Saturday, March 8, 2008

Disqualifying Fannick: Comment


a. Scope and cross-references. This Section summarizes the duties of a lawyer to a person seeking legal services. Duties attach even when no client-lawyer relationship ensures. On application of the attorney-client privilege to communications with a prospective client, see §72. Application of rules parallel to those of § 132(2) on former-client conflicts of interest and those of § § 123-124 on imputation of conflicts is considered in Comment c hereto. Whether a person who consults a lawyer forms a client-lawyer relationship is determined under § 14. On duties owed by a lawyer to non-clients, see §and 56.

b. Rationale. Prospective clients are like clients in that they often disclose confidential information to a lawyer, place documents or other property in the lawyer’s custody, and rely on the lawyer’s advice. But a lawyer’s discussions with a prospective client often are limited in time and depth of exploration, do not reflect full consideration of the prospective client’s problems, and leave both prospective client and lawyer free (and sometimes required) to proceed no further. Hence, prospective clients should receive some but not all of the protection afforded clients, as indicated in the Section and following Comments.

c. Confidential information of a prospective client It is often necessary for a prospective client to reveal and for the lawyer to learn confidential information (see § 59) during an initial consultation prior to their decision about formation of a client-lawyer relationship. For that reason, the attorney-client privilege attaches to communications of a prospective client (see § 70, Comment c). The lawyer must often learn such information to determine whether a conflict of interest exists with an existing client of the lawyer or the lawyer’s firm and whether the matter is one that the lawyer is willing to undertake. In all instances, the lawyer must treat that information as confidential in the interest of the prospective client, even if the client or lawyer decides not to proceed with the representation (see Subsection (1)(a); see also §60(2). The duty exists regardless of how brief the initial conference may be and regardless of whether screening is instituted under Subsection 2(a)(ii). The exceptions to the principles of confidentiality and privilege apply to such communications (see § 61-67).

“Subsection (2) states rules parallel to those governing former client conflicts under § 132, but it relaxes two analogous former-client rules. First, personal disqualification of a lawyer who deals with a prospective client occurs only when the subsequent matter presents the opportunity to use information obtained from the former prospective client that would be“significantly harmful.” In contrast, § 132 applied whenever there is a“substantial risk” of adverse use of the former client’s confidential information, regardless of the degree of threatened harm. Second,screening is permitted under Subsection (2)(a) so long as the lawyer takes reasonable steps to limit his or her exposure to confidential information during the initial consultation. In contrast, screening under § 1 24(2)(a) is permissible only when information obtained in the earlier representation would not likely be of significance in the subsequent representation.”

In order to avoid acquiring disqualifying information, a lawyer considering whether or not to undertake a new matter may limit the initial interview to such confidential information as reasonably appears necessary for that purpose. Where that information indicates that a conflict of interest or other reasons for non representation exists, the lawyer should so in form the prospective client or simply decline the representation. If the prospective client still wishes to retain the lawyer, and if consent is possible under § 1220), consent from any other affected present or former client should be obtained before confidential information is elicited. The lawyer may also condition conversations with the prospective client on the person’s consent to the lawyer’s representation of other clients (see § 122, Comment d) or on the prospective client’s agreement that any information disclosed during the consultation is not to be treated as confidential (see § 62). The prospective client’s informed consent to such an agreement frees the lawyer to represent a client in a matter and to use in that matter, but only if the agreement so provides, confidential information received from the prospective client. A prospective client may also consent to a representation in other ways applicable to a client under § 122.”

“Even in the absence of such an agreement, when a consultation with a prospective client does not lead to a lawyer’s retention the lawyer is not always prohibited from representing a client with interests adverse to those of the prospective client in the same or a substantially related matter. A prospective client’s assurances of confidentiality through prophylactic prohibition as broad as that required in the case of a former client under § 132 must yield to a reasonable degree to the need of the legal system and to the interests of the lawyer and of other clients, including the need of a lawyer to obtain information needed to determine whether the lawyer may properly accept the representation without undue risk of prohibitions if no representation ensues. Thus, under Subsection (2), prohibition exists only when the lawyer has received from the prospective client information that could be significantly harmful to the prospective client in the matter. In such an instance and absent the prospective client’s consent, the lawyer must withdraw from a substantially related representation commenced before the prospective client communicated with the lawyer and must not represent a client in such a matter in the future, including a client the lawyer ordinarily represents on a continuing basis.”

“When a tribunal is asked to disqualify a lawyer based on prior dealings with a former prospective client, that person bears the burden of persuading the tribunal that the lawyer received such information. The prohibition is imputed to other lawyers as provided in § 123, but may be avoided if all personally prohibited lawyers are screened as stated in § t24(2)(b) and (2)(c) (see Subsection (2)(a)). In that situation, screening avoids imputation even when the requirements of § 1 24(2)(a) have not been met. In deciding whether to exercise discretion to require disqualification, a tribunal may consider whether the prospective client disclosed confidential information to the lawyer for the purpose of preventing the lawyer or the lawyer’s firm from representing an adverse party rather than in a good-faith endeavor to determine whether to retain the lawyer. The tribunal may also consider whether the disclosure of significantly harmful confidential information resulted from the failure of the lawyer or the prospective client to take precautions reasonable in the circumstances. In addition to screening, Subsection (2)(b) permits representation if both the former prospective client and any affected present client consent.”