ABA 2020-06-09

When does talking to someone who never hired me disqualify me from representing the other side later?

Short answer: The opinion concludes that under Rule 1.18 a lawyer who learns information from a prospective client that could be significantly harmful to that person is disqualified from later representing an adverse client in the same or a substantially related matter, unless the prospective client consents or the firm screens the lawyer. Whether information is significantly harmful is a fact-specific, case-by-case inquiry.

Disclaimer: Advisory only. Not binding precedent.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked at the bottom of this page, or PDF in the sidebar) is the authoritative source for any reliance.

View original ethics opinion (PDF)

ABA Formal Opinion 492: Obligations to Prospective Clients

Short answer: The opinion concludes that under Model Rule 1.18 a lawyer who receives information from a prospective client during a consultation that could be significantly harmful to that person may not later represent a client with materially adverse interests in the same or a substantially related matter, unless the prospective client gives informed consent or the firm screens the disqualified lawyer; whether information is "significantly harmful" is a fact-specific, case-by-case inquiry focused on its potential use in the new matter.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the American Bar Association's Model Rules of Professional Conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.

Plain-English summary

The opinion addresses the duties a lawyer owes to a "prospective client," the protections that attach to what the prospective client says, and when a consultation disqualifies the lawyer from a later adverse matter. Under Rule 1.18(a), a prospective client is "[a] person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter." The opinion notes limits: information sent unilaterally in response to general advertising, or sent by someone whose purpose is to disqualify the lawyer, does not confer prospective-client status, because, as Comment [2] puts it, "a person who communicates with a lawyer for the purpose of disqualifying the lawyer is not a 'prospective client.'"

Under Rule 1.18(b), the lawyer owes a duty of confidentiality to everything learned in the consultation even when no representation follows, protecting it the way Rule 1.9 protects a former client's information. The disqualification standard is in Rule 1.18(c): the lawyer may not represent a client with interests materially adverse to the prospective client in the same or a substantially related matter if the lawyer received information that "could be significantly harmful" to the prospective client in that matter. The opinion stresses that this "significantly harmful" element is an additional requirement beyond Rule 1.9, so the mere fact of a substantially related consultation, or simply volunteering information, does not disqualify the lawyer; prospective clients "should receive some but not all of the protection afforded clients."

The opinion explains that the standard focuses on the potential use of the information, and that "[p]ost-hoc promises by the lawyer not to use the information do not change the standard from one of potential use or harm to a standard that requires actual use or harm." It treats the inquiry as fact-sensitive, quoting authority that the harm "must be prejudicial in fact to the former prospective client within the confines of the specific matter in which disqualification is sought, a determination that is exquisitely fact-sensitive and -specific." To invoke the protection, the prospective client generally must show more than the fact of a consultation but need not reveal the substance, only matters like the date, duration, manner, and a summary of the topics, analogous to a privilege log. The opinion notes the lawyer can limit exposure by keeping an initial consultation to what is reasonably necessary, and that imputation may be avoided under Rule 1.18(d) by informed consent of both clients confirmed in writing, or by timely screening with no fee share and prompt written notice.

In practice

Under this opinion, a lawyer who consults with a prospective client owes confidentiality to what is shared even if no representation results, but is disqualified from a later adverse, substantially related matter only if the consultation produced information that could be significantly harmful to the prospective client. The opinion holds that this is a fact-specific inquiry tied to the potential use of the information, that examples include settlement positions, strategy, and sensitive personal or financial details, and that mere embarrassment or inconvenience generally does not qualify. It identifies ways to avoid or cure the problem: limiting the initial consultation to what is reasonably necessary, obtaining the prospective client's informed consent that disclosed information will not be disqualifying, and, under Rule 1.18(d), either both parties' written informed consent or timely screening of the disqualified lawyer with prompt written notice and no share of the fee.

Common questions

Q: Does a quick initial consult automatically conflict me out of representing the other side?

A: Per the opinion, no. Disqualification under Rule 1.18(c) requires that the lawyer received information that could be significantly harmful to the prospective client in the matter; the consultation alone does not disqualify the lawyer.

Q: What counts as "significantly harmful" information?

A: The opinion says it is fact-specific and focuses on the information's potential use, with examples including settlement positions, litigation strategy, and sensitive personal or financial information; mere embarrassment or inconvenience generally does not qualify.

Q: Can someone disqualify a lawyer just by contacting them first?

A: No. The opinion says a person who communicates with a lawyer for the purpose of disqualifying the lawyer is not a prospective client, and information sent unilaterally in response to general advertising does not confer prospective-client status.

Q: How can a firm keep one lawyer's consultation from conflicting out the whole firm?

A: The opinion points to Rule 1.18(d): both clients' informed consent confirmed in writing, or timely screening of the disqualified lawyer who is apportioned no part of the fee, with prompt written notice to the prospective client.

Background and rules framework

The opinion interprets Model Rule 1.18 (duties to prospective clients), including 1.18(a) (who is a prospective client), 1.18(b) (confidentiality), 1.18(c) (disqualification on "significantly harmful" information), and 1.18(d) (consent and screening exceptions), with Comments [1], [2], [4], and [5]. It compares the standard to Model Rule 1.9 (former clients) and references Model Rule 1.6 (confidentiality) and the Model Rule 1.0(e) definition of informed consent.

Citations and references

Rules of Professional Conduct:

ABA Model Rule 1.18 (prospective clients), including 1.18(a)-(d)
ABA Model Rule 1.9 (former clients; substantial-relationship comparison)
ABA Model Rule 1.6 (confidentiality), 1.0(e) (informed consent)

Other opinions cited:

ABA Formal Op. 90-358 (1990): protection of information from a would-be client
ABA Formal Op. 10-457 (2010): lawyer websites

Source

Landing page: ABA Formal Ethics Opinions index
Original PDF: aba-formal-opinion-492.pdf