NOTE: This opinion was drafted prior to the enactment of MRPC 1.18, please see the rule for further guidance.
Please note this analysis may be impacted by the Supreme Court’s Opinion in L Offs of Jeffrey Sherbow, PC v Fieger & Fieger, PC, 507 Mich 272; 968 NW2d 367 (2021).
February 1, 1993
A client-lawyer relationship is not formed between a lawyer and a prospective client as the result of a brief consultation when the prospective client does not reveal any confidences or secrets in the course of the consultation.
A lawyer may represent a client in a matter materially adverse to a person who merely consulted with another lawyer in the same law firm on the same matter if the lawyer's protection of confidences or secrets imparted during the consultation does not materially limit the lawyer's representation of the client.
References: MRPC 1.6(b), 1.7(b), 1.9(a) and (c), 1.10(a); RI-48, RI-123.
A lawyer has been approached by a company to pursue the recovery of money from a former employee pursuant to a tax reimbursement policy.
Three years previously, the former employee had previously had a conversation about the tax reimbursement issue with another lawyer in the firm. The former employee's conversation had been arranged through a county bar association referral service, which referred the former employee to the law firm colleague. The former employee was entitled to a one-half hour consultation for a $15 referral fee, which was collected by the lawyer colleague and forwarded to the referral service in accordance with its rules.
At the meeting the former employee discussed various issues stemming from the termination of the former employee's employment with the company, and told the lawyer colleague that the company had asserted a monetary claim against the former employee with reference to the tax reimbursement policy. Other than the former employee's stated disagreement with the company's claim, no other information concerning the tax reimbursement policy was discussed. The information shared about the tax reimbursement issue did not go beyond the information available in the files and records of the company.
The lawyer colleague advised the former employee that the issues raised by the tax reimbursement issue were involved and complex, required a review of documentation (which was not available or reviewed at the meeting), and demanded a more detailed development of the facts. The fees, costs and other terms of the law firm's potential representation were discussed with the former employee, who decided not to retain the law firm.
The inquiring lawyer asks whether the firm may represent the company against the former employee in connection with the tax reimbursement matter.
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."
MRPC 1.7(b) states:
"(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests unless:
"(1) the lawyer reasonably believes the representation will not be adversely affected; and
"(2) the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved."
MRPC 1.9 states in part:
"(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.
". . . .
"(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:
"(1) use information relating to the representation to the disadvantage of the former client except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client, or when the information has become generally known; or
"(2) reveal information relating to the representation except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client."
MRPC 1.10(a) states:
"(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7, 1.8(c), 1.9(a) or (c), or 2.2."
The initial issue posed by this inquiry is whether a client-lawyer relationship was created between the lawyer colleague and the former employee as a result of the consultation conducted pursuant to the bar association referral. If so, absent the former employee's consent, MRPC 1.9(a) and 1.10(a) would bar the law firm's representation of the company in the tax reimbursement matter, as it is precisely the same matter as was involved in the consultation with the former employee and the positions of the parties are materially adverse.
As stated in the Commentary to MRPC 1.0, "[m]ost of the duties flowing from the client-lawyer relationship attach only after the client has requested the lawyer to render legal services and the lawyer has agreed to do so." There is, however, no such bright line that can be automatically drawn, and the Comment goes on to note that "[w]hether a client-lawyer relationship exists for any specific purpose can depend on the circumstances and may be a question of fact."
The issue presented by this inquiry was discussed in the context of different facts in RI-48, where a husband sought to retain the services of a lawyer in connection with a divorce case when another lawyer in the same law firm had previously conducted a "lengthy discussion" with the wife about representation in the divorce. Although the wife did not ultimately retain the services of the law firm, it was determined that a client-lawyer relationship sufficient to trigger the prohibition of MRPC 1.9(a) may have existed, quoting the following from Hazard & Hodes, The Law of Lawyering (Prentice-Hall, Supp 1989):
"Whether a client-lawyer relationship was established may depend on how specifically the case was discussed during consultation. If confidences were imparted in good faith, a client-lawyer relationship existed for purposes of applying Rule 1.9." Pp 179-180. Emphasis in original.
In accord, RI-123, 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 a lawyer.
Applying this reasoning to the facts presented, no client-lawyer relationship was established in connection with the lawyer colleague's bar association referral contact with the former employee. No agreement was reached between the lawyer colleague and the former employee whereby the lawyer colleague expressly undertook to provide legal services to the former employee on the tax reimbursement issue. Nor was the content of the consultation sufficiently specific to imply a client-lawyer relationship. While the subject of a tax reimbursement claim was raised, in a very general manner, there was no legal advice imparted to the former employee regarding the tax reimbursement issue; instead, the former employee was told that no advice could be provided without further information and study.
This does not end the inquiry. Even if the facts do not raise the inference of a client-lawyer relationship under MRPC 1.9, the consultation does give rise to the lawyer colleague's MRPC 1.6 duties to protect and preserve any confidences which may have been imparted by the former employee. "[T]here are some duties, such as that of confidentiality under Rule 1.6, that may attach when the lawyer agrees to consider whether a client-lawyer relationship shall be established." Comment to MRPC 1.0.
The question then becomes whether the responsibilities to the former employee under MRPC 1.6 and 1.9(c), to refrain from using confidences and secrets to the detriment of the former employee and to refrain from revealing confidences and secrets without the consent of the former employee will materially limit the representation. If adhering to those duties materially limits the law firm's representation of the company, MRPC 1.7(b) would prohibit the law firm from undertaking representation of the company unless a disinterested lawyer would reasonably believe the representation would not be adversely affected and the company consents.
Under the facts provided, the law firm's adherence to its duties under MRPC 1.6 and 1.9(c) would not have any impact on the law firm's representation of the company on the tax reimbursement issue, and thus the "materially limited" factor in MRPC 1.7(b) would not be triggered.
It should be noted that the present inquiry is similar to a hypothetical set of facts discussed in ABA Op 90-358. In that opinion, the ABA Committee considered a hypothetical case where a law firm has been engaged to represent a client, (A), against another party, (B), on a breach of contract matter. Client B then consults with another lawyer at the same firm about the same matter, disclosing only that client A is the potential opposing party and that the matter involves a breach of contract. The conflict is discovered and discussions with client B terminated:
"In the opinion of the Committee, under these principles the fact that B . . . has consulted the law firm to prosecute the claim against A may not be communicated to A or used to B's disadvantage because it is information protected by [ABA Model] Rule 1.6. The law firm may nevertheless continue to represent A because the information is neither extensive nor sensitive and the inability to reveal or use the information does not place material limits on A's representation." Emphasis added.
In summary, the lawyer colleague, and every member of the law firm, must adhere to the requirements of MRPC 1.6 and 1.9(c) with respect to the former employee's consultation. That consultation and the duties of confidentiality it triggers, under the facts here presented, do not prevent the lawyer colleague directly or the inquiring lawyer from representing the company in the tax reimbursement matter.