In an ethics opinion released by the ABA’s Standing Committee on Ethics and Professional Responsibility, the committee scrutinized what “reasonable measures” a personally disqualified lawyer should take to ensure that a conflict of interest is not imputed to his or her law firm under Model Rule 1.18. In Formal Opinion 510, the ABA encourages attorneys to ask prospective clients for the minimum information reasonably necessary to determine whether to accept the matter, as well as warning the prospective client to avoid giving more information than is requested. ABA Litigation Section leaders advise law firms to implement policies and procedures to avoid firm-wide disqualification.
ABA Model Rule of Professional Conduct 1.18 sets forth a lawyer’s duties to a prospective client, a “person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter.” According to the rule, even if a prospective client does not ultimately form a client-lawyer relationship with a lawyer, the prospective client is nonetheless entitled to confidentiality protections. Rule 1.18 further provides that any lawyer who learns confidential information from the prospective client generally may not disclose that information or use it adversely to the prospective client unless, either during the consultation or thereafter, the prospective client gives informed consent confirmed in writing.
Under Rule 1.18(c), a lawyer is disqualified from undertaking a representation in the same or a substantially related matter against a prospective client if the lawyer received “disqualifying information,” or “information from the prospective client that could be significantly harmful to” the prospective client. According to the opinion, the purpose behind this provision is that “a consultation with a prospective client may be brief and that it cannot be presumed that the prospective client provided the lawyer with information that could later be significantly harmful to the prospective client, particularly given that lawyers may have taken precautions to avoid learning such disqualifying information.”
Rule 1.18(c) provides: “If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d).” Paragraph (d) provides that the conflict of the individual lawyer will not be imputed to that lawyer’s firm in two situations. The first is “when both the potential client and the affected client provide informed consent, confirmed in writing.” The second is “when the personally disqualified lawyer took ‘reasonable measures’ to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client.” In its opinion, the committee notes that little guidance had been provided as to what constitutes “reasonable measures” and acknowledges that such determination calls for a “fact-sensitive” inquiry. Whether a lawyer in fact took “reasonable measures” as set forth in Rule 1.18(d) depends largely in part on the lawyer’s “background and experience, the client’s identity, and the nature of the engagement.”
According to the opinion, lawyers “must exercise discretion” in preliminary conversations with prospective clients. Lawyers must also “limit the information sought from prospective clients.” Thus, “seeking and obtaining” information “without limitation” would fall short of such “reasonable measure” standard. Lawyers are further encouraged to warn the prospective client that the lawyer “has not yet agreed to take on the matter and that information should be limited to only to what is necessary for the lawyer and client to determine whether to move forward with an engagement.” There is no magic language required, but the reasonableness of a lawyer’s measures “depends on whether they are designed to limit the information received before a lawyer-client relationship is established.”
“Because the inquiry is very fact sensitive, every size and type of law practice would need to implement policies tailored to their own practice and potential clients,” states Jeanne Huey, Dallas, TX, Co-Chair of the Litigation Section’s Ethics & Professionalism Committee. “Of course, no call should be taken until a firm-wide conflicts check has been run,” she advises. “The time it takes for that conflicts check, even if an hour or two, also gives the lawyer the ability to find out what they can learn independently about the potential client and case, which may aid them in deciding whether they want to go ahead and learn more information on a call or in-person meeting even if potentially disqualifying,” adds Huey.
“Law firms should also provide regular training and education to attorneys and staff regarding conflicts of interest and the importance of maintaining client confidentiality, which can help attorneys recognize and address conflict issues more effectively,” recommends Pamela Sakowicz Menaker, Chicago, IL, Chair of the Membership and Diversity Subcommittee of the Section’s Ethics & Professionalism Committee.
