If an Oregon lawyer gets an advance conflict waiver from a prospective client, can the lawyer or firm later represent the opposing party?

Plain-English summary

The fact pattern: a prospective client (Party X) consults Attorney A and signs an advance waiver agreeing that nothing disclosed in the consultation will bar Attorney A or the firm from later representing a different client in the matter if Party X does not hire them. Party X then retains other counsel, and the opposing party (Client Y) asks Attorney A's firm to represent it. The opinion answers both questions ("May Attorney A represent Client Y?" and "May another attorney at the firm?") "Yes, qualified."

The opinion applies Oregon RPC 1.18, which governs duties to a prospective client who does not ultimately hire the lawyer. It walks through a two-step analysis. First, the representation of Client Y is materially adverse to Party X in the same matter, so the first step is satisfied. Second, the lawyer must determine whether he received "disqualifying information," meaning information that could be significantly harmful to Party X; the opinion notes "significantly harmful" is undefined in Oregon and lists fact-specific factors (whether the information is public, would surface in discovery, relates to motives, strategies or weaknesses, or could affect settlement).

If Attorney A received no disqualifying information, the opinion concludes he and the firm may represent Client Y; it suggests limiting an initial consultation to the information needed to run a conflicts check and assess the matter reduces this risk. If Attorney A did receive disqualifying information, the opinion concludes representation is permissible only under RPC 1.18(d): either both the affected client (Client Y) and the prospective client (Party X) give informed consent confirmed in writing, or the lawyer took reasonable measures to limit exposure, is timely screened, and written notice is given to Party X. The opinion concludes the signed advance waiver supplies Party X's consent (assuming it is enforceable, cross-referencing OSB Op. 2025-206), so Attorney A and the firm may proceed if Client Y also gives written informed consent, or alternatively the firm may proceed under the screening-plus-notice route if Attorney A avoided sharing the information within the firm.

In practice

Under this opinion, an Oregon lawyer who obtained an enforceable advance waiver from a prospective client during a consultation may take on the opposing party, but the path depends on the facts. If no significantly-harmful information was disclosed, the firm may proceed. If it was, the firm proceeds only by getting the new client's written informed consent in addition to the waiver, or by timely screening the consulting lawyer and giving written notice to the former prospective client. The opinion identifies limiting the initial consultation to conflicts-check information as a way to avoid receiving disqualifying information in the first place.

Common questions

Q: Does an advance conflict waiver from a prospective client let an Oregon lawyer take the other side?

A: Yes, qualified. The opinion concludes the waiver supplies the prospective client's consent under RPC 1.18(d), but the firm still needs either the new client's written informed consent, or timely screening of the consulting lawyer plus written notice, if disqualifying information was received.

Q: What counts as "disqualifying information" under Oregon RPC 1.18?

A: Information that could be significantly harmful to the prospective client. The opinion notes the term is undefined in Oregon and lists fact-specific factors: whether the information is public, would be disclosed in discovery, relates to motives, strategies, or weaknesses, or could affect settlement.

Q: Can other lawyers in the firm represent the opposing party if the consulting lawyer is conflicted?

A: Yes, qualified. The opinion concludes the firm may proceed if the consulting lawyer took reasonable measures to limit exposure to disqualifying information, is timely screened from the matter, and written notice is promptly given to the prospective client.

Q: How can a lawyer avoid being disqualified by a prospective-client consultation?

A: The opinion concludes limiting the initial consultation to the information necessary to identify conflicts and assess whether to take the matter (such as the parties and the general subject) helps avoid receiving disqualifying information.

Background and rules framework

The opinion interprets Oregon RPC 1.18 (duties to prospective clients), including its definition of "disqualifying information" in RPC 1.18(c) and the cure provisions in RPC 1.18(d). It uses Oregon RPC 1.9(d)'s definition of "substantially related" matters and RPC 1.0(n)'s definition of screening. These track Model Rules 1.18 and 1.9.

Citations and references

Rules of Professional Conduct:

• Oregon RPC 1.18 / Model Rule 1.18 (prospective clients)
• Oregon RPC 1.9(d) / Model Rule 1.9 (substantially related matters)
• Oregon RPC 1.0(n) (definition of screening)

Cases:

• Besang, Inc. v. Intel Corp., No. 3:23-cv-00113-HZ, 2023 WL 5499982 (D. Or. Aug. 25, 2023), denying disqualification of opposing counsel

Other opinions cited:

• OSB Formal Op. 2025-206: enforceability of advance waivers of conflicts
• Virginia Legal Ethics Op. 1794 (2004): consulting opposing counsel without intent to hire (taint-shopping)

See also

• ABA Formal Op. 492: Obligations to Prospective Clients
• ABA Formal Op. 510: Avoiding Imputation of Prospective-Client Conflict
• ABA Formal Op. 90-358: Protection of Information From a Prospective Client

Source

• Landing page: https://www.osbar.org/ethics/toc.html
• Original PDF: https://www.osbar.org/_docs/ethics/2026-207.pdf