Information, Potential Clients, and "Taint Shopping"

“Do you have time for a quick question?” Paradox asked. “I received an email last night from a potential client,” Paradox explained. “The message provided detailed information about the potential client’s claim against a former employer.

“I know in-house counsel at the former employer,” Paradox continued, “and would be interested in representing the former employer in the case. But I am worried this email will prevent me from taking the case.”

“It usually takes consent from both the attorney and the potential client to form an attorney-client relationship,” Ethox answered. “An unsolicited email sent to a lawyer alone should not create a disqualifying conflict.”

“A disqualifying conflict?” Paradox asked, then remembered, “Oh, you mean a conflict that we would have to get waived—or resolved with an ethics screen—to undertake the representation.”

“Yes, you remember,” Ethox commended Paradox.

“So I do not need to worry about this email?” Paradox pressed.

“Correct, as long as it was actually unsolicited,” Ethox responded. “To determine whether the email was truly unsolicited, we would likely need to review what the potential client saw before emailing.

“If the firm website invited people to submit their case information,” Ethox continued, “that might be enough for a court to find we invited the communication, so it was not unsolicited.”

“Our website does not have a pop-up telling people they do not become our client just by emailing us,” Paradox said. “But I am not sure what we say about inviting an email. I guess I need to review it.”

“Probably,” Ethox empathized. “And not just the website. We may need to consider other communications with potential clients.”

“Don’t worry,” Ethox added, “I can help you with the review.”

“Oh, good,” Paradox responded. “But if we do invite emails, then we cannot represent the former employer?”

“It is a little more complicated than that,” Ethox answered. “Under ABA Model Rule 1.18, if a potential client communicates no material confidences, the lawyer can personally decline to represent the potential client and then represent the adverse party in the very same matter, without the potential client’s consent.

“But it sounds like you did receive disqualifying confidences under Rule 1.18, so it is likely you personally would be disqualified, if you cannot get a waiver,” Ethox said. “Yet, even if you are disqualified, under Rule 1.18(d)(2), the firm could screen you and then still represent the adverse party as long as you took ‘reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client.’”

“What are reasonable measures?” Paradox asked.

“Rule 1.18 is not much help,” Ethox said. “But here it would likely involve how we dealt with prospective clients—like the pop-up window—as well as how you handled the email itself.

“If you stopped reading once you knew what the email was about, did not share it around the firm, and did not ask the sender questions, I anticipate a court would let us stay on the case, unless our invitation to receive information was really egregious.”

“This sounds complicated,” Paradox grumbled.

“It can be,” Ethox agreed. “And there is one more complication. . . . If the potential plaintiff was trying to disqualify you from representing the former employer,” Ethox said, “then Rule 1.18 provides the email is not a communication from a prospective client, so you would not be disqualified.”

“Really?” Paradox asked.

“Yes,” Ethox reassured Paradox. “The comment to Rule 1.18 explains that a person who communicates with a lawyer for the purpose of disqualifying the lawyer is not a prospective client.

“How about if I help you figure this out,” Ethox concluded.

“That would be wonderful,” Paradox answered.