March 13, 1992
Information collected by a legal assistant during an interview of a prospective client is protected against disclosure to the same degree as if the information was collected by the lawyer.
A lawyer whose legal assistant has collected information during an interview of a prospective client may be prevented from undertaking future representation materially adverse and substantially related to the matter which the legal assistant discussed with the prospective client.
References: MRPC 1.6, 1.9, 1.10, 1.16, 5.3; RI-48, RI-103, RI-115; ABA Op 90-358.
A lawyer in general practice is considering hiring a legal assistant whose duties would include initial screening of prospective clients for conflicts of interest, and collecting preliminary information about the client's legal matter. The lawyer asks: If the legal assistant performs the initial conflict screening, and the lawyer never in fact meets with the prospective client and the prospective client does not hire the lawyer, is the information collected by the legal assistant protected by confidences and secrets which only the prospective client may waive, and if so, is the lawyer prevented from undertaking future representation materially adverse and substantially related to the matter which the legal assistant discussed with the prospective client?
MRPC 1.6(b) and (d) state in part:
"(b) Except when permitted under paragraph (c), a lawyer shall not knowingly:
"(1) reveal a confidence or secret of a client;
"(2) use a confidence or secret of a client to the disadvantage of the client; . . . .
"(d) A lawyer shall exercise reasonable care to prevent employees, associates, and others whose services are utilized by the lawyer from disclosing or using confidences or secrets of a client, . . . ."
In the context of initial client interviews, these duties to protect and preserve client confidences are not dependent upon whether the lawyer ultimately undertakes the representation. If the prospective client imparts confidential information important to the matter under consideration, the duty to protect and preserve those confidences arises. See, e.g., ABA Op 90-358 ("information imparted to a lawyer by a would-be client seeking legal representation is protected from revelation or use under Model Rule 1.6 even though the lawyer does not undertake representation of or perform legal work for the would-be client"). See, also, RI-48.
This result is not altered by the fact that the information is imparted by the prospective client to the lawyer's agent, the legal assistant. Communications to a lawyer's agent are generally protected to the same extent as direct communications with the lawyer. See, Watson v Detroit Free Press, 248 Mich 237 (1929); McCormick on Evidence, paragraph 89, p. 182 (West 1972).
MRPC 5.3 states in part:
"With respect to a nonlawyer employed by, retained by, or associated with a lawyer:
". . .
"(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer; . . . ."
The comment to MRPC 5.3 states that:
". . . A lawyer shall give such assistants appropriate instruction and supervision concerning the ethical aspects of their employment, particularly regarding the obligation not to disclose information relating to representation of the client, . . . ."
In light of the above principles, the information collected by the legal assistant during an interview of a prospective client is protected against disclosure to the same degree as if the information was collected by the lawyer. During initial interviews, prospective clients have a legitimate expectancy that confidential information will not be revealed. This expectancy is not lessened by the fact that the initial interview is conducted by an agent of the lawyer, the legal assistant.
Whether the lawyer would be prevented from undertaking future representation materially adverse and substantially related to the matter which the legal assistant discussed with the prospective client is dependent on the character of the information imparted by the prospective client. If confidential information important to the subject matter of the representation was communicated to the legal assistant, the lawyer would be precluded from undertaking such future representation. RI-48, ABA Op 90-358.
It is beyond the scope of the opinion to delineate just what kind or how much information must be imparted before the duty to decline future representation arises. For an exhaustive discussion of this issue, however, see ABA Op 90-358.
In RI-48 we discussed whether a lawyer, or any other lawyer in the lawyer's firm, could represent the husband in a divorce action where the wife had previously consulted with a lawyer in the firm about the subject divorce. RI-48 concluded that, assuming confidential information had been disclosed, the lawyer would be precluded from undertaking the representation pursuant to MRPC 1.9. This conclusion was reached even though no legal work was ever performed by any lawyer in the firm for the wife.
Nor does it matter whether or not the legal assistant actually conveyed the confidential information to the lawyer. RI-48 additionally concluded that, under principles of imputed disqualification as set forth in MRPC 1.10, no other lawyer in the firm could undertake the representation, even though the lawyer who
interviewed the wife never communicated the information to any other lawyer in the firm.
It is again immaterial that the initial interview was conducted by the lawyer's agent, the legal assistant. We have interpreted the Michigan Rules of Professional Conduct as applying to the conduct of legal assistants while working in the employ of and under the direction of a lawyer, particularly with respect
to the duty to protect client confidences. See, e.g., RI-103. Additionally, in RI-115, we concluded that the conflict of interest rules as set forth in MRPC 1.9 and 1.10 apply equally to transfers of nonlawyers from one firm to another.
MRPC 1.9(a) states:
"(a)A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents after consultation."
MRPC 1.16 states in part:
"(a)Except as stated in paragraph (c), a lawyer shall not represent a client . . . if:
"(1) the representation will result in violation of the Rules of Professional Conduct or other law; . . . ."
In this case, assuming confidential information important to the subject matter of the representation is conveyed to the legal assistant by the prospective client, the lawyer would be compelled to decline future representation to the same extent as if a lawyer member of the firm, received the information initially.