A lawyer is contacted by a potential client seeking representation in a complex intellectual property dispute. The lawyer meets with the potential client for an hour, discussing the details of the case and potential strategies. No fee agreement is signed, and the potential client ultimately decides not to retain the lawyer. A few months later, the lawyer is approached by the opposing party in the same dispute, seeking representation. May the lawyer represent the opposing party?
- AYes, but only if the lawyer obtains informed consent, confirmed in writing, from both the prospective client and the new client.
- BYes, because no formal attorney-client relationship was formed, and no fee was paid.
- CNo, unless the lawyer is able to implement effective screening measures within the firm to prevent disclosure of the prospective client's information.
- DNo, because the lawyer acquired confidential information from the prospective client that could be significantly harmful to that person in the matter.
Show answer & explanationAnswer & explanation
Correct answer: D. No, because the lawyer acquired confidential information from the prospective client that could be significantly harmful to that person in the matter.
Model Rule 1.18(c) prohibits a lawyer from representing a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter. The lawyer discussed case details and strategies, likely receiving significantly harmful confidential information, making representation of the opposing party impermissible.
Why the other options are wrong
- A. While informed consent can sometimes cure conflicts, Rule 1.18(d) provides specific conditions for such consent or screening, which are not met here as the question implies the information received was 'significantly harmful'.
- B. A formal attorney-client relationship or fee payment is not required to create duties to a prospective client under Rule 1.18.
- C. Screening is a possibility under Rule 1.18(d) if the lawyer took reasonable measures to avoid exposure to more disqualifying information than was necessary and the disqualified lawyer is timely screened and written notice is given to the prospective client, but B is a more direct and stronger prohibition given the likely 'significantly harmful' information.
Duties to Prospective Clients
Even without forming a formal client-lawyer relationship, a lawyer owes duties of confidentiality and loyalty to a prospective client who consults with the lawyer about a potential representation. A lawyer cannot represent a materially adverse party in the same or substantially related matter if significantly harmful information was received from the prospective client.
- Confidentiality applies to prospective client information.
- Disqualification arises if 'significantly harmful' information is received.
- Screening and informed consent can sometimes cure the conflict (Rule 1.18(d)).
Memory trick: Even a 'Whisper' from a 'Prospect' can bind your tongue.