Last month, the ABA Committee on Ethics and Professional Responsibility published Formal Opinion 510, which supplements Formal Opinion 492. Both opinions clarify points about Rule 1.18, which provides rules for dealing with potential conflicts that may arise when interviewing prospective clients—rules that differ significantly from those that apply under Rule 1.9, governing conflicts that may arise generally with former clients.

Kansas Rule of Professional Conduct 1.18 reads:

(a) A person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.

(b) Even when no client-lawyer relationship ensues, a lawyer who has learned information from a prospective client shall not use or reveal that information, except as Rule 1.9 would permit with respect to information of a former client.

(c) A lawyer subject to paragraph (b) 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, except as provided in paragraph (d). 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).

(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

(3) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and

(4) written notice is promptly given to the prospective client.

MRPC 4-1.18 reads:

(a) A person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.

(b) Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation, except as Rule 4-1.9 would permit with respect to information of a former client.

(c) A lawyer subject to Rule 4-1.18(b) 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, except as provided in Rule 4-1.18(d). If a lawyer is disqualified from representation under Rule 4-1.18(c), 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 Rule 4-1.18(d).

(d) When the lawyer has received disqualifying information as defined in Rule 4-1.18(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 the disqualified lawyer is timely screened from any participation in the matter.

Formal Opinion 492 provided guidance as to what kind of information learned from a prospective client would be considered “disqualifying information” such as “views on the potential resolution options, personal accounts of relevant events, sensitive personal information, and strategies.” The central point made in Opinion 492 was that a lawyer faced with a question of whether information constituted “disqualifying information” would require a “fact-based” inquiry.” Opinion 492, however, did not advise on certain other aspects of the interpretation of Rule 1.18. 

Formal Opinion 510 attempts to fill those gaps. It begins by advising on what information a lawyer should seek to learn from a prospective client:

The initial question is whether particular information that a lawyer elicited from a prospective client at a preliminary meeting relates to “whether to represent the prospective client.” Not all information solicited from or provided by a prospective client will relate to this determination. The type of information that lawyers may obtain to determine “whether to represent the prospective client” principally falls into two categories, which may overlap: first, information may relate to the lawyer’s professional responsibilities (i.e., whether the rules permit the lawyer to take on a matter), and, second, information may relate to the lawyer’s more general business decisions (i.e., whether the lawyer wants to accept the matter). The former category would naturally include information that is necessary to ensure compliance with legal and ethical obligations, including those set forth in the Model Rules of Professional Conduct. This could conceivably include, among other things, sufficient information to determine whether the lawyer could handle the matter competently (Rule 1.1), whether the client or prospective client seeks to use the lawyer’s services to commit or further a crime or fraud (Rules 1.2(d) and 1.16(a)(4)), whether the lawyer would be able to communicate effectively with the prospective client (Rule 1.4), whether the lawyer has a conflict of interest (Rules 1.7-1.12 and 1.18), and whether all of the prospective client’s potential claims would be frivolous (Rule 3.1). But it is very possible that less than all information that is responsive to these factors—particularly the merits of potential claims—is reasonably necessary to determine whether to undertake the representation.

The Opinion concedes it is ordinarily necessary to “seek the identity of other relevant parties, witnesses, and counsel” to identify conflicts of interest. But it opines that “detailed information” about the matter may not necessarily relate to a lawyer’s determination “whether to represent the prospective client.”

The Opinion emphasizes that determining whether an attorney has disqualifying information does not turn on the lawyer’s purpose in requesting information, but on the necessity of the information for deciding whether to take on the representation:

A lawyer might permissibly undertake a very detailed inquiry into the matter before deciding whether to accept it. But such a permissible inquiry may not be the same as an inquiry that is “reasonably necessary” such that the lawyer’s conflict is not imputed to the firm. In general, the rules distinguish situations where lawyers’ conduct serves a legitimate or permissible purpose and those where the conduct is “necessary” to serve that purpose. It is easier to show that the lawyer’s conduct was intended to serve a legitimate purpose than to show that it was necessary to serve that purpose.

The Opinion discussed various reasons why an attorney may need lots of information to decide whether to proceed, but cautions: 

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.

After the discussion as to how much information is “reasonably” necessary for a lawyer to glean from a prospective client, Opinion 510 moves on to the question of what “reasonable measures” a lawyer should take to avoid a prospective client giving more information than is necessary. The Opinion points out that there is a range of approaches that a lawyer may take from a “free-flowing conversation” to a conversation of limited scope. The first, of course, may increase the risk of disqualification under Rule 1.18 since the lawyer would almost certainly receive “disqualifying information” as discussed in Opinion 492. However, the second may not provide the lawyer with all of the information the lawyer reasonably needs and might well violate the inquiry necessary to assure a lawyer that he does not violate Rule 1.16’s prohibitions of certain representations. The ABA concludes:

Rule 1.18(d)(2)’s “reasonable measures” standard means that lawyers must exercise discretion throughout the initial communications, while the lawyer and prospective client are considering whether to enter into a lawyer-client relationship. Lawyers must limit the information sought from prospective clients, and those who seek and obtain information without limitations fall short of that standard. 

The Opinion suggests lawyers may avoid learning disqualifying information and imputing conflicts to other lawyers in their firms by warning the prospective client that she 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. However, stating that such a warning need not have any “particular wording” is not very helpful in that it does not provide any safe harbor formula that lawyers can use. If a lawyer decides to provide Rule 1.18 warnings to prospective clients, the language used will be immensely important and may be subjected to judicial scrutiny. Thus, lawyers should choose such language with great care to ensure that it is effective and defensible before a disciplinary panel or judge.

The opinion concludes with very brief advice about screening when a lawyer does receive too much information and might be disqualified unless screening of that lawyer is instituted. More extensive guidance would have been helpful.

All in all, ABA Formal Opinion 510 provides important guidance regarding factors to consider when screening prospective clients.

READ THE FULL ISSUE OF LEMR, Vol. 5, No. 4