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March 25, 2024 Top Legal News of the Week

New ethics guidance issued on avoiding conflicts of interest

A lawyer meets with a prospective client, who later decides not to retain the lawyer for a legal matter. A short time later, a partner in the lawyer’s firm is approached by a second party who has an adverse position to that of the initial prospective client.

If the firm took the case, would it constitute a conflict of interest?

On March 20, the American Bar Association Standing Committee on Ethics and Professional Responsibility released Formal Opinion 510 that provides guidance in those situations when one lawyer’s conflict extends to all others in the firm. It specifically addresses the “reasonable measures” necessary to avoid stretching the lawyer’s conflict of interest to others in the firm under Rule 1.18 of the ABA Model Rules of Professional Conduct.

The opinion notes that the initial lawyer’s need to disqualify does not extend to other lawyers in the 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.” It also explains the conflict is avoided if the firm takes precautions, such as screening the disqualified lawyer from any participation in the matter and providing the lawyer no portion of any fees.

The ABA Standing Committee on Ethics and Professional Responsibility periodically issues ethics opinions to guide lawyers, courts and the public.

The ABA Standing Committee on Ethics and Professional Responsibility periodically issues ethics opinions to guide lawyers, courts and the public.

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The opinion also offers a couple of suggestions. When obtaining preliminary information before undertaking a representation, a lawyer should minimize the risk of law-firm disqualification by accepting only information reasonably necessary to determine whether the engagement is consistent with the lawyer’s capabilities and willingness to accept the representation. The opinion also suggested getting relevant and written informed consent to avoid conflicts.

“If the lawyer learns disqualifying information and has failed to take reasonable measures to avoid receiving more disqualifying information than reasonably necessary for these purposes, and no representation ensues, the lawyer’s conflict will be imputed to the lawyer’s firm,” the opinion said.

The standing committee periodically issues ethics opinions to guide lawyers, courts and the public in interpreting and applying ABA model ethics rules to specific issues of legal practice, client-lawyer relationships and judicial behavior.

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