In formal opinion 492, the ABA cautions lawyers about what is said during initial consultations with prospective clients, how this information could potentially lead to disqualification in a new matter, and how to mitigate this risk.
ABA Model Rule 1.18 states that if a prospective client reveals “significantly harmful information” during a consultation, the lawyer may not represent a new client with interests materially adverse to the prospective client in a substantially related matter. Determining whether information the lawyer receives could be “significantly harmful” is a fact-specific inquiry that is determined on a case-by-case basis with the focus being the potential harm in the new matter.
Examples of “significantly harmful information,” outlined by the opinion, include:
- “Views on various settlement issues including price and timing.”
- “Personal accounts of each relevant event [and the prospective client’s] strategic thinking concerning how to manage the situation.”
- “Sensitive personal information in a divorce case.”
- “Premature possession of the prospective client’s financial information.”
- “A prospective client’s personal thoughts and impressions regarding the facts of the case and possible litigation strategies.”
- “The possible terms and structure of a proposed bid” by one corporation to acquire another.”
To avoid receiving such information, the opinion highlights that “lawyers should warn prospective clients against disclosing detailed information.” Specifically, the opinion points to Comment [4] to Model Rule 1.18, which states that a lawyer “should limit the initial consultation to only such information as reasonably appears necessary” for the purpose of “considering whether or not to undertake a new matter.” Furthermore, Comment [5] states that lawyers “may condition a consultation 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 matter.”
If a lawyer did learn information that could be significantly harmful to a prior prospective client in a new matter, the lawyer’s firm can circumvent this disqualifying conflict by screening the lawyer from the new matter or by obtaining the prospective client’s informed consent, as per Model Rules 1.18(d)(1) and (2).
Read the full opinion here.
