WSBA 1991

When does an initial consultation with a prospective client create confidences and a conflict that bars later adverse representation?

Short answer: The committee was of the opinion that the attorney-client relationship exists when a reasonable client believes it does, that information from an initial interview is protected by RPC 1.6, and that under RPC 1.9 it is a conflict to later represent a third party adverse to that prospective client in a related matter or one involving the prospect's confidences.

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This page answers the general question as of 1991. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.

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 Not binding precedent.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 on this page) is the authoritative source for any reliance.

Plain-English summary

The inquiry concerned conflict-of-interest avoidance systems. The committee was of the opinion that there is no short answer to when a conflict, or the appearance of one, arises, but that the attorney-client relationship exists when a reasonable client believes there is such a relationship. The committee had previously determined that information obtained during an initial interview with a prospective client rises to the level of secrets or confidences, which the lawyer could not disclose except in compliance with RPC 1.6.

The committee was further of the opinion that if an individual interviewed a firm for purposes of representation and the lawyer or firm was not retained, it would be a conflict of interest for the lawyer or a member of the firm to later represent a third party in a matter adverse to the original prospective client in a related matter, or in a matter involving the confidences or secrets of the prospective client. The committee was of the opinion that RPC 1.9 would apply in such a situation.

Currency note

This opinion was issued in 1991, before the Washington State Bar Association's adoption of the 2006 revisions to the Washington Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: When does an attorney-client relationship form for conflict purposes?

A: Under this 1991 opinion, when a reasonable client believes there is such a relationship; the committee declined to give a single bright-line answer.

Q: Are statements made in an initial consultation protected even if the lawyer isn't hired?

A: Yes. The committee had determined that information obtained during an initial interview rises to the level of confidences or secrets protected by RPC 1.6.

Q: Can the firm later oppose a prospective client it did not take on?

A: Not in a related matter or one involving the prospect's confidences; the committee was of the opinion that RPC 1.9 would make such adverse representation a conflict.

Background and rules framework

At the time of this opinion, Washington's RPC 1.6 governed confidentiality and RPC 1.9 governed duties to former clients, the subjects the Model Rules place in Rules 1.6 and 1.9. The committee extended confidentiality and former-client conflict analysis to information shared by a prospective client during an initial interview, even where no engagement followed.

Citations and references

Rules of Professional Conduct:

ABA Model Rule 1.6 (confidentiality)
ABA Model Rule 1.9 (duties to former clients)
Washington RPC 1.6, 1.9

Source

Landing page: https://ao.wsba.org/print.aspx?ID=491

Original opinion text

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

The Committee reviewed your inquiry regarding conflict of interest avoidance systems. The Committee is of the opinion that there is no short answer to the question of when does a conflict or the appearance of a conflict of interest arise. The Committee is of the opinion that the attorney-client relationship exists when a reasonable client believes that there is such a relationship. The Committee has previously determined that information obtained during an initial interview with a prospective client would rise to the level of secrets or confidences and that that information could not be disclosed by the lawyer except in compliance with RPC 1.6.

If an individual interviewed a firm for purposes of representation and the lawyer or law firm were not retained, it would be a conflict of interest for the lawyer or a member of the law firm to subsequently undertake to represent a third party in a matter adverse to the original prospective client in a related matter or in a matter involving confidences or secrets of the prospective client. The Committee is of the opinion that RPC 1.9 would apply in such a situation.

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