Lawyers' duties to prospective clients: a cautionary tale.


Byline: Thomas E. Peisch and Erin K. Higgins

In the competitive world of modern-day lawyering, clients are increasingly requiring lawyers to make pitches as to how they would handle significant pieces of litigation. Commonly known as "beauty contests," these presentations usually are done without charge to the client and may be oral or written, and sometimes both.

At the same time, lawyers are increasingly mobile and move from firm to firm with a measure of impunity.

Against this backdrop, lawyers should be aware that they have duties to those who are pitched for business but never actually become clients, as set forth in Rule 1.18 of the Massachusetts Rules of Professional Conduct, which took effect on July 1, 2015.

Rule 1.18, titled "Duties to Prospective Clients," provides the following basics:

An exchange between a lawyer and a prospective client creates confidentiality obligations and conflict of interest issues even if no attorney-client relationship is ultimately formed, and the lawyer is barred from revealing any confidential information to the same extent as if the prospective client had actually been a client. The purpose of this portion of the rule is to give prospective clients some, but not necessarily all, of the protections given to actual clients. See comment 1.

A lawyer who obtains confidential information from a prospective client may not thereafter represent an adverse party if the information might be "significantly harmful" to the prospective client, unless certain conditions are met. Importantly, this disqualification also applies to any other lawyer in the firm.

An "ethical screen" may permit a lawyer to represent an adverse party, provided that the lawyer took steps to minimize the amount of confidential information received from the prospective client.

As will be shown, applying these concepts in the real world can be tricky and difficult, as one prominent West Coast law firm (and its client) recently learned.

Consider the following two factual scenarios. In the first, a partner in a law firm receives a telephone call from a representative of Corporation A asking about a potential breach of contract action against a customer, Corporation B. The lawyer takes some notes about the nature of the dispute, the amount at issue, and other details, only to learn shortly thereafter during a conflicts check that B is a regular client of another partner in his firm. Can the law firm undertake the representation of B if A files...

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