May a Missouri firm represent a husband against a wife who previously consulted one of its lawyers about the related dissolution?

Plain-English summary

The wife became a prospective client when she consulted a firm lawyer about the dissolution, even though no representation followed. The husband's later modification proceeding is substantially related.

Rule 4-1.18(c) disqualifies the consulted lawyer if the lawyer received information that could significantly harm the wife in the modification, and imputes that bar to the firm. Rule 4-1.18(d) permits representation only with both parties' informed consent confirmed in writing, or when the consulted lawyer reasonably limited intake of disqualifying information and is timely screened.

In practice

Under this opinion, a consultation can create a firmwide conflict without forming a lawyer-client relationship. The available screen depends on reasonable intake limits before the information was received.

Common questions

Q: Is the wife a prospective client?

A: Yes, despite not hiring the lawyer.

Q: When is the firm disqualified?

A: When the consulted lawyer received information that could significantly harm the wife in the substantially related modification.

Q: What exceptions does Rule 4-1.18(d) provide?

A: Written informed consent from both parties, or reasonable intake limits plus a timely screen.

Background and rules framework

Rules 4-1.18(c) and (d) govern significantly harmful information, imputation, consent, limited intake, and screening. Rules 4-1.0(b), (e), and (k) define the operative terms.

Citations and references

Rules of Professional Conduct:

• Missouri Rules 4-1.0(b), 4-1.0(e), 4-1.0(k), 4-1.18(c), and 4-1.18(d)

See also

• ABA Formal Op. 510: Avoiding Prospective-Client Conflict Imputation
• Colorado Ethics Op. 135: Joint Representation and Confidentiality

Source

• Landing page: Missouri Informal Opinion 2020-01

Original opinion text

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

QUESTION: Is Attorney permitted to represent Husband in filing a motion to modify a judgment of dissolution against Wife, where Wife consulted with Associate in Attorney’s firm about representation in the dissolution, but no client-lawyer relationship ensued?

ANSWER: Wife is a prospective client of Associate per Rule 4–1.18, Duties to Prospective Client. A motion to modify a judgment of dissolution is substantially related to the dissolution, so Rule 4–1.18(c) governs. Attorney would be prohibited from representing Husband in filing the motion to modify if Associate received information from Wife that could be significantly harmful to Wife in the motion to modify. Rule 4–1.18(c). If Associate would be disqualified from representing Husband, all lawyers with whom Associate is associated in a firm would be prohibited from representing Husband except as provided in Rule 4–1.18(d). If Associate would be disqualified under 4–1.18(c), Attorney may only represent Husband if both Wife and Husband grant informed consent, confirmed in writing, or if Associate took reasonable measures to avoid receiving more disqualifying information than was reasonably necessary to determine whether to represent Wife in the dissolution and Associate is timely screened from any participation in the matter. Rule 4–1.18(d). See Rules 4–1.0(e) (“informed consent), 4–1.0(b) (“confirmed in writing”), and 4–1.0(k) (“screened”).