Freivogel on Conflicts
 
 
 
 
Initial Interview -
Hearing too Much


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Prospective Client Smith makes an appointment to see Partner A at Law Firm.  At their meeting, Smith tells Partner A about a claim she wants to bring against Jones.  Partner A says he's interested, but he must run a conflicts check.  After the first meeting, he does so and discovers that Jones is a current client of Law Firm on matters like the one described by Smith.  Partner A reports back to Smith that he cannot take Smith's case.  Smith finds another law firm and sues Jones.  Jones comes to Partner B at Law Firm and asks Partner B to defend him.  Partner B does a conflicts check, which comes up clean.  Partner B opens a file.  Partner A sees the new business report and discovers that Partner B has taken on the case against Smith.  Partner A plans not to tell Partner B about his meeting with Smith and figures that will make everything alright.  Will it?  Or, must Partner A now go to Partner B and Law Firm's Executive Committee and say that Law Firm must withdraw from representing Jones against Smith?

       The ABA Approach.  Some would say that the answer is easy: Law Firm must get out.  They would cite ABA Op. 90-358 (1990), a very comprehensive discussion of hearing too much at the initial interview.  If Partner A learned anything at all from Smith at the initial interview, the ABA Committee would impute that information to everyone in Law Firm.  The Committee would disqualify Law Firm in the above scenario.

        The Restatement and Model Rule Approach.  Others would say that Law Firm ought to be able to salvage the situation and stay in the case by creating a screen around Partner A.  Those of this view would cite Restatement § 15(2)(a), which provides for precisely that.  In February 2002 the ABA House of Delegates approved the Ethics 2000 proposal to add new Rule 1.18.  This rule first establishes that the lawyer has a duty of confidentiality to "prospective new clients," even though they never become clients.  The rule goes on to say that the interviewing lawyer can be screened, so that others in her firm can be adverse to the prospective new client.  A screen prevented disqualification in such a situation in Halligan v. Blue Cross & Blue Shield of North Dakota, 1994 U.S. Dist. LEXIS 12180 (D.N.D. 1994).  In N.J. Op. 695 (March 29, 2004), the committee said the same screening provision in New Jersey's new Rule 1.18 would work.  And, here is a case applying that rule and approving a screen, Ellis v. Ethicon, Inc., 2005 U.S. Dist. LEXIS 25705 (D.N.J. Oct. 27, 2005).  In Modanlo v. Ahan, 342 B.R. 230 (D. Md. 2006), construing Maryland's version of Model Rule 1.18, the court expressed skepticism whether one partner heard anything meaningful during initial interview, and in denying a motion to disqualify the firm, the court ordered that partner screened.  In Friskit, Inc. v. RealNetworks, Inc., 2007 U.S. Dist. LEXIS 51770 (N.D. Cal. July 5, 2007), the court recognized a screen but did not mention Model Rule 1.18 or the Restatement.

        The courts' analyses of the initial interview situation have been inconsistent and not wholly satisfying.  Some courts say that the key is whether a lawyer-client relationship was established at the initial meeting.  For example, assume in the above example that such a relationship did arise between Partner A and Smith.  Then, when Partner A told  Smith about the conflict, Smith became a "former client."  Under Model Rule 1.9(a), Law Firm could not represent Jones against former client, Smith, because Smith v. Jones is "substantially related" to the meeting between Partner A and Smith.  Other courts will look at how much the prospective client told the lawyer in deciding whether a lawyer-client relationship was established.  Yet other courts ignore the attorney-client relationship and simply say that prospective clients' confidences should be protected.  That is the position of ABA Op. 90-358 (1990), and of Restatement  § 15.

        In the following two paragraphs the cases are grouped by whether or not the law firm was disqualified.  Notwithstanding the inconsistent rationales, the results appear consistent.  If it appears the prospective client will, or reasonably could, be harmed by what was said at the initial meeting, the court will probably disqualify the law firm.  In those cases where disqualification was denied, the court could cite some circumstance that suggested the client would not be harmed (seven-minute meeting; meeting held eight years ago; lawyer does not remember meeting; etc.)

