The Legal Professional
Rules for lawyers, law firms and legal service organizations
It is often necessary for a prospective client to reveal information to a lawyer during an initial consultation before the decision is made by the lawyer and the client about formation of a client-lawyer relationship. To avoid acquiring "significantly harmful" information from a prospective client and therefore avoid being disqualified, a lawyer should (1) limit the initial interview of a prospective client to only such information as reasonably appears necessary for that purpose, or (2) seek the informed consent of the prospective client, confirmed in writing, to any future conflict of interest1. “Significantly harmful” information has been defined as:
[S]ensitive or privileged information that the lawyer would not have received in the ordinary course of due diligence; or if it is information that has long-term significance or continuing relevance to the matter, such as motives, litigation strategies, or potential weaknesses…[or] the premature possession of information that could have a substantial impact on settlement proposals and trial strategy; the personal thoughts and impressions about the facts of the case; or information that is extensive, critical, or of significant use2.
If a lawyer receives information from a prospective client that could be significantly harmful to the prospective client, absent informed consent, the lawyer may not later represent a client whose interests are adverse to that prospective client in the same or a substantially related matter3. To avoid disqualification, the lawyer should:
Limit the Initial Interview. When obtaining the preliminary information before undertaking representation, the lawyer should obtain from the prospective client only information sufficient to determine whether a conflict or potential conflict of interest exists and whether the engagement is one within the lawyer’s capabilities and one in which the lawyer is willing to accept4. The prospective client should be cautioned at the outset of the initial consultation not to volunteer information pertaining to the matter until after the lawyer has determined whether a conflict of interest exists, whether the lawyer is able to handle the matter, and whether the client and lawyer can come to terms5. A person who communicates information unilaterally to a lawyer, without any reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship, is not a “prospective client” within the meaning of the ethical rules.
Obtain Consent to Future Conflicts. A lawyer may, where permissible, condition initial conversations with a prospective client on the person’s informed consent that no information disclosed during the consultation will prohibit the lawyer from representing a different client in the matter6. The effectiveness of an advance informed consent is generally determined by whether the client understands the material risks and disadvantages that the future waiver of conflict entails. Such consent to future conflicts must be confirmed in writing and cannot be effective if the circumstances that materialize are such that the conflict is nonconsentable7.
Obtain Proper Waivers or Timely Screen. Generally, a conflict of interest of one lawyer arising from communications with a prospective client will be imputed to the entire firm, unless (1) both the affected client and the prospective client give informed consent, confirmed in writing, or (2) the lawyer who received confidential information from the prospective client took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client, and the disqualified lawyer is timely screened from any participation in the matter, is apportioned no fee from the matter, and written notice is promptly given to the prospective clients8.