Saturday, March 8, 2008

Disqualifying Fannick: Reporter's Note


Comment c. Confidential information of a prospective client. See § 72,Comment d, and Reporter’s Note thereto. The position in the Comment is in most respects consistent with the position in ABA Formal Opin. 90-358(1990). Few cases address explicitly the question of the later disqualifying effect of having learned the minimum information necessary to decide whether or not the lawyer would have a conflict of interest taking a case. The position taken in the Comment follows from the principles of this Section and § 132 on former-client conflicts of interest. See also, e.g., Poly Software Int’l, Inc. v. Su. 880 F.Supp. 1487 (D.Utah. 1995) (no disqualification when lawyer avoided learning details of case in half-hour consultation with opposing party); Bennett Silvershein Assoc. v. Furman 776 F.Supp. 800 (S.D.N.Y.1991) (no disqualification warranted by brief consultation 10 years earlier about tenuously related matter); B.F. Goodrich Co. v. Formosa Plastics Corp. 638 F.Supp. 1050 (S.D.Tex.1986) (no disqualification where prospective client held on-day discussion of case with lawyer as part of “beauty contest” but client’s inside legal counsel regulated disclosures and there was no showing that confidential information disclosed could be detrimental to client); INAUnderwriters Insurance Co. v. Rubin, 635 F.Supp. 1 (E.D.Pa.1983) (no disqualification where lawyer held only preliminary arising out of same facts); Lovell v. Winchester, 941 S.W.2d 466 (Ky.1997) (consultation with parties who expected lawyer to represent them bars later representation of opposing party). On the relevance of a prospective client’s disclosures allegedly intended to produce disqualification, see In re American Airlines Inc. 972 F.2d 605, 613 (Cir. 1992).

Comment d. Protecting a prospective client’s property. See § 44, Comment b, and Reporter’s Note thereto; ABA Model Rules of Professional Conduct Rule 1.15 (1983 (referring to “property of clients or third persons”).

Comment e. A lawyer’s duty of reasonable care to a prospective client. Meighan v. Shore 40 Cal, Rptr.2d 744 (Cal.Ct.Ap.1995) (lawyer who speaks to wife and injured husband but represents only husband should advise wife of existence of loss-of consortium claim); Miller v. Metzinger 154Cal.Rptr.22 (Cal.Ct.App.1979) (Lawyer who advises potential client must mention statute-of-limitations expiration); Togstad v32Vesely. Otto. Miller & Keefe 291 N.W.2d 686 (Minn.1980) (lawyer who tells prospective client that client has no claim is liable for negligence in that opinion); Procanik v. Cillo 543 A.2d 985 (N.J.Super.Ct.App.Div.1988) (lawyer who states reasons for declining case must be professionally reasonable in those reasons, but need not disclose lawyer’s opinion on how likely it is that courts will over rule adverse precedent); compare Flatt v. Superior Court 885 P.2d 950 (Cal.1994) (after initially interviewing prospective client, lawyer determined from conflict check within firm that intended defendant in suit was present firm client; no duty to inform prospective client to file suit within limitation period).

... to be continued...