        Cases in Which Firm Was Disqualified. EEOC v. Peters’ Bakery, 2014 WL 7272943 (N.D. Cal. Dec. 22, 2014); De David v. Alaron Trading Corp., 2012 U.S. Dist. 57554 (N.D. Ill. April 23, 2012) (applying Rule 1.18 according to its terms); Li v. A Perfect Day Franchise, Inc., 2011 U.S. Dist. LEXIS 114761 (N.D. Cal. Oct. 5, 2011); In re Muscle Improvement, Inc., No. 2:10-bk-012736SB (C.D. Cal. Aug. 31, 2010) (bankruptcy court applying California rules); Laryngeal Mask Co. Ltd. v. Ambu A/S, 2008 U.S. Dist. LEXIS 15320 (S.D. Cal. Feb. 25, 2008) (patent case);  Fierro v. Gallucci, 2007 U.S. Dist. LEXIS 89296 (E.D.N.Y. Dec. 4, 2007) (even though lawyer simply could not remember phone calls); Hamrick v. Union Township, 79 F. Supp. 2d 871 (S.D. Ohio 1999); Gilmore v. Goedecke Co., 954 F. Supp. 187 (E.D. Mo. 1996); Griffen v. East Prairie School District, 945 F. Supp. 1251 (E.D. Mo. 1996); Green v. Montgomery County, 784 F. Supp. 841 (M.D. Ala. 1992); Bridge Products Inc. v. Quantum Chem. Corp., 1990 U.S. Dist. LEXIS 5019 (N.D. Ill. 1990); First American Carriers, Inc. v. Kroger Co., 787 S.W.2d 669 (Ark. 1990); ); People ex rel Dept. of Corporations v. Speedee Oil Change Systems, Inc., 980 P.2d 371 (Cal. 1999); Clark v. Ferris, 1992 Conn. Super. LEXIS 3400 (Conn. Super. 1992) (court ruled only that movant was entitled to hearing on motion to disqualify); Metcalf v. Metcalf, 785 So. 2d 747 (Fla. App. 2001); Garner v. Somberg, 672 So. 2d 852 (Fla. App. 1996); Lovell v. Winchester, 941 S.W.2d 466 (Ky. 1997); Bays v. Theran, 639 N.E.2d 720 (Mass. 1994); Cox v. Ryan, 2006 Me. Super. LEXIS 240 (Me. Super. Nov. 30, 2006); Perry v. Perry, 2013 Mont. LEXIS 3 (Mont. Jan. 15, 2013) (Montana S. Ct.'s first look at Mont. Rule 1.20 [same as MR 1.18]); Herbert v. Haytaian, 678 A.2d 1183 (N.J. Super. 1996); Cohen v. Cohen, No. 2013-00646 (N.Y. App. Div. Feb. 4, 2015) (dispute about what was disclosed; "appearance of a conflict of interest;" not mention of Rule 1.18); Desbiens v. Ford Motor Co., 439 N.Y.S.2d 452 (N.Y. App. 1981); Lee v. Cintron, 2009 N.Y. Misc. LEXIS 2752 (N.Y. S. Ct. Oct. 6, 2009); Chemcraft Holdings Corp. v. Shayban, 2006 NCBC LEXIS 15 (N.C. Super. Ct. Oct. 5, 2006) (lawyer sat on E-mail from eventual opponent too long); The Attic Tent, Inc. v. Copeland, 2006 U.S. Dist. LEXIS 57601 (W.D.N.C. Aug. 14, 2006) (patent infringement case; lawyer had earlier been interviewed by other side, and other sides poor financial condition was discussed); In re Z.N.H., 2009 Tex. App. LEXIS 1300 (Tex. App. Feb. 26, 2009) (fact that lawyer could not remember earlier meeting no relevant); In re Gerry, 173 S.W.3d 901 (Tex. App. 2005) (42-minute interview); Watt v. Nicholls, 2011 ONSC 2814 (CanLII) (Ont. Super. Ct. May 5, 2011); Achakzad v. Zemaryalai, 2010 ONCJ 24 (CanLII) (Ont. Ct. J. Jan. 25, 2010) (two telephone conversations; lawyer could not remember; no formal retainer); Rosenstein v. Plant, 2010 ONSC 502 (CanLII) (Ont. Super. Ct. Jan. 26, 2010) (two brief conversations); Wolfond v. Wolfond, 2007 SKQB 425 (CanLII) (Sask. Q.B. Nov. 19, 2007) (lawyer could not recall conversation thirteen years earlier; still disqualified).

