I don’t think this is on-line, but in an August 8 opinoin (07-02), the Iowa State Bar Association Committee on Ethics and Practice Guidelines addressed an interesting prospective client problem: the lawyer has a personal contact with a prospective client, gains confidences, but while in the process of deciding whether to take the case, he receives an unsolicited e-mail from the party that the prospective client needs to sue. The e-mail discloses confidences, too.
The opinion concluded that whether the lawyer encouraged the communication was the critical question: “Did the lawyer say or do anything that enticed or prompted the potential client to contact the lawyer and transmit confidential information.” Emphasizing that the question was difficult to answer, the Iowa opinion said that whether the lawyer had to keep the e-mail confidential turned on (1) all of its communicaiotn to see if it could “be interpreted to create a reasonable expectation that the lawyer or law firm was willing to discuss the possibility of representation” and (2) determine if the firm said or published anything “that would lead a reasonable person to believe that they could give or share factual or other confidential information with the lawyer without” first establishing an attorney-client relationship. If both questions were answered yes, the lawyer or law firm would be disqualified. It concluded by recommending “some form of notice” about confidentiality.