I would be nervous about consulting with an attorney who has such a disclaimer. It's one thing to post anonymously to Avvo and receive general information. That's what is happening right now. It's quite another to give an attorney all your identifying information and confide your legal problem without any assurance of confidentiality.
My personal policy is that if you want a free consultation on a matter, you have to give me your name, address, and phone number. In return, you are assured that the consultation is confidential. The only thing that protects you in the end is the integrity of the attorney you consult.
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Whether or not an attorney-client relationship is established, thus creating obligatory confidentiality, is not up to the attorney's discretion, but rather, is in the rules of professional conduct and the authorities that administer the rules.
I am not licensed in New York. However, in a general sense, most applicable rules require that an attorney respect confidentiality in an office setting where a potential client comes in with the expectation of giving personal details and obtaining at least preliminary advice. But, clear exceptions are raised where a potential client indicates motive to harm themselves or another, or to commit a crime.
Does the disclaimer say “no attorney-client privilege” or “no attorney-client relationship?” It could be that he means “relationship” so no client can claim he became their lawyer without paying a retainer fee.
Did you ask the attorney whether or not what you discuss before paying a retainer is confidential? That may resolve your concern. If the attorney says YES, then you are covered. If the attorney says NO, I would think twice about speaking to him.
In my view, the law would say that the attorney-client privilege would cover a pre-retainer conversation if you are seeking legal representation and what you say is within the scope of what you are seeking representation for.
I am a former federal and State prosecutor and now handle criminal defense and personal injury/civil rights cases. Feel free to check out my web site and contact me at (212) 385-8015 or via email at Eric@RothsteinLawNY.com. The above answer is for informational purposes only and not meant as legal advice.
Most disclaimers state that no attorney-client relationship is being established before a retainer fee is paid. If the consultation is for the purpose of seeking legal advice, the discussion should be deemed privileged.
Many states have adopted a rule of professional conduct that applies to discussions with prospective clients, and that rule essentially provides that if confidential information is conveyed to the lawyer, and the disclosure of that information would be significantly harmful to the prospective client, the lawyer must keep the information confidential, even if the lawyer is not retained.
In any event, a new client should confirm with the lawyer that the initial consultation will be confidential regardless of whether a retainer fee is paid.