       Cases in Which Firm Was not Disqualified. Jimenez v. Rivermark Cmty. Credit Union, 2015 WL 2239669 (D. Ore. May 12, 2015) (straightforward application of Rule 1.18); Danielsen v. Pa. Coll. of Tech., 2014 U.S. Dist. LEXIS 143548 (M.D. Pa. Oct. 9, 2014) (applied the screening rule according to its terms); Goldmanis v. Insinger, 2014 U.S. Dist. LEXIS 103803 (W.D. Wash. July 29, 2014); McCool v. Operative Plasterers & Cement Masons Int’l Ass'n, 2014 U.S. Dist. LEXIS 19650 (E.D. Mich. Feb. 18, 2014); Tiversa Holding Corp. v. LabMD, Inc., 2013 U.S. Dist. LEXIS 178675 (W.D. Pa. Dec. 20, 2013) (screen);  Kramer v. American Bank & Trust Co., 2013 U.S. Dist. LEXIS 158157 (N.D. Ill. Nov. 5, 2013) (court did not believe prospective new client);  Doca Co. v. Westinghouse Elec. Co., LLC, 2012 U.S. Dist. LEXIS 165412 (W.D. Pa. Nov. 20, 2012); Matthews v. United States, 2010 U.S. Dist. LEXIS 11849 (D. Guam Feb. 9, 2010) (not “prospective client” under Guam’s Rule 1.18); Smallwood v. NCSOFT, 2010 U.S. Dist. LEXIS 17481 (D. Hawaii Feb. 26, 2010); Sershen v. Cholish, 2009 U.S. Dist. LEXIS 96223 (M.D. Pa. Oct. 15, 2009) (movant failed to specify “harmful” “information” under Rule 1.18(c); Conn v. U.S. Steel Corp., 2009 U.S. Dist. LEXIS 7832 (N.D. Ind. Feb. 2, 2009) (union had hired lawyer to represent employee; not really her lawyer); Mindy's Restaurant, Inc. v. Watters, 2009 U.S. Dist. LEXIS 15423 (N.D. Ill. Feb. 27, 2009); Bone Care Int'l, LLC v. Pentech Pharmaceuticals, Inc., 2009 U.S. Dist. LEXIS 7098 (N.D. Ill. Feb. 2, 2009) (analysis under Rule 1.18(c); Lyms, Inc. v. Millimaki, 2009 U.S. Dist. LEXIS 3214 (S.D. Cal. Jan. 15, 2009) (on telephone, lawyer approached lawyer to be mediator; turned down; proposed mediator then wound up on other side; no disqualification because not enough disclosed in telephone conversation); Leathem v. City of LaPorte, 2008 U.S. Dist. LEXIS 32820 (N.D. Ind. April 17, 2008) (court, ignoring Indiana Rule 1.18, said no lawyer-client relationship formed and that all the facts had come out in the litigation); ADP, Inc. v. PMJ Enterprises, LLC, 2007 U.S. Dist. LEXIS 17808 (D.N.J. March 14, 2007);  Knigge v. Corvese, 2001 U.S. Dist. LEXIS 10254 (S.D.N.Y. 2001) (series of unanswered voice mails from prospective client only communication between prospective client and lawyer);  Polyagro Plastics, Inc. v. Cincinnati Milacron, Inc., 903 F. Supp. 253 (D.P.R. 1995) (seven-minute conversation; essential facts wound up in complaint); Poly Software Int'l. Inc. v. Su, 880 F. Supp. 1487 (D. Utah 1995) (court impressed by fact that movant had shopped around for a lawyer, creating the possibility that qualified intellectual property lawyers in the region could be "used up" [our words]); Davis v. York Int'l. Corp., 1993 U.S. Dist. LEXIS 7137 (D. Md. 1993) (answering questions in CLE class did not create lawyer-client relationship); Bennett Silvershein Assoc. v. Furman, 776 F. Supp. 800 (S.D.N.Y. 1991) (one hour meeting ten years prior); B.F. Goodrich Co. v. Formosa Plastics Corp., 638 F. Supp. 1050 (S.D. Tex. 1986); Hughes v. Paine, Webber, Jackson & Curtis Inc., 565 F. Supp. 663 (N.D. Ill. 1983); INA Underwriters Ins. Co. v. Rubin, 635 F. Supp. 1 (E.D. Pa. 1983); Zimmerman v. Zimmerman, 20 Cal. Rptr. 2d 132 (Cal. App. 1993); Camuto v. Camuto, 1999 Conn. Super LEXIS 2724 (Conn. Super. 1999) (information shared three and half years before was "generic"); Derrickson v. Derrickson, 541 A.2d 149 (D.C. App. 1988) (short conversation eight years prior); Butler v. Romanova, 2008 Me. LEXIS 100 (Me. June 17, 2008); State of Missouri v. Hon. Joseph S. Dueker, 2011 Mo. App. LEXIS 1039 (Mo. App. Aug. 9, 2011) (movant erroneously relied upon Rule 1.9 instead of Rule 1.18); In re Duvall, 67 S.W.2d 736 (Mo. App. 2002) (notes revealed short meeting with no exchange of confidences); Pro-Hand Services Trust v. Monthei, 49 P.3d (Mont. 2002) (two telephone conversations with the lawyer's secretary and no showing of shared confidences); O Builders & Associates, Inc. v. Yuna Corp. of NJ, 2011 N.J. LEXIS 615 (N.J. May 25, 2011); Unger v. Unger, 790 N.Y.S.2d 176 (N.Y. App. 2005) ("one innocuous exchange of pleasantries in a restaurant"); Potters v. 71st Street Lexington Corp., 779 N.Y.S.2d 473 (N.Y. App. 2004) (four years prior; "poured [her] heart out," but lawyer did not remember; he's not handling this case; his partners are, but they have not discussed); Cummin v. Cummin, 695 N.Y.S.2d 346 (N.Y. App. 1999) (first meeting six years prior, no recollection of meeting in firm, and screen implemented); Porter v. Beaulieu, 736 N.Y.S.2d 153 (N.Y. App. 2002) (ten-minute conversation in lawyer's waiting room); In the Matter of the Adoption of Baby Boy C, 784 N.Y.S.2d 334 (N.Y. Misc. 2004) (information conveyed became public record); Cargould v. Manning, 2009 Ohio App. LEXIS 4913 (Ohio App. Nov. 5, 2009) (no showing of exchange of “non-discoverable,” “significantly harmful” information); State ex rel. DeFrances v. Bedell, 191 W. Va. 513 (W. Va. 1994) (no lawyer-client relationship formed, and no confidences exchanged); Zinck v. Zinck, 2009 CanLII 66149 (Ont. Super. Ct. Nov. 25, 2009) (opponent present at only meeting); Tauber v. Tauber, 2009 CanLII 72088 (Ont. Super. Ct. Dec. 23, 2009) (one seven-minute phone call; no confidences exchanged; court smelled tactics); Caballero v. O'Callaghan, 2011 BCSC 1023 (CanLII) (S. Ct. B.C. July 28, 2011) (a few brief contacts).

        Disciplinary Counsel v. Cicero, 2012 Ohio LEXIS 2905 (Ohio Nov. 28 2012).  Lawyer was being consulted by an alleged criminal defendant, but was not finally hired by the suspect.  Because some of what the suspect told Lawyer suggested that some Ohio State football players were guilty of misconduct, Lawyer relayed what he had heard to the Ohio State coach.  In this opinion the court upheld a one-year suspension for Lawyer's violation of Ohio Rule 1.18.

        In In re Carpenter, 2015 WL 1959469 (N.D. May 1, 2015), the court upheld a 90-day suspension for a lawyer who had violated Rule 1.18 by sharing oil and gas title information he had received from a prospective new client. The opinion contains an analysis of “significantly harmful.”

        Va. Op. No 1832 (May 10, 2007).  Former Wife (“Wife”) called Lawyer’s secretary to make an appointment with Lawyer.  Wife claimed that she told the secretary all about her case.  Wife never spoke with Lawyer.  Lawyer wound up representing Former Husband (“Husband“) against Wife, and Wife objected.  In this opinion the Committee held that Lawyer can represent Husband provided Lawyer’s erects a screen between Lawyer and Lawyer’s secretary, and the secretary does not tell Lawyer about Wife‘s comments.  The Committee cited Va. Op. No. 1800 (2004), which held that a screen would work for a migratory secretary.

