Navigation ABA issues ethics guidance on avoiding conflicts with unretained prospective clients
The American Bar Association Standing Committee on Ethics and Professional Responsibility released a formal opinion recently that provides guidance on when a lawyer’s conflict is imputed to all others in the lawyer’s firm ─ specifically when a lawyer discusses a legal matter with a prospective client and the client does not retain the lawyer or the firm.
Formal Opinion 510 addresses the “reasonable measures” necessary to avoid imputing the lawyer’s conflict of interest to the firm under Rule 1.18 of the ABA Model Rules of Professional Conduct. Under the model rule, a lawyer who was consulted about a legal matter by a prospective client but not retained could be disqualified from representing another client who is adverse to the prospective client in the same or a substantially related matter. This could occur if the lawyer received from the prospective client “disqualifying information,” viewed as information that could be significantly harmful to the prospective client in the matter.
Jonathan Grabb, The Florida Bar’s ethics counsel, said Florida’s corollary to Model Rule 1.18, Rule 4-1.18 of Rules Regulating The Florida Bar, applies to any information “that could be used to the disadvantage” of a prospective client in the matter, rather than only information that is “significantly harmful” to the prospective client.
