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Practical Advice to Avoid Disqualification when Interviewing Potential Clients: A Summary of Formal Opinion 510

Michael LeBoff

Practical Advice to Avoid Disqualification when Interviewing Potential Clients: A Summary of Formal Opinion 510
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ABA Standing Committee of Ethics and Professional Responsibility Formal Opinion 510 provides practical advice for attorneys to avoid disqualifying their entire firm because they spoke with a potential client. Under Model Rule 1.18, when a prospective client consults but does not retain an attorney, that attorney cannot be adverse to that prospective client in the same or substantially related matter. But, the conflict is not imputed to the lawyer’s firm if the lawyer took “reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client.” Formal Opinion 510 helps define what constitutes “reasonable measures.”

First, to avoid imputation, the lawyer should initially gather only information from the client for the purpose of determining whether to undertake the representation. This includes getting enough information to determine whether a conflict of interest exists, or whether the client is seeking to use the lawyer’s service for an unlawful or frivolous purpose. It also includes obtaining basic information about the case so the lawyer can determine whether he or she is competent to handle the matter, whether the client can afford to pay the attorney, and other essential matters.

Second, the information obtained must be “reasonably necessary” to this gatekeeping function. That is, an attorney typically does not need to know every detail about a case to decide whether to accept the representation. With this guideline in mind, once you hear enough information that leads you to decline the representation, the best practice is to end the conversation. The more information you hear, the more it could lead to your firm being disqualified from later representing a party adverse to the prospective client.

Third, the lawyer must take reasonable measures to avoid exposure to additional information. Prospective clients tend to yammer on about their cases, which is likely to expose you to more information than you need to hear to decide whether to accept the case. Lawyers should limit the information they obtain from prospective clients, and should warn clients that the lawyer has not yet agreed to accept their case so the information disclosed should be very high-level, basic information.

Formal Opinion 510 goes on to note that it is not an ethical violation to obtain detailed information from prospective clients. But if you do, you run the risk of disqualifying your entire firm from representing actual clients that are adverse to the prospective client in the same or similar matter.