Question: Prospective Client met with Lawyer to discuss representation in a property dispute matter with a neighbor. Prospective Client brought in some photos and a copy of the deed for Prospective Client’s property for the initial consultation and left those with Lawyer. Lawyer took a few notes during the initial consultation and Prospective Client also completed an intake worksheet that was left with Lawyer. Lawyer did some preliminary research and sent an engagement agreement to Prospective Client. Prospective Client refused to sign the engagement agreement, so Lawyer declined to undertake the representation and returned the photos and copy of the deed to Prospective Client. Prospective Client is now asking Lawyer for Prospective Clients “file,” including the initial research completed by Lawyer. Is Lawyer required to provide Prospective Client with Lawyer’s initial research and provide a “file” to Prospective Client?

Answer: No, Prospective Client is only entitled to the photos and copy of the deed left with Lawyer during the initial consultation. See Informal Opinion 970182.

Rule 4-1.18 on prospective clients provides guidance in Comment [1] that prospective clients may provide documents or other property to lawyers and rely on the lawyer’s advice. It notes that consultations with prospective clients usually are limited in time and depth and leave both the prospective client and the lawyer free (and sometimes required) to proceed no further. Hence, prospective clients should receive some but not all of the protection afforded to clients.

Rule 4-1.18, Comment [8] provides for a lawyer’s duties when a prospective client entrusts valuables or papers to the lawyer’s care and references Rule 4-1.15, which requires lawyers to safeguard property of clients or third persons and to return it.

Rule 4-1.22 specifically governs client files, as does Formal Opinion 115.

Since Comment [8] to Rule 4-1.18 references Rule 4-1.15 on safekeeping property as to prospective client documents, and Comment [1] to Rule 4-1.18 notes some, but not all, of the protection afforded to clients are received by prospective clients, it is the informal opinion of this office that that prospective clients do not receive file retention rights since they never technically become clients as required by Rule 4-1.22. Thus, documents or property of prospective clients should be returned to the prospective clients if the representation is declined by either the lawyer or the prospective client in accordance with Rule 4-1.15. Rule 4-1.22 and Formal Opinion 115 protections do not attach to prospective clients. Additionally, in accordance with Rule 4-1.16(d), when declining or terminating representation, papers and property should be returned.

In this matter, Lawyer is not required to provide initial notes or research to Prospective Client since no client-lawyer relationship ensued from the initial consultation. See also Scope [17].

Informal Opinions are ethics advisory opinions issued by the Office of Legal Ethics Counsel to members of the Bar about Rule 4 (Rules of Professional Conduct), Rule 5 (Complaints and Proceedings Thereon), and Rule 6 (Fees to Practice Law) pursuant to Missouri Supreme Court Rule 5.30(c). Written summaries of select Informal Opinions are published for informational purposes as determined by the Advisory Committee of the Supreme Court of Missouri pursuant to Rule 5.30(c). Informal opinion summaries are advisory in nature and are not binding. These opinions are published as an educational service and do not constitute legal advice.

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