Conflicts and Imputation from ‘The Client That Never Was’

11 Min Read By: Keith R. Fisher

Among the factors in the devolution of the law from a learned profession to a trade is competition amongst an ever-growing pool of lawyers for an ever-shrinking pool of clients. Particularly in “eat what you kill” economic circumstances, there is tremendous pressure to generate client revenues. Law firms emphasize marketing more than ever before. So when a client prospect comes to you, and all that marketing and reputation seems to be paying off at last, you have every incentive to explore the prospect’s needs and persuade that person that you are the right person to handle the matter. Right?

Not so fast.

Recent ABA Formal Opinion 510 provides worthwhile guidance on some uncertainties in Model Rule 1.18 regarding conflicts of interest related to client prospects. Before considering the uncertainties, however, let’s first consider the rule.

A Brief Tour of Model Rule 1.18

Model Rule 1.18 begins in paragraph (a) by defining a term (not found in the Terminology section)—prospective client—simply as a person who consults a lawyer “about the possibility of forming a client-lawyer relationship with respect to a matter.” The definition is not triggered, according to Comment 2 to Model Rule 1.18, where someone “provides information to a lawyer in response to advertising that merely describes the lawyer’s education, experience, areas of practice, and contact information, or provides legal information of general interest.” The comment regards such information as having been communicated “without any reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship.”

Be aware, however, that not all legal ethics rules are identical, which underscores the importance for lawyers of always checking the rules in each jurisdiction in which they are admitted to practice. New York’s version of this rule, for example, contains an additional paragraph (e)—not found in the Model Rule—articulating two exceptions to the term prospective client: It does not include anyone who “(1) communicates information unilaterally to a lawyer, without any reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship; or (2) communicates with a lawyer for the purpose of disqualifying the lawyer from handling a materially adverse representation on the same or a substantially related matter.”[1] These exceptions in the blackletter of the New York rule track guidance in the Model Rule’s Comment [2].

Paragraph (b) of Model Rule 1.18 provides that the lawyer may not use or reveal information learned from a prospective client, even where no client-lawyer relationship ever materialized. In other words, information is protected when imparted by the “client that never was.”[2] Notice that this prohibition is unqualified and applies to any information, not just information that could be harmful to the prospective client. There is, however, an exception encompassing information of the same sort that Model Rule 1.9 would allow to be used or revealed in the case of a former client.[3]

That exception is admittedly rather opaque. First of all, Rule 1.9(c), which deals with use or revelation of information, applies only to information “relating to the representation,” which does not track well as an exception to a rule, like Rule 1.18, that applies only when there never was any representation. Be that as it may, Rule 1.9(c) does provide an exemption, “except as these Rules may permit or require,” which would encompass, for example, exceptions to confidentiality in Rule 1.6(b). In addition, Rule 1.9(c)(1) carves out using information that is “generally known,” but there is no comparable carve-out for revealing such information in Rule 1.9(c)(2).

Paragraph (c) of Rule 1.18 then contains two ukases. First, it prohibits a lawyer subject to paragraph (b) 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.[4] Second, such disqualification is imputed to other lawyers in a firm with which the disqualified lawyer is associated.

Both of these are subject to exceptions provided in paragraph (d), which is the focus of Formal Op. 510. These exceptions will permit a representation adverse to the prospective client if their elements are satisfied.

The first exception is informed consent confirmed in writing under paragraph (d)(1), and that consent must come from both the affected client and the prospective client. Such mutual consent will likely be rather rare—probably mere wishful thinking on the part of the drafters.[5]

The second exception, under (d)(2), is more likely but involves several steps, all of which must be scrupulously performed. The lawyer consulted by the prospective client (A) must have taken “reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client”; (B) must have been timely screened from any participation in the representation; and (C) can receive no part of the fee. In addition, the prospective client must promptly be given written notification.

Formal Op. 510

Formal Op. 510 focuses on imputation under Rule 1.18(d)(2), which will be required unless the lawyer “took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client . . .” (emphases added). The opinion observes that there has heretofore been little guidance on these phrases.

