Saturday, March 8, 2008

Disqualifying Fannick: Illustrations


1. “Person makes an appointment with Lawyer to discuss obtaining a divorce from Person’s Spouse. During the initial consultation, Lawyer makes no effort to limit the conversation or obtain any agreement on Person’s part to non-confidentiality. During the course of the one-hour discussion, Person discusses his reasons for seeking a divorce and the nature and extent of his and Spouse’s property interests. Because Person considers Lawyer’s suggested fee too high, Person retains other counsel.Thereafter, Spouse seeks Lawyer’s assistance in defending against Person’s divorce action. Lawyer may not accept the representation of Spouse. If Lawyer is screened as provided in § 124(2)(b) and (c), Lawyer’s disqualification is not imputed to other members of Lawyer’s firm (see Subsection (2)(a)).”

2. “The President of Company A makes an appointment with Lawyer, who had not formerly had dealings with Company A. At the outset of the meeting, Lawyer informs President that it will first be necessary to obtain information about Company A and its affiliates and about the general nature of the legal matter to perform a conflicts check pursuant to procedures followed in Lawyer’s firm. President supplies that information in a 15-minute meeting, including the information that the matter involves a contract dispute with Company B. The ensuing conflicts check reveals a conflict of interest with another Client of the firm(other than Company B), and Lawyer accordingly declines the representation. Lawyer and the other firm lawyers may continue representing Client (see Subsection (2)(a)).”

3. “Same facts as Illustration 2, except that Lawyer is later approached by Company B to represent it in its contract dispute with Company A. Both Lawyer and other firm lawyers may accept the representation unless Company A had disclosed to Lawyer confidential information that could be significantly harmful to Company A in the contract dispute. Even if such a disclosure had been made, if Lawyer is screened as provided in §124(2)(b) and (c), Lawyer’s disqualification is not imputed to other members of Lawyer’s firm (see Subsection (2)(a)).”

4. Same facts as Illustration 2, except that President wishes their first meeting both to discuss conflicts facts and to review Lawyer’s preliminary thoughts on the merits of the contract dispute. Lawyer states willingness to do so only if Company A agrees that Lawyer would not be required to keep confidential information revealed during the preliminary discussion. President agrees, and the preliminary discussion ranges over several aspects of the dispute. Lawyer later declines the representation because of a conflict involving another firm client.Thereafter, Lawyer is approached by Company B to represent it in its contract dispute with Company A. Lawyer may not accept there presentation. Because of President’s agreements, Lawyer is not required to keep confidential from Company B information learned during the initial consultation.

“Protecting a prospective client‘s property. When prospective clients confide valuables or papers to a lawyer’s care, the lawyer is under a duty to safeguard them in the same way as valuables or papers of any person that are in the lawyer’s possession as the result of a professional relationship (see § 44-46). Ordinarily, if no client-lawyer relationship ensures, the lawyer must promptly return all material received from the prospective client.”

“A lawyer’s duty of reasonable care to a prospective client. When a prospective client and a lawyer discuss the possibility of representation, the lawyer might comment on such matters as whether the person has a promising claim or defense, whether the lawyer is appropriate for the matter in question, whether conflicts of interest exist and if so how they might be dealt with, the time within which action must be taken and, if the representation does not proceed, what other lawyer might represent the prospective client. Prospective clients might rely on such advice, and lawyers therefore must use reasonable care in rendering it. The lawyer must also not harm a prospective client through unreasonable delay after indicating that the lawyer might undertake the representation. What care is reasonable depends on the circumstances, including the lawyer’s expertise and the time available for consideration (see § 52).”

“If a lawyer provides advice that is intended to be only tentative or preliminary, the lawyer should so inform the prospective client. Depending on the circumstance, the burden of removing ambiguities rests with the lawyer, particularly as to disclaiming conclusions that the client reasonably assumed from their discussion, for example whether the client has a good claim.”

“Other duties to a prospective client. In addition to duties of confidentiality and care, the lawyer is subject to general law in dealing with a prospective client. The lawyer, for example, may not give the prospective client harmful advice calculated to benefit another client. (see § 5 1(2) & 56).”

“Compensation of a lawyer for consultation with a prospective client. In the absence of circumstances indicating otherwise, prospective clients would ordinarily not expect to pay for preliminary discussions with a lawyer. When a client-lawyer relationship does not result, a lawyer is not entitled to be compensated unless that has been expressly agreed or it is otherwise clear from the circumstances that payment will be required.”