Can a Kentucky lawyer who was approached by, but never retained by, a prospective plaintiff later represent the defendant in the same matter?

Plain-English summary

The Committee was asked whether a lawyer or firm, previously contacted but not retained by a prospective client about bringing suit, could represent the defendant in that litigation when no lawyer-client relationship was ever formed and the lawyer obtained no confidences or secrets usable to the defendant's advantage. It answered "Yes."

The opinion explained that an attorney-client relationship does not depend on payment of fees or execution of a formal contract; ordinarily, rules of agency and contract determine whether the relationship formed, expressly or impliedly, and it may also arise from the client's reasonable and detrimental reliance on the lawyer to provide legal services. Separately, the opinion noted, a lawyer may be precluded from accepting employment adverse to a prospective client who did not retain the lawyer if that prospective client revealed confidences and secrets about the matter in a good-faith effort to secure legal counsel.

The opinion concluded that if no attorney-client relationship was ever formed and the lawyer did not obtain confidences or secrets in that manner, the lawyer should not be precluded from the adverse representation. It reasoned that a contrary rule would sacrifice the legitimate interests of counsel and of persons seeking a lawyer's services for no apparent purpose, and could be abused by a prospective party tempted to "neutralize" available counsel in a given geographical area.

Currency note

This opinion was issued in 1987 under Kentucky's former Code of Professional Responsibility (in effect 1971 to 1990), before the Kentucky Bar Association's 1990 adoption of the Rules of Professional Conduct (SCR 3.130) and the substantial 2009 revisions to those rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Does a lawyer-client relationship require a signed agreement or a paid fee?

A: No. The opinion stated the relationship does not depend on payment of fees or a formal contract; agency and contract principles govern, and it can also arise from the prospective client's reasonable and detrimental reliance on the lawyer.

Q: When is a lawyer barred from representing the opponent of someone who only consulted the lawyer?

A: The opinion said a lawyer may be precluded from employment adverse to a prospective client who did not retain the lawyer if that person revealed confidences and secrets about the matter in a good-faith effort to secure counsel.

Q: Can a prospective client disqualify a lawyer just by making a preliminary contact?

A: No. The opinion concluded that where no relationship formed and no confidences or secrets were obtained, the lawyer is not precluded, and it warned that a contrary rule could be abused to "neutralize" available counsel.

Background and rules framework

The opinion interprets the former Code's confidentiality provisions, DR 4-101(A) and (B), together with DR 5-105 on declining or withdrawing from conflicting employment, and Ethical Consideration 4-1. It expressly anchors its reasoning to then-Proposed Kentucky Model Rule 1.9(a) and (b), the successor conflict-with-former-clients rule; the modern duties to prospective clients now appear at Model Rule 1.18.

Citations and references

Rules of Professional Conduct:

• DR 4-101(A) and (B); DR 5-105; EC 4-1 (former Code)
• MR 1.9 (duties to former clients; the proposed Kentucky analog cited)
• MR 1.18 (duties to prospective clients; modern analog)

Cases:

• Westinghouse Elec. Corp. v. Kerr-McGee Corp., 580 F.2d 1311 (7th Cir. 1978), disqualification from confidences shared by a would-be client

Other opinions cited:

• Ala. Op. 448 (1981); Vt. Op. 84-5; ABA/BNA Lawyers' Manual on Professional Conduct § 31:101; C. Wolfram, Modern Legal Ethics 251 (1986)

See also

• ABA Formal Op. 492: Prospective-Client Duties
• ABA Formal Op. 90-358: Prospective Client Information
• ABA Formal Op. 510: Prospective-Client Conflicts

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-316.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-316
Issued: January 1987

This opinion was decided under the Code of Professional Responsibility, which was
in effect from 1971 to 1990. Lawyers should consult the current version of the
Rules of Professional Conduct and Comments, SCR 3.130 (available at
http://www.kybar.org), before relying on this opinion.

Question:

May a lawyer or law firm, previously contacted but not retained by a prospective
client regarding the possibility of bringing suit against another, represent the
defendant in the litigation, provided a lawyer-client relationship with the client was
never formed and the lawyer did not obtain confidences or secrets from the plaintiff
that could be used to the advantage of the defendants?

Answer:

Yes

References:

ABA/BNA Lawyers' Manual on Professional Conduct § 31:101; DRs 4-101(A)
and (B) and 5-105; Proposed Kentucky Model Rule l.9(a) and (b); EC 4-1;
Westinghouse Elec. Corp. v. Kerr-McGee Corp., 580 F.2d 1311 (7th Cir. 1978);
Ala. Op. 448 (1981); Vt. Op. 84-5 (undated); C. Wolfram, Modern Legal Ethics
251 (1986).
OPINION

An attorney-client relationship is not dependent upon payment of fees, nor upon execution
of a formal contract. Ordinarily, rules of agency and contract determine whether such a
relationship has been formed, either expressly or impliedly. ABA/BNA Lawyers' Manual on
Professional Conduct § 31:101. In addition, the relationship may be established by the client's
reasonable and detrimental reliance on the lawyer to provide legal services. Id.
Furthermore, a lawyer may be precluded from accepting employment adverse to a
prospective client who did not retain the lawyer, if the prospective client revealed to the lawyer
confidences and secrets about a matter in a good faith effort to secure legal counsel. EC 4
Proposed Kentucky Model Rule 1.9; Westinghouse Elec. Corp. v. Kerr McGee Corp., 580 F.2d
1311 (7th Cir. 1978); Ala. Op. 448 (1981); Vt. Op. 84-5 (undated); C. Wolfram, Modern Legal
Ethics 251 (1986).
If an attorney-client relationship was never formed and the lawyer did not obtain
confidences or secrets in the manner so indicated, the lawyer should not be precluded from the
adverse representation. If the rule were otherwise, the legitimate interests of counsel and persons
seeking his services would be sacrificed for no apparent purpose. Such a rule could also be abused

by a prospective party, who might be tempted to "neutralize" available counsel in a given
geographical area.

Note to Reader
This ethics opinion has been formally adopted by the Board of Governors of the Kentucky
Bar Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor
rule). The Rule provides that formal opinions are advisory only.