Can a phone call with someone who does not hire you create a conflict that blocks you from later representing the other side?

Plain-English summary

The inquiring lawyer had a telephone conversation with a prospective client about her case but was not hired, describing the conversation as "cursory, preliminary and involving non-confidential information." A month later the lawyer was hired by the adverse party in the same matter. The original prospective client then retained another lawyer, who moved to disqualify the inquiring lawyer on the ground that the initial phone call created a conflict; the court granted the motion. The lawyer asked for guidance on what questions or discussions in an initial contact are permissible and which go too far.

The committee said the relevant rule is RPC 1.9, but that it applies only if an attorney-client relationship exists. If one is established, RPC 1.9 bars the lawyer from representing another person in the same or a substantially related matter in which that person's interests are materially adverse to the former client, and that bar applies even where the former client never divulged any confidences but only consulted the attorney on the same or substantially related matter (citing Teja v. Saran). Whether an attorney-client relationship exists has both a subjective and an objective component: the prospective client must have subjectively believed the relationship existed, and that belief must have been objectively reasonable under the circumstances, including the lawyer's words or actions (citing Dietz v. Doe). Its existence is a question of fact (citing Bohn v. Cody).

The committee declined to opine on the lawyer's own past conduct, so it did not comment on the earlier consultation. It noted that, to avoid future disputes, the inquirer may consider stating clearly to a prospective client that an initial interview does not establish a confidential attorney-client relationship, explaining the office's procedures for entering into representation, and avoiding inquiry into confidential matters or giving legal advice during that initial communication, which courts have recognized as relevant to the reasonableness of a prospective client's belief. The committee added that compliance with RPC 1.9 does not limit a court's discretion to grant disqualification on other grounds, and that the committee does not opine about the conduct of the other lawyer.

Currency note

This opinion was issued in 2003, before the Washington State Bar Association's adoption of the 2006 revisions to the Rules of Professional Conduct, which added a distinct rule on duties to prospective clients (RPC 1.18) that the committee did not have available in 2003. RPC 1.9 kept its number in 2006. Subsequent rule amendments or later opinions may have changed the analysis; in particular, a present-day inquiry of this kind would also be analyzed under RPC 1.18. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

In practice

Under the Washington rule as it stood at the time of the opinion, the committee made the conflict question depend on a threshold fact: whether an attorney-client relationship formed during the initial call. It identified the test as both subjective (the prospective client's belief that the relationship existed) and objective (whether that belief was reasonable in the circumstances, including the lawyer's words or actions). If the relationship formed, the committee said RPC 1.9 bars later representing the adverse party in the same or a substantially related matter, even without any exchange of confidences. The committee declined to judge the lawyer's past conduct and offered, as its own suggestion, considerations a lawyer may use to reduce the risk that an initial contact is later treated as forming a relationship.

Common questions

Q: Does a brief call with someone who does not hire me create a conflict?

A: It can, but only if an attorney-client relationship formed. The committee said RPC 1.9 applies only if such a relationship existed, judged by whether the prospective client subjectively and reasonably believed it existed.

Q: Does it matter that no confidences were shared on the call?

A: The committee said RPC 1.9's bar applies even where the former client never divulged confidences but only consulted the lawyer on the same or a substantially related matter, citing Teja v. Saran.

Q: How is the existence of an attorney-client relationship decided?

A: The committee said it has a subjective and an objective component (the client's belief, and whether that belief was objectively reasonable, including the lawyer's words and actions) and that its existence is a question of fact, citing Dietz v. Doe and Bohn v. Cody.

Q: What did the committee suggest for initial client contacts?

A: As its own suggestion, the committee said a lawyer may consider clearly stating that an initial interview does not establish a confidential attorney-client relationship, explaining the office's intake procedures, and avoiding inquiry into confidential matters or giving legal advice during the initial communication.

Background and rules framework

The opinion interprets RPC 1.9 (Model Rule 1.9, duties to former clients), but conditions its application on the existence of an attorney-client relationship, an issue the committee treated as governed by Washington case law rather than by a numbered rule. In 2003 Washington had no separate prospective-client rule; the duties to prospective clients were later codified at RPC 1.18 in the 2006 revisions. The committee relied on Washington decisions defining when an attorney-client relationship exists and the reach of the former-client conflict bar.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.9 / Washington RPC 1.9 (duties to former clients; same or substantially related matter)

Cases:

• Teja v. Saran, 68 Wn. App. 793, 846 P.2d 1375 (Wash. Ct. App. 1993), the conflict bar applies even without disclosed confidences
• Dietz v. Doe, 131 Wn.2d 835, 935 P.2d 611 (Wash. 1997), subjective and objective test for an attorney-client relationship
• Bohn v. Cody, 119 Wn.2d 357, 832 P.2d 71 (Wash. 1992), existence of the relationship is a question of fact

See also

• WA Ethics Op. 1411: Prospective Client Conflicts
• WSBA Ethics Op. 928: No Client Relationship, No Authority
• WSBA Ethics Op. 2037: Suing a Former Client

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1288

Original opinion text

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

Advisory Opinion: 2045
Year Issued: 2003
RPC(s): RPC 1.9
Subject: Attorney/client relationship

The inquiring lawyer spoke with a prospective client via telephone regarding her case; however, he was not hired. He describes this conversation as “cursory, preliminary and involving non-confidential information.” One month later, the inquiring lawyer was hired by the adverse party regarding the same matter. The prospective client eventually hired another lawyer who moved for disqualification of the inquiring lawyer on the grounds that the initial phone conversation created a conflict of interest. The Court granted the motion. The inquiring lawyer seeks guidance “on what questions and/or discussions are permissible and which go too far.”

The committee opined that the relevant rule is RPC 1.9, but it only applies if an attorney/client relationship exits. If an attorney/client relationship is established, Rule 1.9 provides that the lawyer shall not “[r]epresent another person in the same or substantially related matter in which that person’s interests are materially adverse to the interests of the former client.” This prohibition is applicable even where the former client never divulged any confidences, but only consulted the attorney on the same or substantially related matter. Teja v. Saran, 68 Wn. App. 793, 800, 846 P.2d 1375 (1993).

The question of the existence of an attorney/client relationship has both a subjective and an objective component. First, the prospective client must have subjectively believed that an attorney/client relationship existed and second, the belief must have been objectively reasonable under the circumstances, including the lawyer’s words or actions. Dietz v. Doe, 131 Wn.2d 835, 843, 935 P.2d 611 (1997). The existence of such a relationship (and thus, the applicability of RPC 1.9) is a question of fact. Bohn v. Cody, 119 Wn.2d 357, 363, 832 P.2d 71 (1992).

The committee does not opine on past conduct and, therefore, will not comment on the previous experience with a prospective client who did not hire the inquirer.

In order to avoid future disputes with prospective clients the inquirer may consider making a clear statement to the prospective client about the fact that the initial interview does not establish a confidential, attorney/client relationship. The inquirer may explain procedures that have been established in the lawyer’s office for entering into an agreement for representation. Inquirer should avoid inquiring into confidential matters or giving legal advice during that initial communication. These factors have been recognized as relevant considerations in determining the reasonableness of any subjective belief of the prospective client. See Bohn, supra, 119 Wn.2d at 363-64.

The committee does not intend to indicate that compliance with RPC 1.9 and relevant case law limits the court’s discretion to grant motions to disqualify on other grounds.

The inquirer also asks about the conduct of another lawyer. The committee does not opine about such conduct.