        Maturi v. McLaughlin Research Corp., 2001 U.S. Dist. LEXIS 21893 (D.N.H. December 31, 2001).  No ruling, but court discussed factors it would consider after evidentiary hearing.  The court said that if an attorney-client relationship was express, there would be a presumption that confidences were shared.  If the relationship was implied, the moving party would have to show that confidences were shared.

        In Clark Capital Mgmt. Group v. Annuity Investors Life Ins. Co, 149 F. Supp. 2d 193 (E.D. Pa. 2001), the defendant's lawyer contacted Biemer, a partner at Dilworth Paxson about becoming local counsel for the defendant.  They had several telephone conversations about the facts and strategy.  Dilworth was not hired.  Friedman, another partner at Dilworth, later appeared as counsel for the plaintiff.  Defendant moved to disqualify Dilworth.  The court denied the motion.  It found that because the defendant did not actually hire Dilworth, it was not a "former client."  The court noted in passing that if defendant had been a former client, this was the "same" matter in which Dilworth would have represented the defendant, and Dilworth would have been disqualified.  Nevertheless, the court was concerned that Biemer might have received confidential information from the defendant during the initial telephone conversations.  The court ruled that Dilworth could stay in the case on the condition that it set up a screen between Biemer and the rest of the firm.  The court did not mention the Restatement § 15(2)(a), which would have provided the same result.  For a similar result, see Metamorfyx, L.L.C. v. Belkin Components, 2002 U.S. Dist. 10927 (N.D. Ill. June 18, 2002).

        Med-Trans Corp., Inc. v. City of California City, 156 Cal. App. 4th 655 (Cal. App. 2007).  In this case Corp. A is suing City.  During the pendency of this case, Corp. A’s lawyer (“Lawyer”) met with a high ranking official of City (“Official”) about Lawyer’s representation of Corp. B in a lawsuit against County (not this case).  Both suits involved the transportation of patients by Corps. A & B.  During the meeting there was a discussion of the City’s possibly joining Corp. B in the suit against County.  Implied in that discussion was that Lawyer might represent City in that case.  Because of that meeting City moved to disqualify Lawyer in this case.  The trial court granted the motion.  In this opinion the appellate court reversed.  The court held that there was no showing that any confidences were shared in the meeting.  As to Lawyer’s possibly representing City in the case against County, the appellate court held that that possibility was simply too remote to apply the rule relating to potential new clients.  In that connection the court noted that Lawyer, not City, called the meeting.

        Novelty Textile, Inc. v. Windsor Fashions, Inc, 2013 U.S. Dist. LEXIS 38861 (C.D. Cal. March 20, 2013).  A representative of Plaintiff ("Rep.") met with Lawyer to discuss this case.  Rep. knew Lawyer was with the firm on the other side.  Rep. did not tell Lawyer enough about who he was to cause Lawyer to do a conflicts check.  Plaintiff moved to disqualify Lawyer on the basis of this interview.  In this opinion the court said nothing doing.  The court said that normally such an interview does create confidentially obligations, but under these circumstance Lawyer was forgiven, and his firm was allowed to continue.

        In re Faller, 2014 Bankr. LEXIS 2949 (W.D. Ky. July 8, 2014). Defendant moved to disqualify Plaintiff’s law firm (“Law Firm”) because he had earlier discussed this case with two lawyers from Law Firm. In this opinion the bankruptcy judge denied the motion. First, the court held that Defendant had never been a client of Law Firm. Among other things, the court noted that Law Firm sent Defendant two letters saying Law Firm was not taking on Defendant’s matter. Moreover, one of the two lawyers had left Law Firm, and the remaining lawyer could find no record of having received any information of import from Defendant. Thus, the court also held that Rule 1.18 did not apply because Defendant could not show that he told Law Firm anything that was “significantly harmful” to his defense in this case.

        Mayers v. Stone Castle Partners, LLC (N.Y. App. Div. Jan. 8, 2015). Mayers moved to disqualify his opponent’s law firm (“Law Firm”) because Mayers had telephoned a partner in Law Firm about representing him. Law Firm turned Mayers down. The trial court granted the motion to disqualify. In this opinion the Appellate Division reversed. In a thorough discussion of New York’s Rule 1.18 the court concluded that what Mayers said during the telephone call was already “generally known,” thus not “significantly harmful” to Mayers.

        Bernacki v. Bernacki, 2015 WL 177023 (N.Y. Sup. Ct. Jan. 14, 2015). Prior to bringing this matrimonial case, Plaintiff had cursory contacts with members of the staff of Defendant’s law firm. Plaintiff emailed Defendant bragging that he had conflicted out twelve leading matrimonial firms by contacting them. In this opinion the court called this conduct “astonishing” “brazenness” and denied Plaintiff’s motion to disqualify Defendant’s law firm. New York’s version of MR 1.18, unlike MR 1.18, specifically targets such conduct in N.Y. Rule 1.18(e). 
       
        Two cases that did not involve a motion to disqualify shed additional light on the "hearing-too-much" analysis.  Flatt v. Superior Court, 885 P.2d 950 (Cal. 1994) was a malpractice case.  The lawyer involved met with a prospective client and discovered that the eventual opponent was already a client of the firm on other matters.  She turned down the representation.  The turned-down party then allowed the Statute of Limitations to expire.  She sued the lawyer for failing to warn her about the Statute.  The California Supreme Court held that the lawyer had no duty to be disloyal to the firm's existing client and alert the turned-down party about the Statute of Limitations.  People v. Gionis, 892 P.2d 1199 (Cal. 1995), was a criminal case.  The issue was whether a lawyer could testify at the trial about what the defendant had told him.  As soon as the defendant and the lawyer met the first time, the lawyer said he would not represent the defendant.  The defendant then told the lawyer about the case.  The court held that it was not error to allow the prosecution to call the lawyer and ask about the conversation with the defendant.