What information is “reasonably necessary”?

Despite the laudable efforts of Formal Op. 510 to provide that guidance, Rule 1.18(d) will inevitably remain something of a gray area. As the opinion acknowledges, “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.”

To begin with, it is clear that many a lawyer will seek to elicit lots of information from a prospective client, perhaps to impress the client with the lawyer’s acumen and experience in order to get new business. None of that is unusual or unethical. Eliciting information to facilitate self-promotion or touting the law firm’s abilities does, however, run the risk of obtaining information that is potentially disqualifying down the road. An example given in Formal Op. 510 involved lawyers who had pitched a prospective client without making efforts to limit their inquiry beyond what was “reasonably necessary” and subsequently moved to another law firm, which ended up being disqualified.[6]

Formal Op. 510 identifies as “reasonably necessary” information relating to a lawyer’s professional responsibilities, including whether:

  • there is a conflict of interest (see Model Rule 1.7 et seq.);
  • the legal work is something the lawyer can perform competently (see Model Rule 1.1);
  • the prospective client’s goals will abuse the judicial process or are frivolous (cf. Model Rule 3.1); and
  • the prospective client may be seeking a lawyer’s assistance in perpetrating a crime or fraud (see Model Rules 1.2(d) and 1.16(a)(4)).[7]

The opinion also counts as “reasonably necessary” information pertinent to the business decision whether to take on the client, which would incorporate assessments of the duration and quantum of work required, potential revenues and likelihood of getting paid,[8] professional reputation aspects, consonance with law firm policies, etc.

“Reasonable measures” to limit information to the “reasonably necessary”

Whether a lawyer, during initial conversations with a prospective client, can successfully limit the scope of their interaction so as to avoid getting information beyond what is “reasonably necessary” is uncertain. Certainly, it is worth a try. Limiting the information intake to just what is necessary to perform a conflicts check is possible, but that does not satisfy the other professional responsibilities mentioned above.

Formal Op. 510 suggests that lawyers provide a warning that they’ve not yet agreed to take on the matter and information should be limited only to what’s necessary for the lawyer to determine whether to move forward. Such an approach, even if it could be effective with a garrulous prospective client, could well prove awkward at the outset of a potential lawyer-client relationship. Moreover, as a practical matter, that inefficacy and that awkwardness could be magnified where the conversation is not in person but is conducted by telephone or over an online communications platform.

The opinion’s discussion of this issue is a well-motivated attempt to provide guidance, but unavoidably it displays an “Alice in Wonderland” quality. It seems unrealistic to believe that a lawyer can curtail the information flow when the details of the transaction or litigation are an indispensable part of the lawyer’s calculus—even if not, when viewed with the benefit of hindsight, “reasonably necessary” within the meaning of the Rule—in determining whether to take on the engagement.

Furthermore, the opinion does not touch on how to avoid misunderstandings or disputes about what was and was not communicated by the prospective client. It would seem prudent for the lawyer to ask the client’s consent (if in a jurisdiction where consent is required) to record the conversation; alternatively, someone else from the firm should be there to take copious notes of the discussion.

On the “timely screening” requirement, Formal Op. 510 deems it unnecessary in the ordinary course to commence the screen of the lawyer who dealt with the client that never was, unless and until “the law firm becomes aware of information that there is a potential conflict. The alternative of erecting an appropriate screen for each potential client would be an unnecessary and unreasonable burden and is not required by Rule 1.18.”

