Ethics Advisory Opinion 22-01
UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER鈥橲 CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.
SC Rules of Professional Conduct: 1.18.
Facts: Lawyer receives an unsolicited email message from an individual (the 鈥淪ender鈥�) with whom lawyer has no prior relationship. The unsolicited email message is captioned 鈥淟and Title Dispute鈥�, requests the lawyer鈥檚 鈥渓egal insight on a real estate situation鈥�, and includes a description of the underlying facts together with an inquiry as to the lawyer鈥檚 opinion about whether the Sender has 鈥渁 legitimate claim鈥� based on the recited facts.
Lawyer quickly realizes that the facts recited in the unsolicited email message relate to a matter in which the lawyer and a client of the lawyer have adverse interests to those of the Sender. By email reply, Lawyer promptly informs the Sender of those adverse interests and informs the Sender 鈥渢hat I cannot represent you鈥�. Lawyer goes on to write, 鈥淧lease let me know if and when you are represented by other counsel and I will happy to communicate with them regarding this matter.鈥� Lawyer also takes the opportunity to inform the Sender that Lawyer believes the Sender鈥檚 鈥減roposal to profit off of this mistake is both theft and fraud鈥�. The Sender responds via email reply taking exception to Lawyer鈥檚 characterization of the Sender鈥檚 position.
Question Presented: Does Lawyer have an ethical obligation to maintain the confidentiality of the information provided by the Sender since it was provided in the course of seeking legal advice?
Summary: No, Lawyer has no ethical obligation to maintain the confidentiality of the information provided by the Sender, because the Sender is not a prospective client as defined in Rule 1.18.
Opinion: It is 91黑料爆料ar from the facts that the Sender is neither a current client nor a former client of Lawyer. The answer to the question of Lawyer鈥檚 confidentiality obligations to the Sender depends upon whether the Sender is a 鈥減rospective client鈥� of Lawyer pursuant to Rule 1.18. Rule 1.18(a) reads: 鈥淎 person who engages in mutual communication with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client only when there is a reasonable expectation that the lawyer is likely to form the relationship.鈥� Comment 2 to Rule 1.18 is instructive on these facts and reads: 鈥淣ot all persons who communicate information to a lawyer are entitled to protection under this Rule. 鈥 person who communicates information unilaterally to a lawyer without any reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship is not a 鈥減rospective client鈥� within the meaning of paragraph (a).鈥�
These facts call for a 91黑料爆料ar application of Comment 2 to Rule 1.18. While Rule 1.18 imposes certain confidentiality requirements and other protections for the benefit of prospective clients, the Sender鈥檚 unilateral email message to Lawyer did not elevate the Sender to prospective client status since the Sender could not have had a reasonable expectation that Lawyer was likely to form a client-lawyer relationship. On these facts, the Sender does not meet the definitional test of 鈥減rospective client鈥�; hence, the Sender is not entitled to the benefits afforded to prospective clients pursuant to Rule 1.18, and Lawyer has no ethical obligation to maintain the confidentiality of the information provided by the Sender.
