Introduction. Last month, The American Bar Association (“ABA”) Standing Committee on Ethics and Professional Responsibility released Formal Opinion 492, which explains how a prospective client consultation limits the lawyer or her firm from accepting a new client with materially adverse interests to the prospective client. ABA Comm. On Ethics & Prof’l Responsibility, Formal Op. 492 (2020). The short answer is that a lawyer is prohibited from accepting a new matter if the lawyer received information from a prospective client that could be significantly harmful to the prospective client in said new matter. This opinion is particularly important for attorneys or practice groups who encounter the same set of individuals or companies as a result of the work they do.
The ABA Formal Opinion is based on the ABA Model Rules of Professional Conduct. The Model Rules were the primary source material for the comprehensive revisions to the North Rules of Professional Conduct undertaken in both 1997 and 2003. For Rule 1.18, in particular, the Model Rule and the North Carolina Rule mirror each other both in the Rule and its comments.
Below is a summary of the opinion, including tips for avoiding disqualification as a result of consultations with prospective clients.
Who is a prospective client? Model Rule 1.18(a) provides that a “prospective client” is one “who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter.” Model Rules of Prof’l Conduct r.1.18 (Am. Bar Ass’n, 1983) (“Model Rule(s)”). If someone merely communicates information unilaterally to a lawyer, that person does not necessarily become a prospective client. The lawyer’s advertising matters in determining whether someone would be considered a “prospective client.” If, on the one hand, a lawyer specifically requests or invites submission of information about a prospective representation without clear warnings that limit the lawyer’s obligation, an electronic communication by the prospective client would likely constitute a consultation. If, on the other hand, the prospective client sends information in response to advertising that merely describes the lawyer’s education and areas of practice or provides general legal information, that will not make the person a prospective client. Importantly, if a person communicates with a lawyer for the purpose of disqualifying the lawyer, she is not a prospective client. This can happen, for example, in contested divorce cases. The opinion cites Bernacki v. Bernacki, 1 N.Y.S.3d 761, 764 (Sup. Ct. 2015), a NY opinion in which a “husband in a divorce sent an email to his wife titled ‘Attorneys Which [sic] Whom I Have Sought Legal Advice’ and then listed ‘twelve of the most experienced matrimonial attorneys in the county,’ each of whom the husband asserted ‘would conflict themselves out’ or be subject to disqualification.’” Formal Op. at 3 n 10.
How is a prospective client different from an actual client? For former clients—actual clients, not just prospective clients—a lawyer may not represent an adversary if the subject matter of the two representations is substantially related. Model Rule 1.9. If the lawyer could have obtained confidential information from her client that would be relevant in the second representation, then the lawyer cannot enter into the second representation. See Comment  to Model Rule 1.9. A prospective client, however, must have actually communicated information that could be “significantly harmful” in the second representation. Model Rule 1.18.
What is “significantly harmful” information? Citing the North Dakota Supreme Court, the opinion explains “significantly harmful” information includes “sensitive or privileged information that the lawyer would not have received in the ordinary course”; “information that has long-term significance … such as motives, litigation strategies or potential weakness”; or “the premature possession of information that could have a substantial impact on settlement proposals and trial strategy.” Formal Op. at 7. The opinion also cites various examples of “significantly harmful” information from state opinions, including:
views on settlement issues;
personal accounts of strategic thinking about how to manage the situation;
an 18-minute phone call in which the firm outlined potential claims against a defendant and discussed specifics as to the amount of money needed to settle a claim;
a presentation, by a corporation, of underlying facts and legal theories about a proposed lawsuit;
sensitive personal information in a divorce case;
a prospective client’s personal thoughts on the facts of the case and possible litigation strategies;
possible terms of a bid proposed by one corporation to acquire another.
Formal Op. at 6.
On the other hand, specific instances where information was not “significantly harmful” include:
a lawyer who avoided learning the details of a case in a half-hour consultation;
a tenuously related matter that occurred about 10 years earlier;
a one-day consultation in which the prospective client’s in-house lawyer regulated disclosures and nothing indicated confidential information disclosed could be detrimental to the client.
Formal Op. at 8.
How to avoid disqualification. First, limit the initial consultation with a prospective client to the reasonably necessary information for the purpose of considering whether to take on the matter. Comment  to Model Rule 1.18. Second, a prospective client can expressly agree to the lawyer’s subsequent use of information. “This may include, for example, an explicit caution on a website intake link saying that sending information to the firm will not create a client-lawyer relationship and the information may not be kept privileged or confidential.” Formal Op. at 9.
Even if a lawyer has received “significantly harmful information” from a prospective client, the lawyer can represent the second client if both the affected client and the second client give informed consent and that consent is confirmed in writing. Informed consent is a defined term and requires the lawyer to communicate adequate information and explanation about material risks and reasonably available alternatives to the proposed course of conduct. Model Rule 1.0(e). Alternatively, if the lawyer who received the information took measures to avoid exposure to more information than was reasonably necessary to determine whether to represent the prospective client, she can be screened from the second matter. That lawyer must be timely screened from the second matter, must not be given any portion of the fee therefrom, and must give written notice to the prospective client.
Conclusion. In order to avoid disqualification, limit the client intake process so that a lawyer or firm does not obtain “significantly harmful information” in a consultation. If a lawyer or firm has an online intake process, be sure to have the appropriate disclaimers on the website—i.e., caution prospective clients that sending information will not create a client-lawyer relationship and the information they provide may not be kept confidential. If a lawyer or firm has an intake process that occurs via phone or in-person, try to limit the initial consultation to the reasonably necessary information to make a determination about whether to take the representation and document the information received during that consultation. Also, have adequate conflict checking procedures in place so that any prospective client conflicts will be caught immediately, and adequate waivers can be sought or screens can be put in place.
 Best practice is to screen the attorney as soon as the second matter comes in the door.
About the Author
Lauren Snyder is an associate with the law firm of Harris, Wiltshire & Grannis LLP. Ms. Snyder practices in Washington, D.C. and Raleigh, North Carolina, and focuses her practice on legal ethics and malpractice, complex civil litigation, and government enforcement actions.