Remember to Check Your Own Rules

Formal Op. 510 interprets the Model Rules, but these are not the law anywhere unless they have been adopted in haec verba by the relevant jurisdiction. Many states (e.g., Ohio, Massachusetts) have adopted Model Rule 1.18 essentially verbatim, but not all have. We have already identified one state variation in New York’s definition of “prospective client.” Some other variations:

  • Whereas Model Rule 1.18(c) addresses only information from the prospective client that, if used when representing a person with interests adverse to the prospective client in the same or a substantially related matter, “could be significantly harmful to that person” (emphasis added), Florida’s version seems broader in that it applies to information that “could be used to the disadvantage of that person.”
  • D.C.’s version doesn’t mention any degree of harm and applies not to mere “information” but to a “confidence or secret” received from the prospective client. Those words are defined (not in the Terminology section but in D.C.’s Rule 1.6): “‘Confidence’ refers to information protected by the attorney-client privilege under applicable law, and ‘secret’ refers to other information gained in the professional relationship that the client has requested be held inviolate, or the disclosure of which would be embarrassing, or would be likely to be detrimental, to the client.”[9]
  • Illinois’s version of Rule 1.18(d)(2) does not require written notice (prompt or otherwise) to the prospective client.
  • In California’s version, a “prospective client” expressly includes a person’s authorized representative, and the substance of the definition arguably sweeps more broadly than forming a lawyer-client relationship, as it refers to someone who “consults a lawyer for the purpose of retaining the lawyer or securing legal service or advice from the lawyer in the lawyer’s professional capacity . . . .”
  • Texas does not have a version of Rule 1.18.

  1. N.Y. Comp. Codes R. & Regs. tit. 22, § 1200.1.18(e) (2024). Cf. Restatement (Third) of the Law Governing Lawyers § 15 cmt. c (“[A] tribunal may consider whether the prospective client disclosed confidential information to the lawyer for the purpose of preventing the lawyer or the lawyer’s firm from representing an adverse party rather than in a good-faith endeavor to determine whether to retain the lawyer.”).

  2. With apologies to Ewen Montagu, The Man Who Never Was (1954), and the 1956 film adaptation of the same name starring Clifton Webb.

  3. With regard to information not exempted under Model Rule 1.9, note that Comment [3] thereof explains that the question is whether confidential information could have been shared, not whether confidences were in fact shared. Accord Analytica Inc. v. NPD Research, 708 F.2d 1263, 1266 (7th Cir. 1983).

  4. An earlier ABA ethics opinion concluded that whether information learned by the lawyer could be significantly harmful is a fact-based inquiry depending on a variety of circumstances, including the length of the consultation and the nature of the topics discussed. See ABA Formal Op. 492 (June 9, 2020). That topic is also, of course, addressed in Model R. 1.18 cmts. [1]–[2].

  5. Ethics issues relating to seeking to increase the likelihood by getting written consent in advance are beyond the scope of this discussion.

  6. Formal Op. 510 at 8, n.13 (citing Skybell Technologies v. Ring, Inc., No. SACV 18-00014 JVS (JDEx), 2018 BL 481288, 2018 U.S. Dist. LEXIS 217502 (C.D. Cal. Sep. 18, 2018)).

  7. The opinion mentions in passing, at 6 n.11, but does not dwell on, the enhanced due diligence the ABA has recently sought to impose on lawyers to prevent money laundering and the financing of terrorism under Model Rule 1.16 and its Comment [2]; those categories should assuredly be part of what is “reasonably necessary” for purposes of Rule 1.18(d).

  8. Formal Op. 510 cites as an example Vaccine Ctr., LLC v. Glaxosmithkline LLC, No. 2:12-cv-01849-JCM-NJK, 2013 BL 414523, 2013 U.S. Dist. LEXIS 60046, *4–5 (D. Nev. Apr. 25, 2013) (finding that a lawyer sufficiently limited exposure to disqualifying information where the lawyer requested information necessary to assess whether a contingency matter would be economically feasible, even though such a determination “requires a thorough analysis and understanding of liability and damages issues because the attorney must weigh the significant amount of money and time that will be invested in representing the plaintiff with the ultimate likelihood of prevailing and recovering damages”).

  9. See also D.C. Bar Op. 374 (2018) (information from prospective client is protected from disclosure to the same extent as client information is protected by D.C. Rule 1.6).

By: Keith R. Fisher


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