        Other Cases Analyzing Whether Early Contacts Created Lawyer-Client Relationship.  Morris v. Margulis, 718 N.E.2d 709 (Ill. App. 1999), leave to appeal granted, 724 N.E.2d 1269 (Ill. 2000) ("might have"); Callas v. Pappas, 907 F. Supp. 1257 (E.D. Wis. 1995) (discussion and review of documents created relationship); Richardson v. Griffiths, 560 N.W.2d (Neb. 1997) (phone discussion and no bill sent, but court found relationship); Capacchione v. Charlotte-Mecklenburg Bd. of Ed., 9 F. Supp. 2d 572 (W.D.N.C. 1998) (school board presentation did not create relationship).

        Norman T. v. Kerrie W., 2015 WL 1740387 (W. Va. April 13, 2015). H and W were divorced in November 2010. A “parenting plan” agreement involving two children was adopted. In January 2014 W brought this case to “relocate” the children to another county. Lawyer appeared for H to object. W moved to disqualify Lawyer. The Family Court granted the motion. The circuit court affirmed. In this opinion the Supreme Court of Appeals affirmed. The reason for the disqualification was that, prior to the 2010 divorce, W had consulted with Lawyer for one hour about a potential divorce, custody, and visitation, and paid a $125 consultation fee. The court found that that consultation was substantially related to this relocation proceeding, per Rule 1.9(a). The court relied upon Rule 1.9(a) even though W did not retain Lawyer. [Note: West Virginia has a Rule 1.18, which appears to be the same, or nearly so, as MR 1.18. Yet, the court did not mention that rule. For those curious about the name, the West Virginia Supreme Court of Appeal is the state’s highest court and its only appellate court.]

        Applied Asphalt Techs. v. Sam B. Corp., 2016 WL 427070 (D. Utah February 3, 2016). Patent infringement case. Plaintiff is the third (and current) owner of the patent (“Owner 3”). Evidently, the inventing company, Owner 1, assigned the patent to Owner 2 in 2013. When Plaintiff/Owner 3 acquired the patent from Owner 2 is not clear. In 2010 representatives of the first owner (“Owner 1”) met with Law Firm about bringing a possible infringement case against Defendants. Law Firm has now appeared for one or more defendants. Plaintiff/Owner 3 moved to disqualify Law Firm. In this opinion the magistrate judge denied the motion. The analysis was under Utah Rule 1.18. First, the court held that Plaintiff/Owner 3 could assert Owner 1’s “prospective client” status under Rule 1.18 even though the “prospective client” no longer owned the patent. Second, as a factual matter, what Law Firm learned during the 2010 meeting was not “significantly harmful” to Owner 1. Third, the court applied a weighing test as to “potential prejudice” of what transpired at the meeting. The court left the door open for disqualification if Law Firm discovers it had more information than its lawyers recalled in response to the motion to disqualify.

        Keuffer v. O.F. Mossberg & Sons, Inc., 2016 WL 3067442 (Mont. May 31, 2016). Personal injury case against gun manufacturer. Defendant is represented by Law Firm 1 and Law Firm 2, the former “local counsel” the latter pro hac vice and lead counsel. Prior to filing the case Plaintiff met with a member of Law Firm 1. When Law Firm 1 showed up on the other side, Plaintiff moved to disqualify both Firms 1 and 2. The trial judge granted the motion. In this opinion the court affirmed, with two dissents. There is little indication that Plaintiff told Law Firm 1 anything significant. Both the trial court and the majority in this opinion put great emphasis on the fact that the lead lawyer, in deposing Plaintiff, asked her about her meeting with Law Firm 1, seeming deliberately to intimidate Plaintiff. All of this was under Montana’s version of MR 1.18. The dissent was based upon that part of the rule which required that Plaintiff provide information to Law Firm 1 that was “significantly harmful” to Plaintiff to be disqualifying. There was little showing of that.
       
        Ethics Opinions
.  The following opinions are basically similar to ABA Op. 90-358 (1990): Del. Op. 1990-1 (1990); R.I. Op. 91-72 (1991); and Vt. Op. 96-90 (1996).  L.A. Op. 506 (2001) says that a lawyer who has interviewed a prospective new client has a duty of confidentiality to that person even though a lawyer-client relationship did not develop.  N.Y. City Op. 2013-1 (undated) and Utah Op. 05-04 (September 2005) discuss the lawyer’s obligations upon “hearing too much,” including the screening provisions of new Model Rule 1.18.  Cal. Op. 2003-161 (undated) (cocktail chatter could get lawyer disqualified). N.Y. Op. 1067 (July 2015), Law Firm comprises Lawyers X, Y, and Z. X and Y handled a nasty custody case for Patriarch against Patriarch’s son (“Son”). After that matter concluded, Son came to Z about his own estate planning. The opinion discusses the effect of New York’s version of MR 1.18 on who is entitled, or obligated, to report what to whom. We will not repeat the various conclusions here, but will say there appear to be no surprises and that the results would be similar, if not the same, under MR 1.18.

        "Set-up" Will Not Work. Va. Op. 1794 (June 30, 2004).  Husband and Wife were planning a divorce.  Husband interviewed all the divorce lawyers in their community on the pretense that he wanted to hire them.  In each case he divulged confidences.  Later Wife tried to hire one of the interviewed lawyers.  The committee held that Wife’s lawyer could handle the matter, because Husband could not have had a “reasonable expectation of privacy,” given the motive for the earlier interview.

