Welcome to the final installment of my mini-series on Rule 1.18 and the duties that lawyers owe to prospective clients.
Aside: Who knew that this series would both lead me to revisit a television show from my youth AND cause a worrisome (to me) disturbance in the force? More on each in the “PS” that follows this post. First, let’s take care of the business portion of this installment.
Installment 1 outlines the scope of the rule and its history in Vermont. Installment 2 addresses the nature & type of information that will disqualify the lawyer who met with the prospective client from later representing someone else in the matter.
Today, we address a third critical aspect of the rule: if the lawyer who met with the prospective client is disqualified from later representing someone else in the matter by virtue of having received information that could be “significantly harmful” to the prospective client, will that lawyer’s conflict be imputed to others in the same firm? Stated differently, what measures can a lawyer take to ensure that, even if disqualified, the firm will not be?
The last line of Rule 1.18(c) states:
- “If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d).”
Here’s paragraph (d):
“When the lawyer has received disqualifying information as defined in paragraph (c), representation is permissible if:
- (1) both the affected client and the prospective client have given informed consent, confirmed in writing, or;
- (2) the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; and (i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and (ii) written notice is promptly given to the prospective client.”
Paragraph(d)(1) is self-explanatory. So, on to paragraph (d)(2). What does it mean?
The first sentence in Comment [4] provides a bit of guidance:
- “In order to avoid acquiring disqualifying information from a prospective client, a lawyer considering whether or not to undertake a new matter should limit the initial interview to only such information as reasonably appears necessary for that purpose.”
In Formal Opinion 492, the ABA Standing Committee on Ethics and Professional Responsibility suggested that “to avoid receiving ‘significantly harmful information’ from a prospective client, lawyers should warn prospective clients against disclosing detailed information.” Then, after citing to Comment [4], the Committee noted:
- “This caution, however, is not intended to discourage lawyers from engaging in a thorough discussion with prospective clients in order to ascertain whether the lawyer wants to take on the representation. It is simply a reminder that the more information learned in a consultation, the more likely that the lawyer may be precluded from representing other parties in a substantially related matter.”
The Committee issued FO 492 in 2020. Last month, the Committee followed up with Formal Opinion 510: Avoiding the Imputation of a Conflict of Interest When a Law Firm is Adverse to One of its Lawyer’s Prospective Clients. Per its summary, FO Opinion 510 “addresses the ‘reasonable measures’ necessary to avoid the imputation of conflicts of interest under Rule 1.18.”
Before getting to “reasonable measures,” FO 510 does a nice job directing us to the final phrase of Rule 1.18(d)(2), reminding us that what must be avoided to avoid imputed disqualification is exposure to information beyond what “was reasonably necessary to determine whether to represent the prospective client.” The opinion advises that determining whether to represent the client likely includes acquiring sufficient information to determine:
- Whether a conflict exists;
- Whether the lawyer is competent to handle the type of matter;
- Whether the client intends to use the lawyer’s services to commit a fraud;
- Whether the lawyer has enough time to do the work in a competent & diligent fashion; and,
- The range of potential fees & expenses.
In other words, acquiring information necessary to answer these questions won’t serve to disqualify the lawyer or firm down the road.
Then, the opinion gives an example of what is NOT necessary to determine whether to represent the prospective client.
- “Certain purposes for learning disqualifying information would be unrelated to the lawyer’s determination ‘whether to represent the prospective client.’ For example, a lawyer might elicit detailed information about the matter so the lawyer could persuade the prospective client to retain the lawyer. Details about the prospective client’s litigation or transaction might enable the lawyer to impress the prospective client by offering strategic insight into how to conduct the representation or by relating the matter to the lawyer’s past experience. It is generally permissible for lawyers to promote themselves in this manner (although they must avoid giving incompetent advice or making false statements to the prospective client). However, a legitimate factual inquiry toward this end would not relate to the lawyer’s determination ‘whether to represent the prospective client.’ Rather, the inquiry would relate to the prospective client’s decision whether to retain the lawyer.”
In other words, be careful how much you try to sell yourself – you just might cause the prospective client to provide enough information to disqualify you and your firm from representing someone else in the matter.
