Many potential clients assume that the information they relay to an attorney in an initial intake call will not be used against them if the attorney later represents an adverse party in a case.
But that may not hold true if the prospective client does not have a reasonable expectation of engaging the attorney, according to a recent decision denying a motion to disqualify counsel in a defamation case. The opinion highlights the importance of understanding the specific state ethics rules governing an attorney's interactions with potential clients.
Ships Passing in the Night
The disqualification dispute arose in a defamation case involving a blogger and a controversial author. Before filing a lawsuit, the author's counsel threatened the blogger with legal action if she failed to retract the allegedly defamatory story, which reported on a rape accusation against the author. The blogger contacted an attorney at a South Carolina firm who agreed to represent her on a pro bono basis.
Several days after the blogger engaged the attorney, the author's counsel contacted another attorney at the same South Carolina firm to see if that attorney could serve as local counsel in an anticipated lawsuit against several Janes and John Does, including the anonymous woman who had made the accusation reported by the blogger.
After discussing the matter via phone, the author's counsel emailed information to the attorney "[f]or conflict purposes" and requested a fee agreement "[i]f there [wa]s no conflict." The attorney responded on that same day with applicable hourly rates and stated, "I hope we get the opportunity to work together." The following day, however, the attorney sent the author's counsel an email stating, "I'm afraid we have a conflict and will not be able to assist you with this matter."
The author subsequently filed his lawsuit and issued a third-party subpoena to the blogger to uncover the identities of the Jane and John Does. The attorney engaged by the blogger entered an appearance and filed a motion to quash the subpoena. Realizing that the blogger's attorney worked at the same firm that the author's counsel had previously contacted, the author moved to disqualify the blogger's attorney for violation of the South Carolina Rules of Professional Conduct.
No Reasonable Expectation of Engagement
The court's analysis focused on the different duties to prospective clients set out in the Model Rules of Professional Conduct and South Carolina's state-specific rules. Model Rule of Professional Conduct 1.18 provides that "[a] person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client." An attorney is prevented from representing a party adverse to a potential client if the attorney's initial discussion with the potential client discloses information "that could be significantly harmful to that person in the matter."
South Carolina Rule of Professional Conduct 1.18 generally tracks Model Rule 1.18, but is different in one key respect. Unlike Model Rule 1.18's broad definition of a "prospective client," South Carolina Rule 1.18 states that "[a] person with whom a lawyer discusses the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client only when there is a reasonable expectation that the lawyer is likely to form the relationship."
This distinction made all the difference in the case. The only evidence the author provided in support of the position he was a prospective client of the attorney was the statement in her email that she hoped for "the opportunity to work together." Such "customary niceties" are not binding and are not, absent unusual circumstances, reasonably interpreted to indicate a commitment is likely, the court held. The court denied the motion to disqualify.
Know the Rules and Watch Your Words
"On its facts, the decision is not a surprising result," says Gregory R. Hanthorn, Atlanta, GA, cochair of the ABA Section of Litigation's Federal Practice Task Force and former cochair of the Ethics & Professionalism Committee. "There is no indication in the opinion that the lawyer already representing the plaintiff had provided any confidential information or been encouraged to do so," notes Hanthorn. Since the blogger's attorney apparently did not receive any information that "could be significantly harmful" to the plaintiff, as required to merit disqualification under Model Rule 1.18(c), the variant of the Model Rule expressed in the South Carolina Rule likely provided "a different route to the same destination," he adds.
Had the caller been the actual prospective client (instead of an attorney seeking local counsel for the already-represented client), the path to the same result may have been different. "The lens that courts frequently use when reviewing attorney and potential client discussions is that of the lay client," notes Hanthorn. "Rules like Model Rule 1.18 and the South Carolina analogue seek to reduce the risk of harm to the potential client that might result from saying too much too soon, including revealing confidential or secret material that could be used against the potential client," he adds.
Individuals who are unfamiliar with conflicts checks and the typical intake process may see themselves as clients applying a type of "reasonable but not necessarily expert client viewpoint" even before engaging the lawyer. "Prudence dictates telling prospective clients up front not to discuss or reveal secret or confidential information until after the lawyer or firm has confirmed that no conflicts exist," he notes.
Given the variation in state law in this area, attorneys should be familiar with their local rules when interacting with potential clients, suggests Basheer Y. Ghorayeb, Dallas, TX, cochair of the Section of Litigation's Content Management Committee and former cochair of the Ethics & Professionalism Committee. For example, attorneys should be aware of whether their state handles prospective client communications "under a set of state-specific rules or under the common law attorney-client privilege," notes Ghorayeb. Moreover, "cases applying the Model Rules do vary," adds Hanthorn.
Understanding the applicable rules is important for attorneys as well as their potential clients. "Attorneys need space to get the bare minimum of information to run a conflicts check," urges Ghorayeb. The protections afforded by these rules are also necessary to prevent a potential client or attorney from "tactically calling a bunch of lawyers to conflict them out of a case, particularly in a small or specialty bar," he adds.
Matthew S. Mulqueen is an associate editor for Litigation News.
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