When does talking to a prospective client who does not retain you disqualify you from representing the other side?

Plain-English summary

Opinion EF-10-03 (December 17, 2010) revisits conflicts arising from consultations with prospective clients in light of SCR 20:1.18, which took effect July 1, 2007, and withdraws the earlier Opinion E-89-5. Under SCR 20:1.18(a), a prospective client is a person who discusses with a lawyer the possibility of forming a relationship. The rule treats a prospective client like a former client for confidentiality (20:1.18(b)), but applies a more lenient conflicts standard (20:1.18(c)): where no representation ensues, the lawyer may represent an adverse party in the same or a substantially related matter unless the lawyer received information that could be "significantly harmful" to the prospective client.

The committee stresses the contrast with the former-client rule. Under SCR 20:1.9(a), receipt of confidential information is presumed once matters are substantially related, ending the inquiry and barring the adverse representation. Under SCR 20:1.18(c), by contrast, disqualification turns on whether the lawyer actually received "significantly harmful" information, reflecting the more attenuated prospective-client relationship. Because neither the rule nor the Restatement defines the term (it was drawn from ABA Formal Opinion 90-358), the committee surveys case law and opinions to illustrate it: sensitive personal information (Sturdivant), premature possession of financial information affecting settlement and strategy (Artificial Nail Technologies), settlement positions (ADP), and a prospective client's litigation strategies and impressions of the case (Chemcraft). The committee offers a working definition keyed to information that is sensitive or privileged and not obtainable through ordinary due diligence, or that has long-term significance (motives, strategies, weaknesses), or whose premature possession could substantially affect settlement and trial strategy, and notes that information being discoverable later does not by itself keep it from being significantly harmful.

The committee then describes how to avoid disqualification. A lawyer can limit the initial interview to only the information needed to check for conflicts and capability, cautioning the would-be client not to volunteer details until the lawyer decides whether to proceed. A lawyer can also obtain, at the outset, the prospective client's informed consent (confirmed in writing under 20:1.18(d)(1)) that the consultation will not bar the lawyer from representing a different client in the matter, though such advance waivers are effective only to the extent the person understands the material risks, and they do not authorize disclosing or using the prospective client's confidential information against them. For imputation, SCR 20:1.18(d) gives two exceptions: both clients' informed consent confirmed in writing, or screening, where the lawyer limited exposure to disqualifying information, is timely screened, takes no fee from the matter, and the prospective client receives prompt written notice.

In practice

Under this opinion, conduct matching its fact pattern is treated as follows. As the rules stood at the time of the opinion, a Wisconsin lawyer who consulted a prospective client and did not take the matter could represent an adverse party in the same or a substantially related matter unless the lawyer received "significantly harmful" information. The committee concludes a lawyer can reduce the risk of disqualification by limiting the initial interview or obtaining an advance informed-consent waiver confirmed in writing, and that a firm can avoid imputed disqualification through both clients' written consent or by timely screening the disqualified lawyer with prompt written notice to the prospective client.

Common questions

Q: Does meeting a prospective client always disqualify a lawyer from the other side?

A: No. The committee concludes that under SCR 20:1.18(c) the lawyer is disqualified only if the consultation produced information that could be "significantly harmful" to the prospective client in the matter.

Q: What counts as "significantly harmful" information?

A: Sensitive or strategic information. The committee describes it as sensitive or privileged information not obtainable through ordinary due diligence, or information with long-term significance such as motives, litigation strategies, settlement positions, or case weaknesses.

Q: How can a lawyer avoid being disqualified?

A: Limit intake or get consent. The committee concludes a lawyer can limit the initial interview to what is needed to check conflicts and capability, or obtain the prospective client's advance informed consent, confirmed in writing.

Q: Can the lawyer's firm avoid disqualification?

A: Yes, two ways. The committee concludes a firm can avoid imputation through both clients' written informed consent, or by timely screening the disqualified lawyer (who takes no fee) with prompt written notice to the prospective client.

Background and rules framework

The opinion interprets SCR 20:1.18 / Model Rule 1.18 (duties to prospective clients, including the significantly-harmful conflict test in 20:1.18(c) and the consent and screening exceptions in 20:1.18(d)), and contrasts it with SCR 20:1.9(a) / Model Rule 1.9 (former-client conflicts, with presumed receipt of information) and SCR 20:1.10 / Model Rule 1.10 (imputation). It applies the informed-consent definition in SCR 20:1.0(f) and draws on ABA Formal Opinion 90-358 and Restatement (Third) of the Law Governing Lawyers section 15.

Citations and references

Rules of Professional Conduct:

• Wis. SCR 20:1.18, 20:1.18(c), 20:1.18(d) / Model Rule 1.18 (prospective clients)
• Wis. SCR 20:1.9(a) / Model Rule 1.9 (former-client conflicts)
• Wis. SCR 20:1.10 / Model Rule 1.10 (imputation)
• Wis. SCR 20:1.0(f) (informed consent)

Cases:

• Sturdivant v. Sturdivant, 367 Ark. 514, 241 S.W.3d 740 (2006), sensitive consultation information was significantly harmful
• Poly Software Int'l v. Su, 880 F. Supp. 1487 (D. Utah 1995), no disqualification where only general details were shared

Other opinions cited:

• ABA Formal Op. 90-358: source of the "significantly harmful" standard and limiting the initial interview
• Wisconsin Ethics Op. E-89-5 (withdrawn by this opinion)

See also

• WI Ethics Op. EF-11-03: Prospective Clients, Websites, and Unsolicited Email
• ABA Formal Op. 90-358: Protection of Information Imparted by a Prospective Client
• ABA Formal Op. 510: Avoiding Imputation of a Prospective-Client Conflict

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/EF-10-03.pdf