A lawyer talked to a prospective client but did not take the case; can the lawyer's firm still represent someone adverse to that prospective client without disqualifying the whole firm?
ABA Formal Opinion 510: Avoiding Imputation From a Prospective-Client Consultation
Short answer: The opinion concludes that a lawyer who became personally disqualified by receiving disqualifying information from a prospective client avoids imputation of that conflict to the firm only if the lawyer took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to decide whether to represent the prospective client, the lawyer is timely screened and shares no fee, and prompt written notice is given.
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 picks up a question left open by Formal Opinion 492: when a lawyer consults with a prospective client who does not become a client, and the lawyer is therefore personally disqualified under Rule 1.18(c), what does the lawyer have to have done to keep that disqualification from being imputed to the whole firm under Rule 1.18(d)(2)? As the opinion frames it, "this opinion addresses the 'reasonable measures' necessary to avoid the imputation of conflicts of interest under Rule 1.18."
The opinion explains that information bearing on "whether to represent the prospective client" has two overlapping sides: whether the rules permit the lawyer to take the matter (competence, crime or fraud, conflicts, and the like) and whether the lawyer is willing to take it as a business matter (time, fees, fit, firm policy). But only information "reasonably necessary" to that decision is protected; the opinion stresses that "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." Some factual inquiry into a potential matter is reasonably necessary, mainly to avoid prejudicing a client through a later withdrawal, but detailed investigation of a contingency case's feasibility, while permissible, is generally not reasonably necessary.
The opinion ties the "reasonable measures" idea to the lawyer's behavior during the consultation. Per the opinion, "lawyers must limit the information sought from prospective clients, and those who seek and obtain information without limitations fall short of that standard." A free-flowing conversation is not enough. One concrete measure is to caution the prospective client at the outset not to volunteer information beyond what is specifically requested. The opinion also notes, importantly, that "failing to take 'reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client' is not misconduct"; it simply triggers imputation unless cured by informed written consent or by declining the matter.
On screening, the opinion explains that "once a lawyer has sufficient information to decide whether to represent the prospective client, further inquiry may be permissible, but it will no longer be 'necessary.'" Screening is "timely when it takes place once a law firm becomes aware there is a potential conflict," not as a preemptive routine for every consultation.
In practice
Under this opinion, a lawyer who intakes prospective clients preserves the firm's ability to take adverse matters by limiting the information sought, cautioning the prospective client not to volunteer more than is asked, and stopping the inquiry once there is enough to decide whether to take the case, particularly once any basis to decline appears. The opinion holds that where the lawyer did take those reasonable measures, the firm can avoid imputation through timely screening of the disqualified lawyer, no sharing of the fee, and prompt written notice to the prospective client; where the lawyer did not, the firm's options are informed written consent from the affected parties or declining the adverse matter.
Common questions
Q: Does a brief consultation with a prospective client disqualify the lawyer's whole firm?
A: Not automatically. Per the opinion, the firm can avoid imputation under Rule 1.18(d) if the lawyer took reasonable measures to limit the information received, is timely screened, shares no fee, and the firm gives prompt written notice, or if the affected parties give informed written consent.
Q: What are the "reasonable measures" the lawyer must take?
A: The opinion says the lawyer must limit the information sought to what is reasonably necessary to decide whether to take the matter, and one such measure is cautioning the prospective client at the outset not to volunteer information beyond what is specifically requested.
Q: Is it misconduct to let a prospective client say too much?
A: No. The opinion is explicit that failing to take reasonable measures is not itself misconduct; it just means the conflict is imputed to the firm unless cured by informed written consent or by declining the matter.
Q: When does the firm have to screen the disqualified lawyer?
A: Per the opinion, screening is timely when it occurs once the firm becomes aware there is a potential conflict in representing someone adverse to the former prospective client, not as a preemptive step for every consultation.
Background and rules framework
The opinion interprets Model Rule 1.18 (duties to prospective clients), especially 1.18(c) (disqualification on receipt of significantly harmful, or disqualifying, information) and 1.18(d)(2) (avoiding imputation through reasonable measures, timely screening, no fee, and prompt written notice). It reads Rule 1.18 against Rule 1.9 (former clients), Rule 1.10 (imputation and screening), and the August 2023 addition of Rule 1.16(a)(4), which makes some intake inquiry reasonably necessary. It continues the analysis begun in Formal Opinion 492.
Citations and references
Rules of Professional Conduct:
- ABA Model Rule 1.18 (prospective clients), including 1.18(b), (c), and (d)
- ABA Model Rule 1.10 (imputation; screening), 1.9 (former clients)
- ABA Model Rule 1.16(a) (duty to inquire), 1.0(c) (definition of firm)
- ABA Model Rule 1.1 (competence), 1.2(d), 1.4, 3.1 (referenced for intake inquiry)
Cases:
- Skybell Technologies, Inc. v. Ring, Inc., 2018 U.S. Dist. LEXIS 217502 (C.D. Cal. 2018), firm disqualified where no further measures taken
- Vaccine Ctr., LLC v. GlaxoSmithKline LLC, 2013 U.S. Dist. LEXIS 60046 (D. Nev. 2013), sufficient limitation and timely screening
Other opinions cited:
- ABA Formal Op. 492 (2020): significantly harmful information and the open imputation question
- ABA Formal Op. 10-456 (2010): "necessary" versus permissible disclosure
See also
- ABA Formal Op. 513: Duty to Inquire Into Each Representation
- ABA Formal Op. 507: Office Sharing Arrangements
- CA COPRAC Op. 2021-205: Duties to a Prospective Client
Source
- Landing page: ABA Formal Ethics Opinions index
- Original PDF: aba-formal-opinion-510.pdf