BAR RULES · ANALYSIS
What a firm owes a prospective client it never signs
Most intake systems treat the people who did not become clients as leads to recycle. At a law firm they are prospective clients under Rule 4-1.18, and what they told you is confidential whether or not you ever sent a retainer. That changes how the intake record is built, stored, and handed off.
We are not attorneys and this is not legal advice. Rule 4-1.18 has conditions and exceptions this piece does not cover; how it applies to your firm’s intake is a question for your Bar counsel. This is about building the intake so the rule is easy to honor.
The rule in one paragraph
A person who consults a lawyer about the possibility of forming a client-lawyer relationship is a prospective client. Even when no relationship follows, the lawyer may not use or reveal information learned in the consultation, with limited exceptions, and the information can create conflicts for the lawyer in later matters. That is Rule 4-1.18, and it starts at the first message, not at the signature.
WHAT THAT MEANS FOR THE INTAKE RECORD
Five things the intake should do because of it
- Ask for less on the form. The intake needs the matter type, the opposing party, the key date, and how to reach the person. It does not need the whole story. Every fact the form collects is a fact the firm is now responsible for, so the form asks what a screening needs and the attorney asks the rest in the consult.
- Keep the voice agent out of the facts. An agent that takes a name, a number, and a reason does not create a transcript full of matter detail. An agent that asks "tell me what happened" does, and that transcript is now confidential information the firm holds.
- Access by role. Intake staff see what they need to screen and book. The full record is visible to the people the firm designates. A prospective client’s facts should not be readable by everyone with a login.
- Keep the declined ones. A person the firm declined after a conflict check is exactly the person whose name has to be findable in a later check. The card moves to Not A Fit and stays searchable; it is not deleted to tidy the board.
- Do not push the record into the client system before engagement. Putting a prospective client’s facts into the case management software before the conflict clears is how a firm ends up with the other side’s information in its own matter files. The intake lives in the intake system until the retainer is signed.
What this rules out
Selling or sharing intake data with anyone. Running ads against it. Letting a marketing agency read the inbox. Using a general-purpose CRM whose vendor treats your contacts as its own dataset. None of these is unusual in other industries and all of them are a problem here. It also rules out a vendor that will not sign a Data Processing Addendum, publish its subprocessors, and delete on request.
Where the vendor sits
Aday Interactive is the firm’s data processor under a signed DPA, with role-based access, encrypted infrastructure, a published subprocessor chain, and export and deletion on request. What the firm does with the record is governed by the rule; what the vendor may do with it is governed by the DPA, and the DPA says: nothing but hold it for the firm.
Questions we get asked about this
Should the firm delete declined inquiries?
No. A person the firm declined after a conflict check is exactly the name a later check has to find. The card moves to Not A Fit and stays searchable; deletion is a retention decision the firm makes deliberately, not board hygiene.
Can a marketing agency see the intake inbox?
Not without the firm deciding it and the agency having its own agreement. Access is by role, and a prospective client's disclosures are confidential under Rule 4-1.18 whether or not the firm was engaged.
Related
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