ABA publishes new Formal Ethics Opinion on conflicts of interest because of duties owed to prospective clients under Model Rule 1.18

 Today the ABA Standing Committee on Ethics and Professional Responsibility published Formal Opinion 510 on whether an attorney should be disqualified from representing a new client against a former prospective client.  Go here to access the full text of the opinion (you can download it too).  Here is the opinion's summary: 

Under Rule 1.18 of the Model Rules of Professional Conduct, a lawyer who was consulted about a matter by a prospective client, but not retained, is disqualified from representing another client who is adverse to the prospective client in the same or a substantially related matter if the lawyer received from the prospective client “disqualifying information”—i.e., information that could be significantly harmful to the prospective client in the matter. But, if the lawyer “took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client,” and the firm takes specified procedural precautions, then the lawyer’s conflict of interest is not imputed to others in the lawyer’s firm.

This opinion addresses the “reasonable measures” necessary to avoid the imputation of conflicts of interest under Rule 1.18.1 First, information that relates to “whether to represent the prospective client” includes information relating to (1) whether the lawyer may undertake or conduct the representation (e.g., whether a conflict of interest exists, whether the lawyer can conduct the work competently, whether the prospective client seeks assistance in a crime or fraud, and whether the client seeks to pursue a nonfrivolous goal), and (2) whether the engagement is one the lawyer is willing to accept. Second, to avoid imputation, even if information relates to “whether to represent the prospective client,” the information sought must be “reasonably necessary” to make this determination. Third, to avoid exposure to disqualifying information that is not reasonably necessary to determine whether to undertake the representation, the lawyer must limit the information requested from the prospective client and should caution the prospective client at the outset of the initial consultation not to volunteer information pertaining to the matter beyond what the lawyer specifically requests.

You can access all other ABA Ethics Opinions (dating back to 1984) here. The most recent ones are available to everyone, but the older ones are now available only to members.  So if you are not a member, download what you need now before it becomes unavailable.