Former and prospective clients - Prospective client conflict...

Learning Outcomes

After studying this article, you will be able to identify when a lawyer owes duties to a prospective client, explain how information from initial consultations can create conflicts, and apply the rules for disqualification and screening in prospective client situations. You will also be able to distinguish between former and prospective client conflicts and recognize how to avoid common pitfalls on the MPRE.

MPRE Syllabus

For the MPRE, you are required to understand the ethical rules governing conflicts of interest involving prospective clients. This includes the duties owed during preliminary consultations, the circumstances under which a lawyer or firm is disqualified from representing another party, and the procedures for screening and consent. You should be prepared to:

• Recognize who qualifies as a prospective client under the Model Rules.
• Identify when information from a prospective client creates a conflict of interest.
• Apply the rules for disqualification of a lawyer and imputation to the firm.
• Explain the use of screening and written notice to avoid firm-wide disqualification.
• Distinguish between duties owed to former clients and prospective clients.
• Understand the duty of confidentiality as it applies to prospective clients.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following best describes a "prospective client" under the Model Rules?
   1. Any person who attends a lawyer's seminar.
   2. Any person who unilaterally sends information to a lawyer.
   3. A person who consults with a lawyer about the possibility of forming a client-lawyer relationship.
   4. Only someone who pays a consultation fee.
2. If a lawyer receives significantly harmful information from a prospective client, what is the default rule regarding representation of an adverse party in the same or a substantially related matter?
   1. The lawyer may represent the adverse party without restriction.
   2. The lawyer is disqualified unless both the affected and prospective clients give informed consent, confirmed in writing.
   3. The lawyer may represent the adverse party if the information was not written down.
   4. The lawyer is only disqualified if the prospective client paid a fee.
3. Which of the following is NOT a valid way for a law firm to avoid imputed disqualification due to a prospective client conflict?
   1. Timely screening of the disqualified lawyer.
   2. Written notice to the prospective client.
   3. Having the disqualified lawyer receive no part of the fee.
   4. Ignoring the conflict if the matter is urgent.
4. What duty does a lawyer owe to a prospective client regarding information learned during a consultation?
   1. No duty of confidentiality.
   2. The same duty of confidentiality as to a current or former client.
   3. Only a duty to return documents.
   4. A duty to disclose information to the opposing party.

Introduction

Lawyers often meet with individuals who are considering hiring them but have not yet formed a client-lawyer relationship. These individuals are known as prospective clients. Even if no formal representation follows, the Model Rules impose specific duties on lawyers regarding information learned during these preliminary discussions. Mishandling these duties can lead to conflicts of interest, disqualification, and discipline.

Key Term: Prospective Client
A person who consults with a lawyer about the possibility of forming a client-lawyer relationship regarding a specific matter.

Duties Owed to Prospective Clients

When a person consults with a lawyer about possible representation, the lawyer owes that person a duty of confidentiality. This means that information learned during the consultation cannot be used or revealed to the disadvantage of the prospective client, even if the lawyer is never hired.

Key Term: Duty of Confidentiality (Prospective Client)
The obligation to protect information learned from a prospective client, prohibiting its use or disclosure except as permitted for former clients.

When Does a Prospective Client Conflict Arise?

A conflict arises if a lawyer receives information from a prospective client that could be significantly harmful to that person in the same or a substantially related matter. In such cases, the lawyer is generally prohibited from representing another client with interests materially adverse to the prospective client in that matter.

Key Term: Significantly Harmful Information
Information from a prospective client that, if used, could materially prejudice that person in the same or a substantially related matter.

Imputation of Conflicts to the Firm

If a lawyer is disqualified due to a prospective client conflict, the conflict is imputed to all lawyers in the same firm. This means the entire firm is barred from representing the adverse client unless certain conditions are met.

Key Term: Imputation
The process by which a conflict of interest affecting one lawyer extends to all lawyers in the same firm.

Exceptions: Consent and Screening

There are two main exceptions that allow a firm to avoid disqualification:

1. Informed Consent: Both the affected client and the prospective client may give informed consent, confirmed in writing, allowing the representation to proceed.
2. Screening and Notice: If the lawyer who received the information took reasonable steps to avoid exposure to more disqualifying information than necessary, and is timely screened from the matter, receives no part of the fee, and written notice is promptly given to the prospective client, the rest of the firm may represent the adverse client.

Key Term: Screening
The isolation of a lawyer from any participation in a matter through timely procedures to protect confidential information.

Distinguishing Prospective and Former Clients

The duties owed to prospective clients are similar to those owed to former clients, but not identical. The main difference is that the conflict arises only if the lawyer received information that could be significantly harmful to the prospective client. For former clients, any representation in the same or a substantially related matter that is materially adverse is prohibited unless the former client gives informed consent.

Who Is Not a Prospective Client?

A person who unilaterally sends information to a lawyer without any reasonable expectation that the lawyer will consider forming a client-lawyer relationship is not a prospective client. Lawyers may take reasonable steps to limit the information received in initial contacts to avoid unnecessary conflicts.

Worked Example 1.1

A woman emails a law firm describing details of a potential lawsuit against her employer. The firm replies with an automated message stating it cannot represent her. Later, the employer asks the firm to defend it in the same matter. Can the firm accept the representation?

Answer:
If the woman was not invited to submit information and there was no reasonable expectation of a consultation, she is not a prospective client. The firm may represent the employer, as no duty of confidentiality or conflict arises.

Worked Example 1.2

A man meets with Lawyer A for a free consultation about a possible patent infringement suit. He shares technical details and litigation strategy. Lawyer A declines representation. Later, another lawyer at the same firm is asked to represent the opposing party in the same dispute. What must the firm do?

Answer:
If Lawyer A received information that could be significantly harmful to the man, the firm is disqualified unless (1) both clients give informed written consent, or (2) Lawyer A is timely screened, receives no part of the fee, and written notice is given to the prospective client.

Worked Example 1.3

A prospective client calls a law office and leaves a voicemail with only her name and a request for a callback. The lawyer listens to the message but does not respond. Is there a conflict if the lawyer later represents an adverse party?

Answer:
No. The caller did not provide any information that could be significantly harmful. Without a substantive consultation or disclosure, no prospective client conflict arises.

Exam Warning

On the MPRE, be alert for questions where a person sends unsolicited information to a lawyer. If the lawyer did not request or invite the information, and there was no reasonable expectation of consultation, the person is not a prospective client and no conflict arises.

Revision Tip

Always check whether the information received from a prospective client is "significantly harmful" before concluding that a conflict exists.

Key Point Checklist

This article has covered the following key knowledge points:

• A prospective client is someone who consults with a lawyer about possible representation.
• Lawyers owe a duty of confidentiality to prospective clients regarding information learned in consultation.
• A lawyer may not represent a client adverse to a prospective client in the same or a substantially related matter if the lawyer received significantly harmful information.
• Prospective client conflicts are imputed to the firm unless the affected and prospective clients consent in writing, or the disqualified lawyer is timely screened and written notice is given.
• Screening must be timely, effective, and accompanied by written notice to the prospective client.
• The conflict does not arise if the person unilaterally sends information without a reasonable expectation of consultation.
• Duties to prospective clients are similar but not identical to those owed to former clients.

Key Terms and Concepts

• Prospective Client
• Duty of Confidentiality (Prospective Client)
• Significantly Harmful Information
• Imputation
• Screening