Next, FO 510 acknowledges that before agreeing to undertake representation, lawyers typically want to be sure that the client’s claim isn’t frivolous. While recognizing the value such an inquiry, the opinion cautions that not all steps taken “to serve a legitimate purpose . . . [are] necessary to serve that purpose.” In other words, a “lawyer ordinarily – but not necessarily in every instance – can ascertain after modest inquiry whether a proposed lawsuit would likely be frivolous.”
Rather, FO 510 suggests that lawyers use Rule 1.16(a)(1) as a guide. It’s the rule that requires lawyers to decline representation if “the representation will result in violation of the rules of professional conduct or other law.” On this point, the Committee advises “[s]uch inquiry is not just permissible, but ‘reasonably necessary to determine whether to represent the prospective client.’”[1]
From there, FO 510 turns to the question of “what constitute ‘reasonable measures’ to limit exposure to more than information was reasonably necessary,” a question “on which there is limited guidance in prior opinions.” The Committee provides an answer.
While information will certainly be exchanged in an initial consultation, a “free-flowing conversation is unlikely to involve reasonable measures to limit the information being provided.” Rather, the “‘reasonable measures’ standard means that lawyers must exercise discretion throughout the initial communication.” Lawyers who fail to place limits on both the information that they seek and the information that they receive, “fall short of [the] standard.” As FO 510 notes, one reasonable measure is a reminder or warning
- “that the lawyer has not yet agreed to take on the matter and that information should be limited only to what is necessary for the lawyer and client to determine whether to move forward with an engagement.”
Finally, it is NOT an ethical violation to receive too much information during the initial consultation. Might the lawyer and firm be disqualified from a future representation for doing so? Yes. However, as FO 510 makes clear, receiving information that might be “significantly harmful” to the prospective client is not misconduct.
As always, let’s be careful out there.
[1] The Committee immediately follows with this guidance: “Once a lawyer has sufficient information to decide whether to represent the prospective client, further inquiry may be permissible, but it will no longer be ‘necessary.’ That means once a lawyer has decided there is any basis on which the lawyer would or must decline the representation, stopping inquiry on all subjects would place the lawyer in the best position to avoid potential imputation of a conflict to other lawyers in their firm. See Comment [4] to Rule 1.18.”
Post-Script
As a kid, I loved Get Smart. I couldn’t enough of Maxwell Smart, Agent 99, and their high stakes capers that characterized the eternal struggle between CONTROL & KAOS.
In response to Installment 2 of the prospective client series, a reader commented that one of the recommendations “calls to mind images of Maxwell Smart and The Chief in the Cone of Silence.” For those who don’t know, the Cone of Silence is where Control’s leader, The Chief, discussed the most sensitive matters with his agents. The reader’s comment led me to reply with this clip, a scene that shows the sophistication of the Cone of Silence. The relevant dialogue begins around the 0:50 mark.
Shortly after I posted my reply, another reader texted me this clip. I’d completely forgotten about the episode, one in which Congressional cuts to CONTROL’S budget resulted in CONTROL leasing the Cone of Silence to the CIA, an arrangement that left CONTROL with nothing but the Closet of Silence.
The trip down memory lane made me wonder if any of the actors were still alive. The first I Googled was Agent 99. Literally. I couldn’t remember the name of the actress who played Agent 99, so I Googled “Agent 99.” Turns out, the actress is Barbara Feldon. And here’s where I experienced a disturbance in the force.
When I went to Barbara Feldon’s Wikipedia page, I was startled to discover that she’d died TODAY. What are the odds?!?! I immediately searched the news for accounts of her passing.
Would you believe that I found exactly . . . NONE?
How could that be?
Surely someone would note such an icon’s passing.
So, I looked again at Wikipedia to confirm what I’d seen. Mysteriously, and as you can see for yourself here, Wikipedia no longer lists Barbara Feldon as having died on April 4, 2024. Indeed, I have no reason to believe that she is anything other than very much alive. Fortunately, I took a screenshot of the entry that listed her as having passed today. Here it is:
I don’t know who conspired me to try to fool me with the old “fake Wiki entry” trick.
All I can say is that whoever you are, you missed me by that much.
Ethical Grounds 