January 20, 1994
A lawyer who is consulted by phone regarding whether the lawyer is willing to accept referrals of customers from a nonlaw business, and who advises the caller that the proposed enterprise constitutes the unauthorized practice of law, may disclose information about the call to local bar association members.
References: MRPC 1.6(b) and (c)(4); RI-57, RI-154; MCL 600.916.
A lawyer received a telephone call from an individual after referral from a bar association referral service. During the course of the telephone conversation, the lawyer was informed by the caller, a nonlawyer, that the caller intends to assist "clients" in the drafting of wills, deeds, land contracts and in obtaining uncontested divorces. The caller was looking for a lawyer to whom the caller could refer "clients" with questions that the caller could not answer or for matters which require a lawyer to appear in court. The lawyer advised the caller that the contemplated activity was practicing law without a license and that the individual should obtain employment in a law office where the services would be under the supervision and guidance of a lawyer.
The lawyer asks if the conversation may be disclosed to local bar association members, informing them of the presence in the community of this individual.
It is undisputed that whenever confidences or secrets are conveyed during the context of the lawyer/client relationship, they must be kept confidential. MRPC 1.6(b) states:
"(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; or
"(3) use a confidence or secret of a client for the advantage of the lawyer or of a third person, unless the client consents after full disclosure."
Even if an individual does not retain the lawyer, any confidences or secrets shared during that initial consultation must not be revealed. RI-57, RI-154. "Information learned during a consultation, before the formal entry of a professional contractual relationship, is normally considered confidential." 55 Law Man Prof Cond 301.
In order to determine if such a confidential relationship existed, the Committee must examine the context under which the consultation was made. On the one hand, even if the information the caller was seeking was technically not "legal advice," it could be argued that, being a nonlawyer, the caller assumed that the communication to the lawyer would be protected. The information the lawyer gave the caller was "legal advice," i.e., that the proposed conduct constituted unauthorized practice of law and the caller should not pursue it. The fact that the caller was so advised by a lawyer, if disclosed, may well be used to the disadvantage of the caller in any subsequent actions taken against the caller for alleged unauthorized practice of law. Clients frequently consult lawyers about new ideas, only to discover that there are legal implications that would prevent the activity as visualized.
On the other hand, it may be argued that the caller was not seeking legal advice and did not intend to use the lawyer's legal services. The caller wanted only to identify a lawyer to whom to refer customers if it was determined to be necessary. The lawyer was merely asked whether the lawyer would be willing to accept these referrals. That the caller chose to do that by first calling the referral service does not change the caller's status or the purpose of this call. There was no professional relationship in existence nor was one anticipated by the caller. MRPC 1.6 is not triggered.
Upon these facts, i.e., that the caller asked whether the lawyer would accept referrals and did not ask for legal services, the lawyer may disclose the conversation. To the extent the caller's contemplated conduct is an intent to commit a crime, it would not be protected from disclosure. MRPC 1.6(c)(4); MCL 600.916.