The California State Bar has solicited comment on its proposed Formal Opinion No. 17-0003 regarding duties of confidentiality to and avoidance of conflicts of interest to prospective clients. The deadline for comment is March 22, 2021. - gwc
Proposed Formal Opinion Interim No. 17-0003 [Duty to Prospective Client]ISSUES:
1. When a prospective client has provided confidential information to an
interviewing lawyer, may the interviewing lawyer disclose that
information or use it to the prospective client’s disadvantage?
2. When the interviewing lawyer has received material confidential
information from a prospective client, under what conditions is ethical
screening available so that other lawyers in the lawyer’s law firm may
represent other clients who are adverse to the prospective client in the
same or substantially related matters?
3. To what extent can a prospective client give advanced informed written
consent to permit other lawyers in an interviewing lawyer’s law firm to
be adverse to a former prospective client in the same or substantially
related matter in circumstances where the interviewing lawyer is
screened from the representation but the precondition for screening in
rule 1.18(d) has not been met because the interviewing lawyer did not
take the “reasonable measures” required by that rule?
DIGEST
When a person is a prospective client within the meaning of rule 1.18(a), the
interviewing lawyer owes the prospective client the same duty of confidentiality
owed to an existing or former client pursuant to rules 1.6 and 1.9 even though
no lawyer-client relationship thereafter ensues. The lawyer may not use or
disclose such information without the prospective client’s informed written
consent. This is true even if the information would be material to the
representation of an existing client of the lawyer or the lawyer’s law firm. The
duty of confidentiality to the prospective client outweighs the duty to inform the
current client.
An interviewing lawyer who receives material confidential information from a
prospective client is prohibited from accepting representation materially adverse
to the prospective client in the same or a substantially related matter absent
informed written consent. That prohibition is imputed to other members of the
law firm unless the interviewing lawyer took reasonable measures to obtain only
information that is reasonably necessary to determine whether to represent the
existing client and the law firm promptly undertook the screening and other
measures specified in rule 1.18(d)(2). Reasonable measures include advising the
client to provide only identified information that the lawyer reasonably needs to decide whether to undertake the representation and limiting questioning of the
client so as to elicit only such information. The information reasonably necessary
to determine whether to represent a prospective client is that which a
reasonable lawyer in the situation of the interviewing attorney would require to
determine whether the proposed representation was both ethically proper and
economically acceptable. It includes information beyond what is required to
determine whether the representation is ethically permissible to determine a
conflict of interest, may include information as to whether the client’s position is
tenable, and, in appropriate circumstances, may include information relating to
the client’s reputation or financial condition, the merits of the claim, and the
likely range of recoveries.
The prohibition against accepting a representation that is materially adverse to a
prospective client resulting from the receipt of that prospective client’s material
confidential information can be waived with the informed written consent of
both the prospective client and any affected client of the law firm. A prospective
client may give advance informed written consent to the law firm acting
adversely to the prospective client in the same matter or substantially related
matters.
AUTHORITIES
INTERPRETED: Rules 1.01(e), 1.4, 1.6, 1.7, 1.8.2, 1.9, 1.10, 1.16 and 1.18 of the Rules of
Professional Conduct of the State Bar of California.1
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