Legal Ethics & Malpractice Reporter, Vol. 5, No. 4

Published: 1 May 2024

EDITED BY: Professor Mike Hoeflich

PUBLISHED BY: Joseph, Hollander & Craft LLC

April 30, 2024


FEATURE ARTICLE: Interviewing Prospective Clients

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.

. . .


NEW AUTHORITY: To Write or Stay Silent

In law practice, attorneys often encounter stories that seem perfect to make a best seller or a hit movie. Many lawyers want to become novelists in the model of John Grisham or other popular authors. However, the ethics of using client stories can be tricky—as one Wisconsin attorney recently discovered.

On April 24, 2024, the Wisconsin Supreme Court published its decision in the disciplinary case against a member of the Wisconsin Bar. The respondent in the case was an experienced lawyer. He published a book about a case he had handled more than a decade before the publication. In the book, he told the story of the prosecution of one of his former clients. He sought to gain permission from his former client to use confidential information, but the client denied his request. He sought to obtain trial records from the state and they, too, denied his request. Despite these defeats, the respondent wrote his book and published it himself. The book was available for purchase in the city in which the respondent and his former client lived as well as online. The book was also available in the local public library. To provide details about the book,

Attorney Merry drew from his own review of court records located at the circuit courthouse, as well as from his own recollection of events, chambers discussions or sidebars, and discussions with the prosecutor, other attorneys, experts, or private individuals—some of which might have occurred in the presence of others, but were not made in open court or in media coverage of the case at the time of the prosecution or its immediate aftermath.

In re Roger G. Merry, Case No. 2022AP35-D, — N.W.3d —, 2024 WI 162024, WL 1748846 (Wis. Apr. 24, 2024).

According to the Wisconsin Supreme Court, the book’s publication put the client’s case before the public more than a decade after it was tried, which caused her significant psychological and reputational damage. The Court believed that the case turned on the Wisconsin version of Rule 1.9(c):

(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter: 

(1) use information relating to the representation to the disadvantage of the former client except as these rules would permit or require with respect to a client, or when the information has become generally known; or 

(2) reveal information relating to the representation except as these rules would permit or require with respect to a client.

The respondent defended his action on several grounds including that his former client had not been disadvantaged, that the information he revealed in his book was “generally known,” and that the information was not subject to privilege. The Court rejected all of these arguments.

The lesson we should learn from this case is clear. Disciplinary authorities and courts take Rule 1.9(c) seriously. Any would-be attorney-author who thinks a case would make a great novel must get client permission before writing.

ETHICS & MALPRACTICE RESEARCH TIP: New Article from the Current Index to Legal Periodicals

It was a quiet month for new articles. Nevertheless, this Note on the intersection of ethics and law, as applied to the duties of mental health professionals, delves into a subject that every lawyer should consider:

  • Alexis Hulfachor, Note, A Comparative Analysis of Mental Health Professionals’ Duty to Warn across the United States: The Need for Clearly Defined Laws in Light of Recent Mass Shootings, 48 S. Ill. U. L.J. 123 (2023).

A BLAST FROM THE PAST: A Recipe for Success at the Bar

To obtain distinguished success at the bar, a man must possess great and varied qualification. He must not only be able in his closet to grapple with and conquer the most abstruse, fatiguing, and inexhaustible of studies, but he must also be thoroughly acquainted with the subtle mysteries of human nature; he must be able to penetrate with equal facility into the research of the dead, and the motives and actions of the living; he must able to wield at his pleasure all the splendors of rhetoric and eloquence, and to descend in a moment into minute and trifling technicalities; he must be able to adapt his feelings, language, and ideas, to the highest or the lowest level; he must be endowed by nature with a frame and constitution capable of enduring fatigue and anxiety, the most constant and enthralling; he must not only have commanding talents, but both energy to rouse and keep them constantly alive, and judgment and discretion to direct them. Having all these qualities, he must be full of honorable feeling, and be blessed by good fortune, or he will never succeed at the bar.” Having said this Mr. Wadsworth assured me that he had great confidence in my own judgment, advised me to think of all he had said, and whichever path I should conclude to follow, all the assistance that he could give should be fully at my command.

—Sir James Stewart, The Life of a Lawyer 25-26 (London, 1830).


About Joseph, Hollander & Craft LLC

Joseph, Hollander & Craft is a mid-size law firm representing criminal defense, civil defense, personal injury, and family law clients throughout Kansas and Missouri. From our offices in Kansas City, Lawrence, Overland Park, Topeka and Wichita, our team of 25 attorneys covers a lot of ground, both geographically and professionally.

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