Focus on Ethics & Civility

• Publication year: 2024
• Citation: Vol. 37 No. 4 Pg. 54
• Pages: 54

Focus on Ethics & Civility Vol. 37 No. 4 Pg. 54 Utah Bar Journal July 2024

Avoiding Imputed Disqualification with Prospective Clients

by Keith A. Call and Hailey Winn-Cotton

You're sitting in your office when you get a call from a prospective client, who was referred by a trusted friend. The prospective client gives you details about quitting their job and taking a new job with a competitor. After a lengthy conversation, you decline the representation. Two days later, your partner gets a call from the former employer who wants to sue your former prospective client for stealing trade secrets and violating a non-compete agreement. Is your partner disqualified from representing the employer because of your conversation with the former employee, even though you did not form an attorney-client relationship?

The answer is "maybe." This article discusses the applicable rules and a recent ABA ethics opinion that will help you avoid imputing conflicts to other members of your firm when you discuss a matter with a prospective client.

Applicable Rules and an ABA Opinion

Under Utah Rule of Professional Conduct 1.18(b), a lawyer may generally not reveal or use information learned from a prospective client, even if no attorney-client relationship is formed. Under Rule 1.18(c), the information you learn from a prospective client may disqualify you from representing another client in a related matter. And this disqualification is imputed to other members of your firm unless you comply with Rule 1.18(d).

Rule 1.18(d) provides that other members of your firm may represent an adverse party even if...