Update: This post was completed before last night’s College Football Championship game ended. Congrats to Clemson…and to my Dad. He lives in Flat Rock, NC, just over an hour from Clemson. Last week he entered his first “Five for Friday” and in his entry wrote “Clemson by 6.”
Lawyer receives an unsolicited email from a prospective client who, as it turns out, is adverse to one of Lawyer’s current clients. What now?
Part 1 of this series is HERE.
Part 2 of this series is HERE.
For part 3, I’ll focus again on this hypothetical:
“Dear Lawyer – I heard that you’re an expert in labor law. Well, I’m about to blow the whistle on my employer for all the illegal stuff that goes on over there. I’d like to talk to you before I do. One thing that worries me is that they’ll fire me. And, on that, I’ve been running a fantasy football league for the last 5 years. Each week, I spend about 8 hours of work time on the league and I use my work computer and email to send league updates. My manager is in the league. She told me that as I long as I get all my regular work done, it’s okay to do the league stuff but still put in for 40 hours. Is she right? Or will that give them an out? Please respond so we can set up a meeting. Thank you. Sincerely, Person.”
Of course, Employer is a current client of Lawyer’s.
In part 2, I posited that Rule 1.18(b) prohibits Lawyer from forwarding the e-mail to Employer. Today, let’s look at this scenario: Employer asks Lawyer for legal advice related to Person’s employment.
Again, Rule 1.18 applies. Rule 1.18(c) states that a lawyer cannot:
- represent a client with interests materially adverse to those of a prospective client’s
- in the same or substantially related matter
- if the lawyer received information that could be significantly harmful to the prospective client.
So, in our scenario, if the two matters are the same or substantially related, and if the e-mail constitutes information that could be significantly harmful to Person, then Lawyer cannot represent Employer.
There are two exceptions to the general rule.
The first is in Rule 1.18(d)(1). For the purposes of our scenario, even if Lawyer received information that could be significantly harmful to Person,
- Lawyer may represent Employer in the same or substantially related matter
- if both Person & Employer give informed consent, confirmed in writing.
Why Person would give informed consent is beyond me and might lead someone to question whether the “consent” was, in fact, informed. “Informed consent” is defined in Rule 1.0(e).
The second exception is in Rule 1.18(d)(2). Turning again to our scenario, even if Lawyer received information that could be significantly harmful to Person,
- Lawyer may represent Employer in the same or substantially related matter if:
- Lawyer took reasonable measures to review no more information from Person than was reasonably necessary to determine whether to represent Person; and,
- Lawyer is timely screened from participation in the matter and is apportioned no portion of the fee from the matter; and,
- written notice is promptly given to Person.
A few thoughts.
- “Reasonable measures to review no more information from prospective clients than is reasonably necessary to determine whether to represent client.” To me, this suggests a rigorous process for reviewing incoming e-mails. One idea: having a non-lawyer assistant conduct an initial conflict screening. Here, it would’ve been obvious that Employer was a current client.
- “Lawyer is timely screened .” Clearly, this provides no solace for the sole practitioner who reads too much before realizing that there’s a conflict.
Finally, don’t forget about Rule 1.7. It’s the general conflict rule and prohibits a lawyer from representing a client if there is a significant risk that the representation will be materially limited by the lawyer’s duties to another client, former client, or third person.
Returning to our scenario one last time: in Part 2, we established that Lawyer most likely owes a duty of confidentiality to Person. Thus, under Rule 1.7, if there is a significant risk that representation of Employer will be materially limited by complying with that duty, Lawyer has a conflict.