May 2007
Practice Tips from Bar Counsel
RPC 1.18 (Duties to Prospective Client)
IF THEY’RE IN YOUR OFFICE, TREAT THEM LIKE CLIENTS
BY PHIL PATTEE, ASSISTANT BAR COUNSEL
As we have discussed in this space before, serving as counsel against a former client is very problematic. In general, cross-examining an ex-client is extremely bad form.
But what happens when you never actually represented the opposing party? What if he or she only had a brief meeting with you, so brief that you don’t remember it? What if that meeting was with another attorney in your firm?
Prior to last year, we did not have an on-point ethics rule regarding the extent to which an attorney-client relationship exists when only a consultation occurred. However, the new Rules of Professional Conduct, effective in May 2006, provide guidance for attorneys and some protection for such potentially putative clients.
Rule of Professional Conduct 1.18 (Duties to Prospective Clients) defines a prospective client as “a person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter.”
In other words, if they are in your office and talking about their legal problems or concerns, treat them like clients.
RPC 1.18 generally prohibits an attorney from revealing information learned during a consultation. No big surprise there. The new rule tracks other ethical rules regarding confidentiality.
However, RPC 1.18 states that absent a few specific exceptions, an attorney “shall not represent 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.”
Translation: If they consulted with you and provided important info about something, you probably can’t thereafter serve as opposing counsel against them in the same or a substantially related matter.
Furthermore, if you are disqualified, other lawyers in a firm with which you are “associated” might not be allowed to knowingly undertake or continue representation in such a matter.
Of course, representation would be permissible if both clients give informed consent, confirmed in writing. But, as we’ve also previously discussed in this space, the conflict waiver will not stop one of the clients (probably the one that loses) from complaining to the State Bar about you later. Accordingly, even with a waiver, it’s better to just walk away.
RPC 1.18 also permits representation by an associated law firm of the attorney if:
1. 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;
2. The disqualified lawyer is timely screened from any participation in the matter and receives no part of the associated fee; and
3. Written notice is given promptly to the prospective client.
Of course, there's also the guy who never planned to retain you. He goes to every attorney possible trying to create conflict situations for the opposing party, who’s usually his wife in their divorce matter.
His stop in your office is merely part of the scheme to cripple his wife’s case. In the past, this conduct was especially troublesome in rural areas of our state where fewer attorneys practice.
Fortunately, the “prospective client” protections afforded by RPC 1.18 do not apply to persons who communicate with an attorney “for purposes which do not include a good faith intention to retain the lawyer.”
Bottom line: If you didn’t believe in conflict checks before, believe in them now. If you talk to both potential clients, you probably won’t get either.