American Bar Association releases guidance to prevent conflict with unretained clients

The guide helps lawyers deal with prospective clients who ultimately do not engage the lawyer

American Bar Association releases guidance to prevent conflict with unretained clients

The American Bar Association's (ABA) Standing Committee on Ethics and Professional Responsibility has issued new ethics guidance to help lawyers avoid conflicts of interest when dealing with unretained prospective clients.

This guidance is outlined in Formal Opinion 510 and focused on when and how a lawyer's conflict of interest could extend to their entire firm after consultations with prospective clients who ultimately do not engage the lawyer or the firm for their services.

Under Rule 1.18 of the ABA Model Rules of Professional Conduct, a lawyer who discusses a legal matter with a prospective client but is not retained is at risk of being disqualified from representing another client in the same or substantially related matter. This risk arises if the lawyer receives "disqualifying information" during the consultation, which is defined as information potentially harmful to the prospective client if used.

The ABA reported that Formal Opinion 510 addresses for the first time the "reasonable measures" lawyers can take to prevent such conflicts from affecting their entire firms. These measures include limiting the amount of disqualifying information received to what is necessary to decide whether to take on the prospective client’s case. Furthermore, the ABA committee suggested procedural precautions within the firm to ensure that a lawyer’s conflict does not automatically disqualify other lawyers from representing other clients in related matters.

The committee’s opinion recommended that lawyers should only obtain information from prospective clients that is reasonably necessary to determine whether the engagement is within the lawyer’s capabilities and whether it is an engagement the lawyer is willing to accept.

Furthermore, lawyers were advised to inform prospective clients to only share information requested by the lawyer, potentially conditioning consultations on the client's informed consent that the disclosed information will not prevent the lawyer from representing other clients in the matter.

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