Under the NY Rules, a prospective client is “a person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter.” (NYRPC 1.18(a)). Potential clients who communicate “unilaterally to a lawyer, without any reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship” or communicate “with a lawyer for the purpose of disqualifying the lawyer from handling a materially adverse representation on the same or a substantially related matter” are not prospective clients. (NYRPC 1.18(e)). Accordingly, a lawyer might avoid the creation of a prospective client relationship through disclaimers that would remove any reasonable expectation of the potential client of hiring the lawyer. If a prospective client relationship is created, then the protections of Rule 1.18 are owed to the prospective client.
A client becomes a former client when the lawyer has performed all the services that she has agreed to do. A carefully drafted engagement agreement can clearly delineate when this occurs. Better still is to send the client a disengagement letter when the attorney-client relationship ends to avoid any misunderstanding. This is especially important when the representation ends earlier than anticipated, e.g., the client terminates the relationship or the lawyer does so in accordance with the ethics rules. Once a client has become a former client, the protections owed them decrease. Rule 1.9 describes the obligations of the lawyer to former clients.