ABA issues ethics guidance on avoiding conflicts with unretained prospective clients
The American Bar Association Standing Committee on Ethics and Professional Responsibility released a formal opinion recently that provides guidance on when a lawyer’s conflict is imputed to all others in the lawyer’s firm ─ specifically when a lawyer discusses a legal matter with a prospective client and the client does not retain the lawyer or the firm.
Formal Opinion 510 addresses the “reasonable measures” necessary to avoid imputing the lawyer’s conflict of interest to the firm under Rule 1.18 of the ABA Model Rules of Professional Conduct. Under the model rule, a lawyer who was consulted about a legal matter by a prospective client but not retained could be disqualified from representing another client who is adverse to the prospective client in the same or a substantially related matter. This could occur if the lawyer received from the prospective client “disqualifying information,” viewed as information that could be significantly harmful to the prospective client in the matter.
Jonathan Grabb, The Florida Bar’s ethics counsel, said Florida’s corollary to Model Rule 1.18, Rule 4-1.18 of Rules Regulating The Florida Bar, applies to any information “that could be used to the disadvantage” of a prospective client in the matter, rather than only information that is “significantly harmful” to the prospective client.
The ABA says the formal opinion marks the first instance in which the standing committee provides guidance to lawyers on what “reasonable measures” they might take to avoid the conflict from being extended to all others in the firm. The opinion notes that if the lawyer “took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client,” and the firm takes specified procedural precautions, then the lawyer’s conflict of interest does not impute to others in the lawyer’s firm.
“When obtaining preliminary information before undertaking a representation, a lawyer who seeks to minimize the risk of law firm disqualification should obtain from the prospective client only information reasonably necessary to determine whether the engagement is one permitted under the rules (including whether the engagement is one within the lawyer’s capabilities), and whether it is one which the lawyer is willing to accept,” Formal Opinion 510 said.
The opinion suggested an additional measure to avoid exposure to more disqualifying information than is reasonably necessary could be for the lawyer to warn the prospective client that the client only provide the information requested by the lawyer. A lawyer might also condition a consultation with a prospective client on the person’s informed consent that no information disclosed during the consultation will prohibit the lawyer from representing a different client in the matter and expressly consent to the lawyer’s later use of information received from the prospective client.
It added: “If the lawyer learns disqualifying information and has failed to take reasonable measures to avoid receiving more disqualifying information than reasonably necessary for these purposes, and no representation ensues, the lawyer’s conflict will be imputed to the lawyer’s firm.”