        N.D. Op. 11-02 (March 2, 2011).  Mother came to Lawyer upon learning that her daughter had been molested some years before.  When Mother told Lawyer that the alleged molester was a person who was a close friend of Lawyer, Lawyer informed Mother that he could not be involved.  In this opinion the committee held that Lawyer could ethically represent the friend in the event criminal charges were brought.

        When an unsolicited E-mail does not prevent lawyer from representing other side.  San Diego Op. 2006-1 (undated).  Person A sends E-mail to Lawyer regarding possible representation.  E-mail contains information adverse to Person A (she had a couple of drinks before the accident).  Lawyer did not have a Web site, but her E-mail address was in a publicly available data base of the state bar.  Before reading the E-mail Lawyer had a conference with person B about being adverse to A.  Lawyer later reads A’s E-mail.  Can Lawyer represent B against A.?  “Yes,” according to this opinion.  It relies in part on Ariz. Op. 02-04 and ABCNY Op 2001-1, which reached similar conclusions.  In Mass. Op. 2007-1 (May 2007, the Committee said that if the E-mail address appears on the firm Web site, and there is no warning about not sharing confidences, the receiving lawyer and the entire law firm can be disqualified.  In Iowa Op. 07-02 (Aug. 8, 2007), the Committee opined that where, from the lawyer’s marketing materials, a reasonable person would believe the lawyer is available and would believe that the lawyer expected to receive the information, then the lawyer cannot represent the other side.  Where, however, all the lawyer does is publish his or her telephone number, no reasonable person would believe that he or she may send information to the lawyer in confidence.  Cal. Op. 2005-168 (undated) holds that failure to post a clear warning on a lawyer's Web site not to convey confidences could get the lawyer disqualified.

        Miness v. Ahuja, 2010 U.S. Dist. LEXIS 77154 (E.D.N.Y. July 31, 2010).  Plaintiff sold two nursing homes to Defendants.  A dispute arose, leading to this case.  Plaintiff moved to disqualify the Defendants' lawyer ("Lawyer").  In this opinion the magistrate judge granted the motion.  Plaintiff and Lawyer had been weekly golfing buddies for ten years.  During those rounds and during their frequent breakfasts together Plaintiff discussed his business and personal issues in great detail.  Toward the end of those ten years Lawyer offered to represent Plaintiff, but Plaintiff always used other lawyers.  The court applied New York's new Rule 1.18 according to its terms.

        Sullivan v. Cangelosi, 2011 N.Y. App. Div. LEXIS 3613 (N.Y. App. Div. May 5, 2011).  Plaintiff and Defendant were neighbors and involved in some kind of feud.  Before this case was filed, Defendant called Lawyer about representation.  Lawyer informed Defendant that Lawyer represented Plaintiff.  Lawyer suggested that Defendant write Lawyer a letter explaining his position, and Lawyer suggested that Defendant avoid any contact or confrontation with Plaintiff.  Based upon that one phone call Defendant moved to disqualify Lawyer.  The trial court granted the motion.  In this opinion the Appellate Division reversed.  The court said that Lawyer did not learn anything confidential from Defendant and that Lawyer was only trying to "diffuse the dispute."

        Allen v. Steele, 2011 Colo. LEXIS 365 (Col. May 9, 2011).  The court noted that Colorado's version of MR 1.18 only protected non-clients as to confidentiality and conflicts of interest.

        In re Newton, 2011 Ill. App. LEXIS 715 (Ill. App. June 30, 2011).  This opinion deals with the award of fees in a divorce action.  However, it also contains a discussion of how a two-hour initial consultation can lead to a lawyer-client relationship for conflict-of-interest purposes.

        Justinian Capital SPC v. WestLB AG, 2011 N.Y. App. Div. LEXIS 9366 (N.Y. App. Div. Dec. 27, 2011).  To understand this case, one must read Bank Hapoalim B.M. v. WestLB AG, 2011 N.Y. App. Div. LEXIS 1566 (N.Y. App. Div. March 3, 2011).  In the earlier case Law Firm was disqualified from representing the plaintiff because lawyers at Law Firm had been interviewed by a defendant but not retained.  This case involved the same defendants but a different plaintiff.  Nevertheless, in this opinion the court held that the matters both involved securities misconduct and thus were "substantially related," and that Law Firm should be disqualified in this case, as well.

        Zalewski v. Shelroc Homes, LLC, 2012 U.S. Dist. LEXIS 19370 (March 6, 2012).  In an earlier case (not this case) Homebuilder No. 1 and others sued Homebuilder No. 2 and others for copyright infringement, alleging that No. 2 had copied No. 1's floor plan for a new house No. 2 had constructed.  Two defendants in that case interviewed Lawyer about representing them, but they decided not to hire Lawyer.  Then, Homebuilder No. 1 filed another similar case against No. 2 (this case) with Lawyer representing  the plaintiffs.  No. 2 moved to disqualify Lawyer.  In this case the magistrate judge granted the motion.  In connection with N.Y. Rule 1.18, the parties disputed mightily the nature of information the defendants gave Lawyer during the interview.  What convinced the magistrate judge to grant the motion was that counterclaims raised in this case deal with the plaintiffs' alleged abuses arising from Lawyer's use of information from the interview.  Thus, in addition to everything else, Lawyer may well have to be a witness.  Thus, the court disqualified Lawyer from this case only.

        Albert Jacobs, LLP v. Parker, 2012 N.Y. App. Div. LEXIS 2807 (N.Y. App. Div. April 17, 2012).  Plaintiff moved to disqualify the law firm for the defendants ("Law Firm").  The trial court granted the motion.  In this opinion the appellate court affirmed.  Plaintiff, evidently a law firm, had previously discussed merging with Law Firm.  The disqualification was based upon the fact that Plaintiff had discussed with Law Firm Plaintiff's earlier representation of one of the defendants in this case, now being represented by Law Firm.

