February 11, 2021 Articles

ABA Formal Opinion 492: Confidentiality, Conflicts, and “Significantly Harmful” Information

The ABA clarifies the obligations resulting from a consultation with a prospective client from those owed to a current or former client.

By Tiffany Rowe
A client-lawyer relationship may be formed during a consultation.

A client-lawyer relationship may be formed during a consultation.

Pexels | mentatdgt

On June 9, 2020, the American Bar Association’s Standing Committee on Ethics and Professional Responsibility published Formal Opinion 492 to provide greater clarity regarding when an exchange with a potential client creates certain duties or limitations on the lawyer (or lawyer’s firm) even though an attorney-client relationship does not exist. The opinion distinguishes the obligations resulting from a consultation with a prospective client from those owed to a current or former client. Notwithstanding that distinction, a consultation with a prospective client imposes certain duties of confidentiality regarding the information received and may also create instances where the exchange of information with a lawyer creates a conflict that impacts the lawyer’s ability to take on other matters.

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