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Someone who is not a law firm client ("Person A") initiates a contact with a lawyer in Law Firm ("Lawyer X") about possible representation. Person A has a dispute with Person B. Person A and Lawyer meet and discuss the dispute. At the conclusion of the meeting Person A decides not to retain Lawyer X. Person A, using another law firm, sues Person B. Person B asks Lawyer's partner ("Lawyer Y") to defend Person B. Lawyer Y, through a conflicts check, or otherwise, learns of Person A's earlier approach to Lawyer A. Can Lawyer Y defend Person B?

        Any consideration of this issue must begin with ABA Model Rule 1.18, and ABA Op. 492, issued in June 2020, which deals comprehensively with Rule 1.18. The opinion discusses who is a "prospective client," duties of confidentiality to the prospective client, what is "significantly harmful," and tips on avoiding disqualification.

        The ABA adopted Rule 1.18 in 2002. Before that rule appeared, cases and ethics opinions around the country constituted an unsatisfactory patchwork of answers to these issues. Almost every state has adopted some version of ABA Rule 1.18, bringing some clarity to duties to prospective clients.


        In the following 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. Abraham v. Leigh, 17 Civ. 5429 (KPF) (S.D.N.Y June 1, 2022); Pakistan Tehreek-E-Insaf USA LLC v. PTI USA, LLC, No. 20-CV-2392 (VEC) (S.D.N.Y. May 29, 2020). 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); Lopez v. Flores, 2017 WL 1018492 (Fla. App. March 15, 2017); 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 Marriage of James Vaughn & Amber Vaughn, No. 10-21-00167-CV (Tex. App. Waco Sept. 29, 2021) (Tex. Op. 691 (June 2021) controls in absence of Rule 1.18); 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).



        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.”


        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.

       
        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.

       
        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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