        Cascades Branding Innov., LLC v. Walgreen Co., 2012 U.S. Dist LEXIS 61750 (N.D. Ill. May 3, 2012).  Law Firm represented Co. No. 1, owned by Owner, in litigation.  Later Owner, after selling Co. 1, owned another company (Co. 2), which is the plaintiff in this suit.  Law Firm appeared as counsel for a defendant in this suit.  The plaintiff moved to disqualify Law Firm in this suit.  First, the court held that a lawyer can represent one company and then oppose another company where they were owned by the same owner but at different times.  But, the court granted disqualification on another ground, which was a Rule 1.18 matter.  A member of Co. 2's current corporate family had communications with Law Firm about a representation that related to this case, but was not precisely this case.  Law Firm did not take that case, but wound up representing a defendant in this case.  The court said that the relationship analysis for Rule 1.18 should be "viewed through the prism of Rule 1.9."  The analysis about what was disclosed to Law Firm in these communications was very fact-intensive.

        Liebnow v. Boston Enters. Inc., 2013 Colo. LEXIS 101 (Col. Feb. 4, 2013).  Plaintiff is suing Restaurant for contracting E. coli from Restaurant's salad.  Restaurant's Colorado lawyer sought the advice of Lawyer A, a partner in a Washington state law firm ("Wash. Firm") that specialized in bringing food-borne disease cases (colloquially referred to as "food poisoning").  Lawyer A gave advice and recommended an expert.  Later, Plaintiff moved to have admitted pro hac vice Lawyer B from Wash. Firm.  Restaurant objected.  The trial court denied Lawyer B's admission.  In this opinion the supreme court affirmed.  The court held that the trial court did not abuse its discretion.  Both courts held that Colorado Rule 1.7(a)(2) (the material limitation rule) applied.  They also held that Lawyer A's knowledge was imputed to Lawyer B under Rule 1.10 and that Plaintiff's purported waiver of the conflict was not effective.  [Author's Note: we are not so sure about the result or the reasoning.  We have never seen the material limitation rule used in just this way.  And, wouldn't it have made sense to at least discuss Rule 1.18 and its screening provision?]

        In re Kaufman, 2014 N.Y. Misc. LEXIS 3321 (N.Y. Sup. Ct. July 30, 2014). Brother 1 is opposing Brother 2 in this decedent's-estate-related litigation.  Two years prior to this opinion, Brother 1 met with Lawyers A & B at Law Firm about this matter.  While substantial information changed hands, Brother 1 never retained Law Firm.  Law Firm showed up representing Brother 2.  Brother 1 moved to disqualify Law Firm.  In this opinion, upon rehearing, the court confirmed an earlier holding that Lawyers 1 & 2 were disqualified. The court also held, in this opinion, that, because of the firm’s failure to erect a timely screen, the entire firm was disqualified. The earlier opinion is at 980 N.Y.S.2d 276 (N.Y. Sup. Ct. 2013). It did not mention N.Y. Rule 1.18. This opinion discusses the rule in some detail.        

        Van Peenen v. Van Peenen, 2014 Ill. App. Unpub. LEXIS 579 (Ill. App. March 25, 2014). Divorce action. Initially, H met with Law Firm for about an hour, for which he paid $300. Lawyer 1 was in the entire meeting. Various other Law Firm personnel popped in and out during the hour, some staying longer than others. After Lawyer 1 left Law Firm, W hired Law Firm, which H then moved to disqualify. The trial court granted the motion. In this opinion the appellate court affirmed. The analysis was under Rule 1.10(b) (MR and Ill. Rule 1.10(b) appear the same). The issue was how much the remaining lawyers in Law Firm learned in the meeting and involved balancing affidavits, memories, probabilities, as well as H’s testimony.

        Mayers v. Stone Castle Partners, LLC, 2014 N.Y. Misc. LEXIS 1326 (N.Y. Sup. Ct. March 28, 2014). Defendants are being represented by Law Firm. Earlier, Plaintiff had contacted members of Law Firm about representing him. During one of the contacts Plaintiff revealed information that Law Firm included in its pleadings on behalf of Defendants. Plaintiff moved to disqualify Law Firm. In this opinion the court granted the motion. First, the court held that Plaintiff failed to show that “significant harm” resulted from his contacts with Law Firm. Thus, Rule 1.18 did not alone operate to disqualify Law Firm. However, the court said the resulting “appearance of impropriety” did justify disqualification.

        Halberstam v. Halberstam, 2014 N.Y. App. Div. LEXIS 7615 (N.Y. App. Div. Nov. 12, 2014). In this divorce action Lawyer represents Plaintiff. Lawyer is Plaintiff’s brother-in-law. Defendant claims he discussed confidences with Lawyer before the divorce case. Defendant moved to disqualify Lawyer. The trial court granted the motion. In this opinion the Appellate Division affirmed, basing its ruling on Defendant’s belief that Lawyer could not represent either party and the resulting “appearance of impropriety.” [Note: we can find the quoted phrase in the N.Y. Rules, only at Rules 1.11 (government employees) and 1.12 (judicial officers). Neither rule applies here.]

        In re Kuntz, No. 20150086 (N.D. Aug. 25, 2015). Discipline case. Lawyer represented H in a child custody matter. Lawyer had earlier had an initial conference with W’s father for which Lawyer charged $100. Lawyer did nothing further for W or her father. In this opinion the court held that Lawyer should be judged under Rule 1.18 instead of Rule 1.9 because neither W nor her father ever became a client, notwithstanding the $100 fee. In a fact-intensive analysis the court said that there was no evidence that W’s father gave Lawyer “significantly harmful information” and held that there was not “clear and convincing evidence” that Lawyer violated a rule. [Note: There is a more in-depth description of the case in the September 9, 2015, edition of the Current Report of the ABA/BNA Lawyers’ Manual on Professional Conduct.]

