyer “may not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter” if the lawyer received confidential information from the prospective client. The “substantial relationship” in the rule refers to the connection between the two matters, not to the relationship between lawyer and prospective client. It is simply not correct to suggest that a prospective client’s information is unprotected if the relationship with the attorney she consulted does not become “substantial.”

In addition to its unfounded statements about confidentiality, the court makes other serious errors. In evaluating whether a lawyer is prohibited by Rule 1.18(c) from representing a client adverse to the prospective client, the court quotes and applies the ABA Model Rule’s language and comment rather than California’s rule. While our rule is patterned on the ABA Model Rule, the language differs in a significant respect. The ABA’s rule states that a lawyer may not represent an adverse client “if the lawyer received information from the prospective client that could be significantly harmful to that person in that matter”.[12] California’s rule, by contrast, has a substantially lower threshold, forbidding representation where the lawyer “received from the prospective client information protected by Business and Professions Code section 6060(e) and Rule 1.6 that is material to the matter”.[13] In the context of the Syre case, it is hard to conclude that detailed information about plaintiff’s relationship and transactions with her late aunt over the very property at issue in the case is not “material” under the California rule even if it would not be “significantly harmful” under the ABA standard. 

The court also seems to believe that only if an attorney (rather than a staff member under the direction of an attorney) acquired information are the protections of Rule 1.18 triggered.[14] But of course, if an action is forbidden to a lawyer, using a nonlawyer to accomplish it is likewise prohibited.[15] Moreover, the court’s opinion reveals that while Ms. Syre did not communicate directly with a CILS lawyer, that nonlawyer shared the information Ms. Syre provided with two CILS lawyers, who then conferred about it.[16]

As a longtime nonprofit lawyer, I certainly do not support disqualifying firms that provide services to the indigent unless absolutely necessary. But a nonprofit can readily avoid the Syre situation by not seeking information not germane to its threshold decision whether to represent the prospective client. Indeed, comment 3 to Rule 1.18 advises just such a course of action: “In order to avoid acquiring information from a prospective client that would prohibit representation [of an adverse party in the same or a related matter], a lawyer considering whether or not to undertake a new matter must limit the initial interview to only such information as reasonably appears necessary for that purpose.” (emphasis added). CILS need not have allowed Ms. Syre to provide so much detail about her problem, her actions, her theories, and her fears. Having done so, however, that information (along with her financial and residency eligibility information) was indisputably confidential and material, and arguably required disqualification.[17]

Far more important than whether the Syre case was properly decided is its potential effect on other litigants and attorneys. The court’s construction of the confidentiality duties owed to prospective clients should be alarming to those prospective clients, and might prove dangerous to attorneys who rely on it.