May a Missouri lawyer disclose limited client information to check conflicts during employment negotiations?

Plain-English summary

Rule 4-1.6(b)(5) permits disclosure for conflicts arising from a lawyer's employment change, but not when privilege would be compromised or the client otherwise prejudiced. Whether privilege is compromised is a legal question outside the opinion.

Disclosure waits until substantive discussions about the new relationship. Ordinarily it is limited to involved identities, a brief general-issue summary, and whether the matter ended. Recipients may use or further disclose it only as necessary to detect and resolve conflicts.

In practice

Under this opinion, the employment-conflict exception is narrow in timing, content, effect on the client, and later use.

Common questions

Q: When may disclosure begin?

A: After substantive discussions about the new relationship.

Q: What is ordinarily disclosed?

A: Identities, general issues, and whether the matter ended.

Q: May privileged or prejudicial information be disclosed?

A: No.

Background and rules framework

Rules 4-1.7 and 4-1.9 require conflict protection. Rule 4-1.6(b)(5) and Comments [18]-[19] define the limited employment-change disclosure.

Citations and references

Rules of Professional Conduct:

• Missouri Rules 4-1.6(b)(5), 4-1.7, and 4-1.9
• Missouri Rule 4-1.6 Comments [3], [18], and [19]

See also

• ABA Formal Op. 510: Prospective-Client Conflict Screening
• Texas Ethics Op. 598: Lateral-Hire Conflict Screening

Source

• Landing page: Missouri Informal Opinion 2020-05

Original opinion text

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

QUESTION: Attorney is negotiating with a law firm for future employment. May Attorney make limited disclosure of a client’s confidential information in order to check for conflicts of interest?

ANSWER: Lawyers have an ethical obligation to protect against conflicts of interest. See Rules 4–1.7 and 4–1.9. Rule 4–1.6(b)(5) permits Attorney to reveal information relating to the representation of a client for the limited purpose of detecting and resolving conflicts of interest arising from Attorney’s change of employment, but only if doing so would not compromise the attorney-client privilege or otherwise prejudice the client. Whether the attorney-client privilege would be compromised is a question of law outside the scope of the Rules of Professional Conduct. See Rule 4–1.6, Comment [3]. A disclosure pursuant to Rule 4–1.6(b)(5) should not be made until substantive discussions about the new relationship have occurred. Rule 4–1.6, Comment [18]. Ordinarily, any such disclosure should be limited to “the identity of the persons and entities involved in a matter, a brief summary of the general issues involved, and information about whether the matter has terminated.” Rule 4–1.6, Comment [18]. Information disclosed may be used or further disclosed only to the extent necessary to detect and resolve conflicts of interest. Rule 4–1.6, Comment [19].