        Pohl v. Christie, 2016 WL 383086 (Nev. Jan. 28, 2016). For years H and W used a pathway to the beach, which was on Plaintiff’s property. When Plaintiff blocked access to the pathway, H called Lawyer to discuss the rights of H and W. It was a 20-minute call during which H and Lawyer discussed the pathway, its usage, its ownership, as well as legal theories involved. A short time later Lawyer realized that the owner of the pathway was a client and informed H and W that he could not help them. Lawyer then, on behalf of Plaintiff, filed this quiet title case against H, W, and others. H and W moved to disqualify Lawyer. The trial court granted the motion. In this opinion, applying Nevada Rule 1.18, the high court affirmed. Lawyer told Plaintiff about his consultation with H. The high court held that the trial court did not abuse its discretion in holding that the information conveyed by Lawyer to Plaintiff “could be significantly harmful” to H and W.

        In re Corwin Place, LLC, 2016 WL 7394567 (N.D. W. Va. Dec. 19, 2016). Bankruptcy proceeding. Debtor moved to disqualify law firm for a bank/creditor (“Bank”). Prior to bankruptcy Debtor’s principal had a number of communications with Law Firm about suing Bank. This included sending Law Firm relevant documents and other information. Law Firm did not wind up representing Debtor. After the bankruptcy filing Law Firm showed up representing Bank. At the time of the communications with Debtor Law Firm had never represented Bank. In this opinion the bankruptcy judge denied the motion. The court held that the information Debtor gave Law Firm was not “significantly harmful” (W. Va. Rule 1.18) to Debtor, primarily because it was information already possessed by Bank.

        Valizadeh v. Doe, 2017 WL 86031 (D.S.C. Jan. 10, 2017). Defamation suit. Defendant is represented by Law Firm. Early on, a lawyer for Plaintiff contacted a member of Law Firm about representing Plaintiff. There was a “telephone conference.” The Law Firm member responded with an Email, “I hope we get the opportunity to work together.” Law Firm then discovered the conflict, and they went no further. Plaintiff moved to disqualify Law Firm. In this opinion, applying S.C.’s version of Rule 1.18, the court denied the motion. The court held the foregoing exchange did not elevate Plaintiff to the status of “prospective client.” [Our note: The court noted a distinction between MR 1.18 and S.C.’s version. We are not so sure the distinction holds up — at least in this case.]
       
        Canada.  Power v. Zuro, 2009 CanLII 31982 (Ont. Super. Ct. June 22, 2009).  This is a family law case.  Power was the husband and Zuro the wife.  Lawyer appeared for Power, and, in this opinion, the court granted Zuro's motion to disqualify Lawyer.  Before Lawyer began representing Power Lawyer had appeared three times at the car dealership owned by Zuro's father.  During those visits the father had conversations with Lawyer about the case.  The court felt that those conversations were substantive enough to disqualify Lawyer from appearing on the other side.

        Canada. Consult with Another Lawyer. 1623242 Ontario Inc. v. Great Lakes Cooper Inc. (Super. Ct. Ontario 2014). The following appeared in the March 10, 2014, Law Times (online periodical devoted to “Ontario’s legal scene”). Lawyer A called Lawyer B for guidance in handling a foreclosure matter. Lawyer A did not reveal the identity of his clients, nor did he disclose to Lawyer B any of his clients’ confidences. When Lawyer B appeared adversely to Lawyer A’s clients, they moved to disqualify Lawyer B. The Superior Court judge denied the motion, saying, among other things, that Lawyer A’s clients never became Lawyer B’s clients.

        Canada. Appeal. Unclear on Confidences. Delay. Former- versus Current-Client. Sampley v. Sampley, 2015 BCCA 51 (CanLII) (B.C. Ct. App. Jan. 13, 2015). This is an appeal from a child custody holding. Prior to commencement of the action in the trial court, H had a conference with Lawyer about representation. H did not proceed with Lawyer. At the commencement of this appeal W hired lawyer. H moved to disqualify Lawyer. In these oral comments a judge of the appellate court denied the motion. First, the court said there was a conflict. However, it was not clear what confidences H had given Lawyer. Second, the court noted that confidences tend to become irrelevant on appeal. The court also noted the undue delay of H making the motion. Last, because this case did not involve a current-client conflict, the court exercised its “discretion” to deny the motion.

        Treatise.  Hazard, Hodes, & Jarvis § 13.9.

       Articles.  Susan Martyn, Accidental Clients, 33 Hofstra L. Rev. 913, 921-29 (2005); Bridget Hoy, Watch What You Say: Avoiding the Accidental Attorney-Client Relationship, 93 Ill. B.J. 22, 24-25 (2005); Kenneth D. Agran, The Treacherous Path to the Diamond-studded Tiara: Ethical Dilemmas in Legal Beauty Contests, Note, 9 Geo. J. Legal Ethics 1307 (1996), A.B.A. Standing Comm. on Ethics and Prof. Resp., Protection of Information Imparted by Prospective Client, Formal Op. 90-358 (Sept. 13, 1990); Debra Bassett Perschbacher & Rex R. Perschbacher, Enter at Your Own Risk: The Initial Consultation & Conflicts of Interest, 3 Geo. J. Legal Ethics 689 (1990); David Hricik, This Is not a Pipe, an online article at  http://www.hricik.com/eethics/1.6.html dealing with E-mails generated by law firm Web site readers that might otherwise conflict a firm out of a matter.  Hricik recommends something called a "clickwrap."  Read about it at his article.

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