Ethics Corner Article

Dear Ethics Committee:

I am an estate planning attorney. Last year three adult children came to my office. They reported their father’s health was failing and they wanted to discuss options for his estate planning. We discussed their father’s assets, the benefits of establishing a trust for his assets, as well as a living will, and advanced directives. We discussed among other things potential disposition of the father’s assets. I took notes of the discussion, which lasted for approximately 45 minutes. I never communicated with the father. I was not formally retained by the siblings and received no money from any of them. No engagement letter was presented at the meeting. I heard nothing from the father or siblings until recently, when I was contacted by one of the siblings, who explained she had fallen out with her other two siblings regarding their father’s estate planning. She demanded a copy of my notes from the meeting and insisted I not provide them to her other siblings. What are my ethical obligations under these circumstances?

This scenario illustrates the fundamental importance of clearly determining whether an attorney-client relationship has been formed and delineating who is the client or prospective client.

The first step is to identify the client or prospective client under these circumstances. See Rule 1.7, 2004 ABA Model Rule cmt. 2 (“[r]esolution of a conflict of interest problem under this Rule requires the lawyer to: 1) clearly identify the client or clients….”). An attorney-client relationship is created when a person seeks advice or assistance from an attorney, the advice or assistance sought pertains to matters within the attorney’s professional competence, and the attorney expressly or impliedly agrees to give or actually gives the requested advice or assistance. McCabe v. Arcidy, 138 N.H. 20, 25 (1993); see Restatement (Third) of the Law Governing Lawyers, § 14 (2000). Consultation between an attorney and another person, with the intent to seek legal advice, constitutes the fundamental basis of an attorney-client relationship. Id. The burden of establishing the existence of the relationship rests upon the party who claims it exists. McCabe, 138 N.H. at 25.

An attorney-client relationship may have been formed between the attorney and the three siblings collectively because they jointly sought advice or assistance from the attorney, on a matter within the attorney’s professional competence, and the attorney gave the requested advice or assistance. Payment or the promise of payment is not required to establish the relationship, although payment may comprise evidence that the relationship was formed. See Restatement (Third) of the Law Governing Lawyers § 14, cmt. a and § 38, cmt. c (2000). Because the siblings met with the attorney together, there appears to be no reasonable basis for any one of them to claim the attorney represents their individual interests to the exclusion of the others. Without direct communication with the father, it is unclear whether the siblings are acting as their father’s agent such that the father is either the or a prospective client.

If an attorney-client relationship was formed, then the attorney must consider their obligations under N.H. R. Prof. Conduct 1.7 and N.H. R. Prof. Conduct 1.9. The Committee’s opinion 2014/15-10 on Joint Representation of Clients in Estate Planning makes clear that information must be shared between joint clients. The circumstances presented above suggest that the interests of the sibling who requested the attorney’s notes are directly adverse to the interests of the other siblings. See N.H. R. Prof. Conduct 1.7(a)(1). Even if there is insufficient evidence of direct adversity, there appears to be a significant risk that the representation of the requesting sibling would be materially limited by the lawyer’s responsibilities to the other siblings, regardless of whether the other siblings are considered current or former clients. See N.H. R. Prof. Conduct 1.7(a)(2).

The Committee notes there is no definitive New Hampshire Supreme Court case determining whether attorney notes are part of the client file that must be produced to the client (or prospective client) upon request. This issue is discussed in the Committee’s Opinion 2015-16/05 on Client File Retention, in an Ethics Corner published on May 18, 2012, and in Averill v. Cox, 145 N.H. 328, 339 (2000). The Court in Averill noted that some jurisdictions distinguish between “end product,” which is the client’s property, and “work product,” which is the attorney’s property, but declined to delineate between such documents. See 145 N.H. at 339. The Committee regards it as a best practice for attorneys to consider their notes as part of the client file. The Committee believes this is consistent with Averill v. Cox and its Opinion 2015-16/05.

If no attorney-client relationship was formed, then the attorney’s obligations to the children would be defined by N.H. R. Prof. Conduct 1.18. Under that rule, the attorney would be obligated to keep confidential their communications with the children, Rule 1.18(b), and avoid future conflicts of interest. See N.H. R. Prof. Conduct 1.18(c) and (d). N.H. R. Prof. Conduct 1.18 does not expressly address whether an attorney’s notes of discussions with a prospective client must be provided to the prospective client upon demand.

ABA Comment to Model Rules, Cmt. 1 to N.H. R. Prof. Conduct Rule 1.18 states that “prospective clients should receive some but not all of the protection afforded clients.” If the prospective client entrusts valuable information or papers to the lawyer, the lawyer may be obligated to safeguard it pursuant to N.H. R. Prof. Conduct Rule 1.15(a) and return it to the client upon request. However, at least one jurisdiction has found that its version of Rule 1.15 does not apply to notes, legal research, or information obtained by the attorney through subsequent investigation. Ethical Obligations Regarding Prospective Client Information, Ethics Op. 374 (D.C. Bar Assoc.) (April 2018):

Where a prospective client elects not to retain a lawyer’s services, or the lawyer is either unwilling or unable to represent the prospective client, the D.C. Rules impose no obligation on the lawyer to preserve information learned in or related to the prospective client consultation in which a prospective client has no property interest. Similarly, a lawyer has no obligation under the D.C. Rules to turn over to a prospective client, either at the time that the lawyer and/or prospective client decide not to form a client-lawyer relationship or thereafter, information learned in or related to a prospective client consultation.

Id. There are differences between the New Hampshire and District of Columbia versions of Rule 1.18, but those differences are not material to the analysis of the issue whether the attorney is obligated to produce her notes to a prospective client.

The question raises issues regarding whether an attorney-client relationship was formed and the identity of the client or potential client. A best practice in this circumstance is to communicate directly with the potential client, either through a phone call, letter, or by arranging an in-person meeting (through the siblings, if necessary), to confirm the potential client’s capacity and intentions. If the potential client decides to retain the attorney, the attorney should consider an engagement letter as a best practice.

This Ethics Corner Article was submitted for publication review to the NHBA Board of Governors at its May 18, 2023, Meeting. The Ethics Committee provides general guidance on the New Hampshire Rules of Professional Conduct and publishes brief commentaries in the Bar News and other NHBA media outlets. New Hampshire lawyers may contact the Committee for confidential and informal guidance on their own prospective conduct or to suggest topics for Ethics Corner commentaries by emailing the Ethics Committee Staff Liaison.