Is information a would-be client shares during an initial consultation protected even if the lawyer never takes the case, and can it disqualify the lawyer or firm from representing someone else in the same matter?
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This page answers the general question as of 1990. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
The committee considered what protection attaches to information a person shares with a law firm while seeking representation the firm never provides, and how that information can disqualify the firm from representing an existing or new client in the same or a related matter. It held that "information imparted to a lawyer by a would-be client seeking legal representation is protected from revelation or use under Model Rule 1.6 even though the lawyer does not undertake representation of or perform legal work for the would-be client." The duty arises because the main purpose of the confidentiality rules is to encourage people to consult lawyers freely, and that purpose applies to a good-faith consultation whether or not it ripens into a representation.
Because information known to one lawyer in a firm is ordinarily imputed to all lawyers in the firm, the committee reasoned that it does not matter that the would-be client consulted a lawyer other than the one handling an adverse client's matter; all lawyers in the firm are bound by Rule 1.6 not to disclose or use the would-be client's information. The opinion worked through Rule 1.7(b) (a current representation materially limited by duties to the would-be client), Rule 1.9 (duties to former clients, including the 1.9(c) bar on using or revealing their information), and Rule 1.10 (imputation within the firm), treating the would-be client's protection as analogous to that owed a former client even though no representation occurred.
The committee's practical guidance turned on how much the lawyer learned. If the lawyer "takes adequate measures to limit the information initially imparted by the would-be client," for example by gathering only what is needed to run a conflicts check before hearing the details, then in most situations the firm may continue or undertake the adverse representation. But "when the information imparted by the would-be client is critical to the representation of an existing or new client in the same or related matter," the lawyer "must withdraw or decline the representation unless a waiver of confidentiality has been obtained from the would-be client." The opinion applied these principles to three hypotheticals to show how the measures a lawyer takes at intake control the disqualification outcome.
Currency note
This opinion was issued in 1990, before the American Bar Association's adoption of the 2002 (Ethics 2000) revisions to the Model Rules of Professional Conduct, which added Rule 1.18 to address duties to prospective clients directly, including the disqualification standard and screening. The 2002 rule, not this opinion, now governs the question. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.
Common questions
Q: Was what a would-be client told the lawyer protected even though the lawyer never took the case?
A: Yes. The committee held the information was protected from revelation or use under Rule 1.6 even though the lawyer performed no legal services for the would-be client.
Q: Did the consultation disqualify the whole firm from the other side of the matter?
A: Not necessarily. Because the information is imputed firm-wide, it could, but the committee said a firm that limited the information taken in at intake may usually still handle the adverse representation.
Q: When did the firm have to decline or withdraw?
A: When the would-be client's information was critical to the representation of the existing or new client in the same or a related matter, unless the would-be client waived confidentiality.
Q: How could a lawyer avoid the conflict?
A: By taking adequate measures to limit the information initially imparted, gathering only enough to check for conflicts before learning details that could later require disqualification.
Background and rules framework
The opinion interpreted Rule 1.6 (confidentiality of information) as protecting a good-faith would-be client's disclosures, and applied Rule 1.7(b) (a current representation limited by responsibilities to a third person), Rule 1.9 (duties to former clients, including 1.9(c)'s bar on using their information), and Rule 1.10 (imputation of conflicts within a firm). It treated these together to derive the disqualification standard. Because the ABA interprets the Model Rules directly, there is no state-rule analogue; the predecessor Model Code was also referenced.
Citations and references
Rules of Professional Conduct:
- MR 1.6 (confidentiality of information)
- MR 1.7(b) (representation materially limited by responsibilities to others)
- MR 1.9 (duties to former clients; 1.9(c) use or revelation of their information)
- MR 1.10 (imputation of conflicts within a firm)
See also
- ABA Formal Op. 492: Obligations to prospective clients and "significantly harmful" information
- ABA Formal Op. 510: Avoiding imputation of a prospective-client conflict
Source
- Landing page: ABA Formal Ethics Opinions index
- Original PDF: 90-358.pdf
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