In part 1 of this series, I told you to think about networking differently; in part 2 we discussed networking events. In the next two posts we are going to discuss the ethical considerations you must be mindful of to ensure that you don’t violate the Rules of Professional Conduct (for consistency, we will be referencing the ABA Model Rules, however, your states rules may be different).
Did you know that what happens at a networking event can trigger ethics issues? Let’s talk about some of the ethics issues.
RPC 1.18 – Duties to prospective clients.
(a): A person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.
Since many ethical duties and prohibitions depend on the existence of an attorney-client relationship, it is important to define the relationship and determine when and how it begins.
At its most basic, it begins with the reliance by a nonlawyer on the professional skills of a lawyer who is conscious of that reliance and, in some fashion, manifests an acceptance of responsibility for it.
When you meet someone at a networking event, you must be careful that you do not create the inadvertent attorney-client relationship. What often happens at a networking event is that once you have told people what you do, someone may inevitably say: “Oh, I have an issue that could be a law suit,” and then they proceed to launch into the facts of the case. And while you may be excited that this could be a potential new client, if you listen to them, and /or offer advice based on these facts, if they rely on this advice, to their benefit or detriment, you could be creating an attorney client relationship.
The ABA has clarified this rule in comment 2 of the rule by saying:
A person becomes a prospective client by consulting with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter. Whether communications, including written, oral, or electronic communications, constitute a consultation depends on the circumstances. For example, a consultation is likely to have occurred if a lawyer, either in person or through the lawyer’s advertising in any medium, specifically requests or invites the submission of information about a potential representation without clear and reasonably understandable warnings and cautionary statements that limit the lawyer’s obligations, and a person provides information in response.
What this means is that your conversation about a potential case with someone at a networking event could result in the creation of a client-attorney relationship. To avoid this, when a person begins talking about a potential case, you need to politely stop them and say “this is not the best place to discuss this matter? Would you like to continue this conversation tomorrow?” Then either acquire their contact information or provide them with your business card and set up a time to chat.
Although this may seem extreme, it’s honestly not beyond the realm of possibility that someone you meet may say: “but this attorney told me that …. “
The other part of this rule you must be mindful of says:
RPC 1.18 (b): Even when no client-lawyer relationship ensues, a lawyer who has learned information from a prospective client shall not use or reveal that information . . .
Again, while it seems far-fetched that you would get in trouble, you should not be talking about potential clients’ cases even if haven’t been retained. Which leads us to the next rule:
RPC 1.6: Confidentiality of Information
One of the most important obligations of an attorney is the duty to maintain confidentiality of information. RPC 1.6(a) states:
A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted (by other parts of this rule)
Stories abound of attorneys talking about cases at lunch, online or even on cellphones on trains. This is technically a violation of this rule. I don’t know what it is about cell phones and people needing to speak loudly into them. The days of “can you hear me know” are long over. Confidentiality of information means just that – confidential. If other people can hear you, then you are risking a violation of this rule.
In fact, RPC 1.6(c) affirms:
A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.
However, let’s go back to the networking event for a moment – if someone asks you about what cases you are working on while you are networking, you must be very careful. In fact, it is my suggestion that you refrain from replying. It may be a great story and apropos to the conversation, but discussing clients when at networking events can be a violation of this rule.
RPC 1.7: Conflict of Interest: Current Clients
a) . . . a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer (emphasis added).
Now, there are two parts to this rule I want to discuss with regard to networking:
First, when you are a networking event, you do not know if the person you are speaking to represents a conflict to a case you are working on or other clients unless you do a conflict check at your firm. Now, if you are a solo practitioner, like most of the readers of this blog, this may be easier to avoid since you will know all of your clients. However, you will still need to make sure. Therefore, it behooves you to just try to create the beginnings of a relationship with a person prior to answering any questions they may have. In fact, again, offer to have them call the office.
The second part is the positional conflict – that is, when your personal interest conflicts with or would likely weaken the position that you would take on behalf of a client. What does this mean? Well, we all have our opinions, but sometimes making them known could be a conflict of interest. For example, if you get into a conversation about gun control at a networking event, and you proclaim that you are against people having guns, under normal circumstances, this would be okay – except, for example, if you are a criminal defense attorney or public defender. Then, it is a conflict of interest to all of the clients you may represent who commit a crime carrying a firearm.
RPC 1.9: Duties to Former Clients.
(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 these Rules 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 these Rules would permit or require with respect to a client.
While it is truly tempting to talk about your old cases in networking situations, you have a duty to make sure that you do not reveal information about your clients in a way that will cause them a disadvantage. If the case is one that has been reported upon, or is public knowledge, you are allowed to talk about that case; but again, you need to be careful about what you specifically discuss.
There are so many other things to talk about in networking events, and your conversation should truly be centered on the other person with whom you are speaking. Ask them questions, listen, and then ask even more questions. Networking is not about you, but about the people you are meeting and what they need. And when you uncover their needs, you may find that they require your services.
In our next post I will discuss the marketing and advertising RPCs that you must abide by while networking.
All opinions, advice, and experiences of guest bloggers/columnists are those of the author and do not necessarily reflect the opinions, practices or experiences of Solo Practice University®.