[textbook]Traversing the Ethical Minefield Problems, Law, and Professional Responsibility by Susan R. Martyn (z-lib.org)(1) (1)

that they have accidentally taken on a client when they offer informal consults or give
advice during public speeches or at social gatherings. Similarly, advertising and websites can
create accidental client-lawyer relationships if unknown persons reasonably rely on the
information therein provided. 4 This law imposes a pre-contractual duty of good faith on
lawyers by looking back on the matter from a reasonable nonlawyer perspective. As a result,
a lawyer’s memory of what was said or promised might not be the version that ultimately
prevails.
3. Prospective Clients When prospective clients discuss the possibility of obtaining legal
services with lawyers, implied client-lawyer relationships can develop. Although prospective
clients might not always become full-fledged clients, Togstad illustrates how they become
implied clients to the extent that they reasonably rely on a lawyer’s legal advice. Even when
lawyers make it clear that they will not take on a representation, if a lawyer offers legal
advice and gains information from such a person, two duties, however limited, attach to
such an encounter: competence in any advice offered and confidentiality that cloaks
anything the lawyer learns. 5
In addition to the formal prospective client-lawyer meeting, prospective clients lurk in
many other circumstances as well, including:
Beauty contests, where prospective clients essentially audition lawyers by
interviewing several before deciding whom to hire.
Public speeches, where lawyers offer general legal information, but often are asked
specific questions about specific facts. Especially dangerous is a response that begins
with “There is no case/redress/cause of action in that circumstance,” because a
listener who takes no further action in reliance on such an option might fail to seek
other legal help before a statute of limitations expires.
Advertising, when lawyers offer advice about specific facts. Stating that no person
should rely on this ad for advice (because every case differs, or the law provides for
certain defenses, etc.) invites further inquiries, and also explains why reliance on the
ad alone is not reasonable.
E-lawyering, where lawyers offer advice or invite specific nonlawyer inquiries on
websites or social media.
Consulting with other lawyers, where a lawyer seeks advice for a client, or advice for
the lawyer in dealing with the client. In the right circumstances, either the lawyer or
the lawyer’s client can become clients of the consulting lawyer. 6
Splitting fees with other lawyers, where eligibility for payment depends on assuming
“joint responsibility” for the representation. 7
Dealing with unrepresented persons where they seek advice or services from another
person’s lawyer. 8
Advising family members or social friends, where they seek and reasonably rely on
legal advice.
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