Long ago, I investigated this disciplinary complaint:
- Person met with Lawyer to discuss representation in a matter;
- Person shared information about the matter with Lawyer;
- Person opted not to retain Lawyer;
- Litigation ensued;
- Opposing Party retained Lawyer; and,
- Lawyer represented Opposing Party in the same matter about which Person had consulted with Lawyer.
Back then, Vermont had yet to adopt V.R.Pr.C. 1.18, the rule that sets out a lawyer’s duties to a prospective client. Thus, as disciplinary counsel, I was left to analyze whether Lawyer had violated the rule that prohibits concurrent representation of clients with conflicting interests or the rule that prohibits representing a client whose interests are materially adverse to those of a in the same or a substantially related matter.
At the time, the general legal principle was that prospective clients were “neither fish nor fowl” for the purposes of the ethics rules. Thus, conceding that Person was not a current or former client, I argued that the spirit and intent of the conflicts rules rendered Lawyer’s representation of Opposing Party a violation.
Alas, a hearing panel of the Professional Responsibility Board disagreed. The panel concluded that my decision to charge Lawyer with a violation was not supported by probable cause. Thus, complaint dismissed.
Not long thereafter we got to work on proposing & promulgating V.R.Pr.C 1.18. It took effect on September 1, 2009.
Under the rule, a “prospective client” is a person who, in good faith, discusses with a lawyer the possibility of forming client-lawyer relationship. If no relationship ensues, the lawyer’s duty of loyalty is relaxed, but the duty of confidentiality is not.
That is, the lawyer must maintain the prospective client’s confidences as if the person had retained the lawyer. However, the lawyer may represent someone whose interests are materially adverse to the prospective client, even in a matter that is the same as or substantially related to the matter that was the subject of the consultation, as long as the lawyer did not receive information that “could be significantly harmful” to the prospective client. Depending on the steps that the lawyer took to avoid or minimize the receipt of disqualification, lawyer’s conflict might not be imputed to lawyer’s firm.
Earlier this week, the ABA’s Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 492. The opinion addresses a lawyer’s obligations to prospective clients. The ABA Journal reported the opinion here.
In my view, the opinion provides clear and helpful guidance on (1) what constitutes a “consultation;” (2) the type of information that would be considered “significantly harmful” and thereby potentially disqualifying in a subsequent matter; and (3) the steps lawyers and firms can take to avoid receiving disqualifying information in an initial consultation.
I suggest reading it. Which is my way of saying that, as I ease back into blogging after the annual mini-hiatus that comes with the CLEs and training that take place this time of year, I’m not going to regurgitate an advisory opinion that is written far better than I could.
Aside: with the adoption of Rule 1.18, I assume that the prospective client has achieved fish or fowl status. I’m not sure which.