In ABA Formal Opinion 510 (Mar. 20, 2024), the ABA’s Standing Committee on Ethics and Professional Responsibility discussed the measures a lawyer in a law firm can take to minimize the risk of a disqualifying conflict of interest for the lawyer or the lawyer’s firm in the event the lawyer meets with a prospective client but does not enter into an engagement with the prospective client.
In general, a lawyer who is consulted (but not retained) by a prospective client is disqualified from representing another client that is adverse to the prospective client in a related matter if the lawyer received “disqualifying information” from the consultation, meaning information that could be significantly harmful to the prospective client if used against the prospective client, such as the prospective client’s views on potential strategies or resolution options for the matter.
However, even if a lawyer receives disqualifying information, the lawyer’s disqualification will not be imputed to the lawyer’s firm, so long as the lawyer took “reasonable measures” to avoid exposure to more disqualifying information than was “reasonably necessary” to determine whether to represent the prospective client. (The disqualified lawyer would need to be screened from participation in any representation by the law firm adverse to the prospective client in the related matter.)
- The information “reasonably necessary” to determine whether to accept representation generally should be limited to information necessary to determine whether (1) the engagement is permissible under professional standards (e.g., whether it would involve a conflict of interest and is within the lawyer’s capabilities), and (2) the lawyer is willing to accept the representation (e.g., whether the representation is economical and permitted by firm policies).
- “Reasonable measures” to avoid exposure to more information than necessary should include cautioning the prospective client at the outset of the initial consultation not to volunteer information pertaining to the matter until after the lawyer and prospective client have agreed to proceed with the representation.
The ABA opinion is based on the provisions of Rule 1.18 of the ABA Model Rules of Professional Conduct. Specific states and bar organizations may have rules regarding prospective clients that differ from Model Rule 1.18.
A copy of Formal Opinion 510 is available here: https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/ethics-opinions/aba-formal-opinion-510.pdf