Washington Lawyer - August/September 2018 - 39
ASK THE ETHICS EXPERTS
HANDLING A PROSPECTIVE
Whose File Is It, Anyway?
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By Saul Jay Singer
When Marcia Medmal brought her hospital malpractice case to me,
I immediately delivered my standard "I have not agreed to represent you,
you have not agreed to retain me, we're just discussing it" speech. However,
she did sustain significant damages and the case looked promising, so
I expended considerable time and expense in investigating her claim and
gathering documents before concluding that proving causation would be
difficult and declining the representation.
I know that I have the ethical duty to return all the documents that Marcia provided to me, but must
I yield to her demand to give her my entire investigative file? She says that a lawyer told her that I am
ethically bound to return a client's file, which includes all documents in the file.
SERVING L AWYERS
It is true that the general D.C. rule is that the entire file belongs to the client,
but, in this case, Marcia, as "a person who discusses with a lawyer the possibility
of forming a client-lawyer relationship with respect to a matter," is merely
a "prospective client" pursuant to Rule 1.18(a). As such, what you characterize
as your "speech" is actually an excellent way to explain that you are not her
lawyer, but are only contemplating becoming her lawyer.
Nonetheless, as Rule 1.18(b) makes clear: even though you never actually entered into an attorney-client
relationship with her, your duty to maintain Marcia's confidences and secrets - both as to communications with her and information you learned during your investigation of her case - is co-extensive to the
very broad duty you owe to actual clients under Rule 1.6. Such a duty arises and continues even if, as
here, an attorney-client relationship never forms.
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As to the "file," you are correct that, pursuant to D.C. Rules 1.18 and 1.15, you are required to safeguard
and to return Marcia's property to her. However, as the Legal Ethics Committee concludes in Legal
Ethics Opinion 374 (Ethical Obligations Regarding Prospective Client Information), in the absence of
a contractual or other legal obligation, you have no ethical obligation to turn over to her any notes,
analysis, research, or information that you generated or obtained, be it documentary or otherwise,
unless or until she becomes your client.
D.C. Bar Legal Ethics counsel Hope C. Todd, Saul Jay Singer, and Erika Stillabower are available
for inquiries at firstname.lastname@example.org.
https://osioffices.com (202) 600-7777
Photo: Courtesy of Saul Jay Singer
WASHINGTON LAWYER 39