Struggles in the Legal World. ABA Clarifies "Reasonable Measures" to Avoid Firm Conflicts

• Pages: 9-9
• Date: 01 January 2026
• Published date: 01 January 2026
• Author: Samantha J. Stillo
• Subject Matter: Civil Law

Published in Litigation News Volume 51, Num ber 2, Winter 202 6. © 2026 by the Amer ican Bar Ass ociation. Rep roduced with pe rmission. A ll rights reser ved. This info rmation or any po rtion thereof

may not be copied o r disseminated i n any form or by any means o r stored in an elec tronic databas e or retrieval system w ithout the expres s written consen t of the American Ba r Association .

n an ethics opinion released by the

ABA’s Standing Committee on Ethics

and Professional Responsibility, the

committee scrutinized what “reason-

able measures” a personally disquali-

f‌ied lawyer should take to ensure that

a conf‌lict of interest is not imputed to

his or her law f‌irm under Model Rule

1.18. In Formal Opinion 510, the ABA

encourages attorneys to ask prospec-

tive clients for the minimum informa-

tion reasonably necessary to determine

whether to accept the matter, as well

as warning the prospective client to

avoid giving more information than is

requested. ABA Litigation Section lead-

ers advise law f‌irms to implement poli-

cies and procedures to avoid f‌irm-wide

disqualif‌ication.

ABA Model Rule of Professional

Conduct 1.18 sets forth a lawyer’s

duties to a prospective client, a “per-

son who consults with a lawyer about

the possibility of forming a client-

lawyer relationship with respect to a

matter.” According to the rule, even

if a prospective client does not ulti-

mately form a client-lawyer relationship

with a lawyer, the prospective client is

nonetheless entitled to conf‌identiality

protections. Rule 1.18 further provides

that any lawyer who learns conf‌iden-

tial information from the prospective

client generally may not disclose that

information or use it adversely to the

prospective client unless, either during

the consultation or thereafter, the pro-

spective client gives informed consent

conf‌irmed in writing.

Under Rule 1.18(c), a lawyer is dis-

qualif‌ied from undertaking a represen-

tation in the same or a substantially

related matter against a prospective

client if the lawyer received “disqualify-

ing information,” or “information from

the prospective client that could be sig-

nif‌icantly harmful to” the prospective

client. According to the opinion, the

purpose behind this provision is that “a

consultation with a prospective client

may be brief and that it cannot be pre-

ABA Clarif‌ies “Reasonable Measures”

to Avoid Firm Conf‌licts

sumed that the prospective client pro-

vided the lawyer with information that

could later be signif‌icantly harmful to

the prospective client, particularly given

that lawyers may have taken precau-

tions to avoid learning such disqualify-

ing information.”

Rule 1.18(c) provides: “If a lawyer is

disqualif‌ied from representation under

this paragraph, no lawyer in a f‌irm with

which that lawyer is associated may

knowingly undertake or continue rep-

resentation in such a matter, except as

provided in paragraph (d).” Paragraph

(d) provides that the conf‌lict of the

individual lawyer will not be imputed

to that lawyer’s f‌irm in two situations.

The f‌irst is “when both the potential

client and the aected client provide

informed consent, conf‌irmed in writ-

ing.” The second is “when the person-

ally disqualif‌ied lawyer took ‘reasonable

measures’ to avoid exposure to more

disqualifying information than was

reasonably necessary to determine

whether to represent the prospective

client.” In its opinion, the committee

notes that little guidance had been pro-

vided as to what constitutes “reason-

able measures” and acknowledges that

such determination calls for a “fact-

sensitive” inquiry. Whether a lawyer in

fact took “reasonable measures” as set

forth in Rule 1.18(d) depends largely in

part on the lawyer’s “background and

experience, the client’s identity, and the

nature of the engagement.”

According to the opinion, lawyers

“must exercise discretion” in preliminary

conversations with prospective clients.

Lawyers must also “limit the informa-

tion sought from prospective clients.”

Thus, “seeking and obtaining” informa-

tion “without limitation” would fall short

of the “reasonable measure” standard.

Lawyers are further encouraged to warn

the prospective client that the lawyer

“has not yet agreed to take on the mat-

ter and that information should be lim-

ited only to what is necessary for the

lawyer and client to determine whether

to move forward with an engagement.”

There is no magic language required,

but the reasonableness of a lawyer’s

measures “depends on whether they

are designed to limit the information

received before a lawyer-client relation-

ship is established.”

“Because the inquiry is very fact-

sensitive, every size and type of law

practice would need to implement poli-

cies tailored to their own practice and

potential clients,” states Jeanne Huey,

Dallas, TX, Co-Chair of the Litigation

Section’s Ethics & Professionalism

Committee. “Of course, no call should

be taken until a f‌irm-wide conf‌licts

check has been run,” she advises. “The

time it takes for that conf‌licts check,

even if an hour or two, also gives the

lawyer the ability to f‌ind out what they

can learn independently about the

potential client and case, which may aid

them in deciding whether they want to

go ahead and learn more information

on a call or in-person meeting even if

potentially disqualifying,” adds Huey.

“Law f‌irms should also provide regu-

lar training and education to attorneys

and sta regarding conf‌licts of inter-

est and the importance of maintain-

ing client conf‌identiality, which can

help attorneys recognize and address

conf‌lict issues more eectively,” rec-

ommends Pamela Sakowicz Menaker,

Chicago, IL, Chair of the Membership

and Diversity Subcommittee of the

Section’s Ethics & Professionalism

Committee.

RESOURCES

David L. Hu dson Jr., “What are ‘rea son-

able measur es’ to prevent law f‌irm con-

f‌licts? New ABA et hics opinion explore s,”

ABA J. (Mar. 20, 2024).

Michael LeB o, “Practical Advi ce to

Avoid Disqualif‌i cation when Intervi ewing

Potential Clie nts: A Summary of Form al

Opinion 51 0,” Prof’l Liab. Litig. (Apr. 2,

2024).

By Samantha J. Stillo, L itigation News Contributing Editor

WINTER 202 6 • VOL. 51 NO. 2

9 | A BA LITIGATION SECTION

ETHICS STRU GGLES IN THE LEGAL WORLD