Kansas Bar Journal
Vol. 77 No. 7.
Thinking Ethics: Initial Interview with Prospective Clients: How to Prevent Conflicts of Interests
Vol. 77 No. 7 July/August 2008Thinking Ethics: Initial Interview with Prospective Clients: How to Prevent Conflicts of InterestsBy Professor Sheila Reynolds Effective July 1, 2007, the Kansas Supreme Court adopted Kansas Rule of Professional Conduct 1.17, concerning conflicts of interests created by attorney interviews with prospective clients who do not become clients, regardless of whether the prospective client decides not to hire the attorney or whether the attorney decides not to accept representation. Basically, if the attorney does not learn any information that could be "significantly harmful" if used against the prospective client, the attorney is not precluded from later assuming representation of a client with interests adverse to the prospective client in the same or a substantially related matter.
Even if the attorney has learned significantly harmful information, members of the attorney's law firm may represent conflicting interests in the matter, fewer than two conditions. First, the interviewing attorney must have been careful not to obtain more disqualifying information than was necessary to determine whether to represent the prospective client. Second, the interviewing attorney must be timely screened from any participation in the matter, including receiving no part of the fee and giving prompt notice to the prospective client about the screening procedures adopted.(fn1) Screening is allowed in this situation because an attorney-client relationship was never formed and the relationship between the attorney and the prospective client is so limited in time and depth that the full duty of loyalty warranted for actual clients does not apply.
The Kansas Rules of Professional Conduct do not attempt to define what information would be "significantly harmful," because the determination of level of harm will vary depending upon the facts of each case. The Restatement of Law Governing Lawyers, § 15, comment c, provides that when a prospective client seeks to disqualify a lawyer based on the receipt of significantly harmful information, the movant bears the burden of persuasion that the lawyer received such information.(fn2)
When lawyers engage...