|Oregon State Bar Bulletin — FEBRUARY/MARCH 2010
Paul comes to Helen’s law office to consult about a possible claim against Paul’s employer, Julie. Helen meets with Paul for about half an hour. Paul describes Julie’s conduct and Helen gives him a general explanation of the steps involved in an employment claim. Helen also offers Paul a preliminary assessment of the likelihood Paul can prevail on his claims. Helen hears nothing further from Paul. Three weeks later, Julie asks Helen’s firm to defend her against a claim that has been asserted by Paul. Can Helen or her firm represent Julie?
Prior to the adoption of RPC 1.18 in 2005, there was little clear guidance for Oregon lawyers in the foregoing situation. We knew that communications with a person who consults with a lawyer “with a view to obtaining professional legal services” were protected by the lawyer-client privilege.1 We also knew that the duty of competence applied any time we offered legal advice.
In 2002, the Oregon Supreme Court explained that lawyers were obligated to safeguard the property of a person who consults about possible legal services. In re Spencer, 335 Or 71 (2002). In that case, a woman seeking representation submitted a packet of documents to a lawyer for his review. The lawyer decided not to undertake the matter, but shredded several of the woman’s documents before returning the remainder to her. The bar argued that the lawyer violated former DR 9-104 by failing to return the property to which the woman was entitled. The trial panel found no violation, on the ground that the rule by its plain language applied only to clients and the woman never became a client. The state supreme court disagreed:
When a person delivers “funds, securities or other properties” to a lawyer who is considering whether to represent that person, the person has entrusted those materials to the lawyer as a lawyer and, as such, is as much entitled to be considered a “client” for that limited purpose as if the person had made a confidential, verbal communication to the lawyer. …Although the legislature’s definition of “client” in OEC 503 does not control our interpretation of that word as it is used in DR 9-101(C)(4), we agree with the bar that it is helpful in interpreting that disciplinary rule and that the proper application of DR 9-101(C)(4) requires that it apply to one who consults with a lawyer with a view to obtaining professional services from the lawyer, as (the woman) did here.
331 Or 71 at 84. The court cautioned that “this interpretation of the word ‘client’ applies only to DR 9-101(C)(4) and not necessarily to other disciplinary rules that use the word ‘client.’” 335 Or 71 at 85, fn 9.
While Spencer certainly indicated that lawyers have some obligations to persons who consult about possible legal representation, it offered no help on the difficult questions of the degree of loyalty, if any, a lawyer owes to the person with whom she consults. In other words, to what extent could a lawyer take on a representation adverse to a person with whom she had consulted? For the most part, courts dealt with the question by determining whether the circumstances of the consultation gave rise to a lawyer-client relationship and, if so, applying the former client conflict rule.
At about the time Spencer was decided, the ABA’s Ethics 2000 Commission promulgated Model Rule 1.18 (Duties to Prospective Client) in recognition that important events occur in the period during which a lawyer and prospective client are considering whether to form a client-lawyer relationship. For the most part, the Model Rules in place at the time did not address that pre-retention period. New Model Rule 1.18 clarified a lawyer’s duty of confidentiality and extended some of the protections of Rule 1.9 to the new category of “prospective clients.”2
The “new” Oregon Rules of Professional Conduct that became effective in January 2005 included Model Rule 1.18 and, based on anecdotal information, the rule appears to have done just what is was intended to do: clarify for lawyers the duties they have to prospective clients. It also has the ameliorative effect of eliminating the practice of “taint shopping,” by which a person consults a lawyer for the sole purpose of disqualifying the lawyer from representing an opposing party in a legal matter. In December 2009, the Oregon Supreme Court adopted amendments to RPC 1.18 approved by the OSB House of Delegates in November 2009 to conform the rule to its ABA Model Rule counterpart.3
RPC 1.18 has four distinct parts. Paragraph (a) defines a “prospective client” for purposes of the rule as a person “who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter.”
RPC 1.18(b) makes clear that “even when no client-lawyer relationship ensues,” the information learned by the lawyer in discussions with a prospective client cannot be revealed or used, “except as Rule 1.9 would otherwise permit with respect to information of a former client.” Not much is gained in that exception, as RPC 1.9(c) generally prohibits a lawyer from using or revealing information relating to the representation of a former client.4
A lawyer who is required by RPC 1.18(b) to protect the information of a prospective client is disqualified by RPC 1.18(c) from thereafter representing a person with “materially adverse interests” in the same or a substantially related matter if the information received from the prospective client “could be significantly harmful to (the prospective client) in the matter.” The consulting lawyer’s disqualification applies to the other members of the lawyer’s firm, except as discussed below.
