NYSBA 2015-07-27

What does a firm owe a prospective client who turns out to be the adversary of an existing client, and must it tell the existing client about the consultation?

Short answer: The firm owes the prospective client confidentiality under Rule 1.18(b) for information learned in the consultation. Whether the consultation must be disclosed to the existing client, or bars continued representation, depends on whether the information is confidential and material, whether the matters are substantially related, and whether the information could be significantly harmful to the prospective client. Those are fact questions for the lawyer.

Disclaimer: Advisory only. Not binding precedent.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked at the bottom of this page) is the authoritative source for any reliance.

NY State Bar Ethics Opinion 1067: Duties to a prospective client who is adverse to an existing client

Short answer: When someone consults a lawyer in good faith about possible representation, the lawyer owes that prospective client confidentiality under Rule 1.18(b) for information learned in the consultation; whether the firm must tell its existing client about the consultation, and whether the consultation bars continued representation, depends on fact-specific questions the lawyer must resolve.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association's 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.

View original opinion

Plain-English summary

A three-partner firm practicing estate planning and elder law had long represented a Father, including in a contested Article 81 guardianship proceeding brought by his adult Child over the Father's wife, which ended in the Father's favor. The third partner, Z, who had no role in and no knowledge of that matter, met with the Child for a post-seminar consultation about the Child's own estate planning. Z did not run a conflict check first, and the Child only mentioned the prior guardianship adversity at the end. Z then confirmed with his partners that the matter existed, and the firm declined the Child's representation (¶¶ 1-4). The firm asked whether the Rules required or permitted it to tell the Father about the consultation, whether the consultation barred continued representation of the Father, and whether it had to tell the Child's guardianship lawyer (¶¶ 5-7).

The committee began with the firm's duties to the Child as a prospective client. Assuming the Child consulted in good faith (not unilaterally or to disqualify the firm under Rule 1.18(e)), the Child was a prospective client under Rule 1.18(a) and entitled to confidentiality under Rule 1.18(b) and to conflict protection under Rule 1.18(c) (¶¶ 8-12). The committee explained that Rule 1.18(b) protects only "confidential information" as defined in Rule 1.6, and that whether the Child's identity, the fact of the consultation, and its subject matter are confidential turns on whether they are privileged, embarrassing or detrimental if disclosed, or designated confidential, all fact questions the lawyer must judge; the committee could not resolve them (¶¶ 14-17).

On disclosure to the Father, the committee said that if the consultation information is not confidential, the firm may share it; if it is confidential, the firm must ask whether it is material to the Father's matter under Rule 1.4(a)(1)(iii), creating a potential dilemma between the Rule 1.18 duty to the Child and the Rule 1.4 duty to the Father, but that if the Child's matter is genuinely unrelated, the information is unlikely to be material and no disclosure obligation arises (¶¶ 18-20). The firm owes no duty to disclose to the Child's lawyer, and if the information is confidential, Rule 1.18(b) bars disclosing it to that lawyer without the Child's consent (¶ 21). On conflicts, the committee applied Rule 1.18(c)'s three-part test (same or substantially related matter, materially adverse interests, and information that "could be significantly harmful"), noting that, unlike the near-irrebuttable presumption for former clients under Rule 1.9, Rule 1.18(c) makes significant harm an open question; here, because the Child consulted about unrelated estate planning, harmful confidences seemed less likely, but that is a fact question for Z (¶¶ 22-25).

In practice

Under the New York rules as they stood at the time of the opinion, the committee mapped the framework rather than resolving the facts: a good-faith consultation creates a prospective-client confidentiality duty, but the operative questions (is the identity/consultation confidential, is it material to the existing client, are the matters substantially related, could the information be significantly harmful) are left to the lawyer. The opinion highlights the Rule 1.18(c) "significantly harmful" standard as a deliberate softening of the former-client conflict presumption, and notes the dilemma that can arise when a duty to disclose to one client collides with a duty of confidentiality to another. It also observes that a conflict check before substantive discussion, and advance-consent practices under Rule 1.18 Comment [5], can avoid the bind.

Common questions

Q: Is someone who consults a lawyer but does not retain them owed any duty?

A: Yes. The committee concluded a good-faith consulter is a "prospective client" under Rule 1.18(a) and is owed confidentiality under Rule 1.18(b) for information learned in the consultation (¶¶ 8, 11).

Q: Must the firm tell its existing client about the adversary's consultation?

A: Only if the information is confidential and material to the existing client's matter; the committee concluded that if the consultation was genuinely unrelated, the information is unlikely to be material and no disclosure duty arises (¶¶ 19-20).

Q: Does the consultation disqualify the firm from continuing to represent the existing client?

A: Not automatically. Under Rule 1.18(c) it depends on whether the matters are the same or substantially related, the interests are materially adverse, and the information "could be significantly harmful" to the prospective client, all fact questions for the lawyer (¶¶ 22-25).

Background and rules framework

The opinion interprets New York Rules 1.18 (duties to prospective clients), 1.6(a) (confidential information), 1.9(c) (former-client confidentiality), and 1.4(a) (informing clients of material developments), corresponding to ABA Model Rules 1.18, 1.6, 1.9, and 1.4. The analysis layers Rule 1.18(b)'s confidentiality duty and Rule 1.18(c)'s "significantly harmful" conflict test against the Rule 1.4 duty to keep the existing client informed.

Citations and references

Rules of Professional Conduct:

MR 1.18 / NY RPC 1.18 (duties to prospective clients; confidentiality and conflicts)
MR 1.6 / NY RPC 1.6(a) (definition of confidential information)
MR 1.9 / NY RPC 1.9(c) (former-client confidentiality)
MR 1.4 / NY RPC 1.4(a) (material developments)

Other opinions cited:

N.Y. State 960 (2013): meaning of "materially adverse," "substantially related," and "significantly harmful"
N.Y. City 2005-2 (2005): a client's expectations about a lawyer's use of another client's confidences

Source

Landing page: https://nysba.org/ethics-opinion-1067/