Scruples. Unsolicited Client Information, Potential Clients, and 'Taint Shopping

• Author: Michael Downey
• Pages: 64-64

Scruples

Published in Litigation, Volume 47, Number 2, Winter 2021. © 2021 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be

copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 64

MICHAEL DOWNEY

The author is a legal ethics lawyer at Downey Law Group LLC, St. Louis.

“Do you have time for a quick question?”

Paradox asked. “I received an email last

night from a potential client,” Paradox ex-

plained. “The message provided detailed

information about the potential client’s

claim against a former employer.

“I know in-house counsel at the former

employer,” Paradox continued, “and would

be interested in representing the former

employer in the case. But I am worried this

email will prevent me from taking the case.”

“It usually takes consent from both the

attorney and the potential client to form

an attorney-client relationship,” Ethox

answered. “An unsolicited email sent to a

lawyer alone should not create a disquali-

fying conflict.”

“A disqualifying conflict?” Paradox asked,

then remembered, “Oh, you mean a conflict

that we would have to get waived—or re-

solved with an ethics screen—to undertake

the representation.”

“Yes, you remember,” Ethox commended

Paradox.

“So I do not need to worry about this

email?” Paradox pressed.

“Correct, as long as it was actually unso-

licited,” Ethox responded. “To determine

whether the email was truly unsolicited,

we would likely need to review what the

potential client saw before emailing.

“If the firm website invited people to

submit their case information,” Ethox

continued, “that might be enough for a

court to find we invited the communica-

tion, so it was not unsolicited.”

“Our website does not have a pop-up

telling people they do not become our cli-

ent just by emailing us,” Paradox said. “But

I am not sure what we say about inviting

an email. I guess I need to review it.”

“Probably,” Ethox empathized. “And not

just the website. We may need to consid-

er other communications with potential

clients.”

“Don’t worry,” Ethox added, “I can help

you with the review.”

“Oh, good,” Paradox responded. “But if

we do invite emails, then we cannot rep

-

resent the former employer?”

“It is a little more complicated than

that,” Ethox answered. “Under ABA

Model Rule 1.18, if a potential client com-

municates no material confidences, the

lawyer can personally decline to represent

the potential client and then represent

the adverse party in the very same mat-

ter, without the potential client’s consent.

“But it sounds like you did receive dis-

qualifying confidences under Rule 1.18,

so it is likely you personally would be

disqualified, if you cannot get a waiver,”

Ethox said. “Yet, even if you are disquali-

fied, under Rule 1.18(d)(2), the firm could

screen you and then still represent the ad-

verse party as long as you took ‘reasonable

measures to avoid exposure to more dis-

qualifying information than was reason-

ably necessary to determine whether to

represent the prospective client.’”

“What are reasonable measures?”

Paradox asked.

“Rule 1.18 is not much help,” Ethox said.

“But here it would likely involve how we

dealt with prospective clients—like the

pop-up window—as well as how you han-

dled the email itself.

“If you stopped reading once you knew

what the email was about, did not share it

around the firm, and did not ask the send

-

er questions, I anticipate a court would let

us stay on the case, unless our invitation to

receive information was really egregious.”

“This sounds complicated,” Paradox

grumbled.

“It can be,” Ethox agreed. “And there is

one more complication. . . . If the potential

plaintiff was trying to disqualify you from

representing the former employer,” Ethox

said, “then Rule 1.18 provides the email is

not a communication from a prospective

client, so you would not be disqualified.”

“Really?” Paradox asked.

“Yes,” Ethox reassured Paradox. “The

comment to Rule 1.18 explains that a per-

son who communicates with a lawyer for

the purpose of disqualifying the lawyer is

not a prospective client.

“How about if I help you figure this out,”

Ethox concluded.

“That would be wonderful,” Paradox

answered. q

UNSOLICITED CLIENT

INFOR MATION,

POTENTIAL CLIENTS,

AND “TAINT SHOPPING”