Notwithstanding the disqualification of the consulting lawyer under RPC 1.18(c), representation of a person with interests adverse to the prospective client is permissible under RPC 1.18(d) if both the new client and the prospective client give their informed consent, confirmed in writing. Alternatively, another lawyer in the consulting lawyer’s firm can represent the adverse person if: 1) the consulting lawyer took reasonable measures to avoid exposure to more disqualifying information5 than was reasonably necessary to determine whether to represent the prospective client;62) the disqualified lawyer is timely screened7 from participation in the matter; and (3) written notice is given promptly to the prospective client.
A consulting lawyer can avoid acquiring any disqualifying information from a prospective client, and thereby being prohibited from representing a person with adverse interests, by limiting the initial interview to only the information that is necessary for the lawyer to determine whether he wishes to undertake the matter and that no disqualifying conflict of interest exists. In the scenario above, Helen can limit her initial interview with Paul to identifying the employer and getting a general description of the basis of Paul’s claim (i.e., wrongful termination, discrimination, harassment, wages, etc.). Helen is not likely to acquire any information that would be “significantly harmful” to Paul in the matter if she avoids discussing the specifics of the claim, particularly information that Paul has not already discussed with Julie. In that way, Helen could avoid personal disqualification.
Another way for Helen to avoid disqualification is by conditioning the consultation with Paul on his informed consent that no information disclosed in the consultation will prohibit Helen from representing a different client in the matter. This is, in effect, an advance waiver of a former client conflict. The agreement may also include Paul’s express consent to subsequent use of the information gained in the consultation. See ABA Model Rule 1.18, Comment (5).
Even if Helen acquires disqualifying information during the consultation, if she has taken reasonable measures to avoid exposure to more of such information than was reasonably necessary to decide whether to take the case, another member of Helen’s firm could represent Julie if Helen is properly screened from participation in the case and prompt notice is given to the prospective client.
The adoption of RPC 1.18 was a valuable addition to Oregon’s regulatory authority by recognizing the rights of persons who consult with a view toward hiring a lawyer. It also prevents “taint shopping” and limiting the representation available to an adversary. At the same time, the rule is clearly intended to apply only to preliminary discussions that enable both prospective client and lawyer to evaluate whether a lawyer-client relationship should ensue. It is not meant to be a way to avoid the application of the former client conflict rule (RPC 1.9) when the initial meeting is an exhaustive and detailed discussion of the client’s legal matter and the lawyer’s ideas for resolving it.
Effective use of RPC 1.18 requires lawyers to limit the scope of initial consultations to avoid acquiring disqualifying information, particularly if they are solo practitioners. Lawyers in firms have a bit more leeway, but the dual approach is consistent with RPC 1.10, which allows a firm to avoid imputation of a new hire’s disqualification by implementing proper screening.
1. ORS 40.225 (OEC 503) applies to “confidential communications,” those not intended to be disclosed to a third person except in furtherance of the rendition of legal services.
2. They would be more accurately described as “former prospective clients,” because the rule addresses duties that are owed only when the consultation never develops into a lawyer-client relationship.
3. As first adopted by the Supreme Court, Oregon RPC 1.18 omitted language in the ABA Model Rule. See fn. 6 below.
4. For an overview of the duty of confidentiality, see “The Secrets We Keep,” OSB Bulletin, Feb/Mar 2004; “Keeping Secrets,” OSB Bulletin, May 2005; and “Client Information Subpoenas,” OSB Bulletin, June 2008. See also, OSB Formal Ethics Opinion No. 2005-23.
5. As discussed above, disqualifying information is that which “could be significantly harmful” to the prospective client.
6. This is the language from Model Rule 1.18 that was inadvertently omitted from Oregon RPC 1.18 when it was initially adopted.
7. See the definition of “screened” in RPC 1.0(n).
ABOUT THE AUTHOR
Sylvia Stevens is general counsel for the Oregon State Bar. She can be reached at (503) 620-0222 or toll-free in Oregon at (800) 452-8260, ext. 359, or by e-mail at email@example.com.
© 2010 Sylvia Stevens