ABA Offers Steps to Avoid Conflicts Tied to Prospective Clients

The American Bar Association has issued new guidance on the steps a lawyer can take to ensure an interview with a prospective client does not prevent their colleagues from potentially representing another party who is adverse to that prospective client.

The opinion, issued Wednesday by the ABA’s standing committee on ethics and professional responsibility, offers further clarity on a rule focused on the conflicts of interest that can arise when an attorney interviews with a potential client relating to a specific matter but is not retained by them. The rule notes that lawyers are barred from representing a party with an adverse claim to that prospective client if that client disclosed information that could be significantly harmful to them in that matter.

Those conflicts can extend to the lawyer’s colleagues, unless the firm takes procedural precautions and if the lawyer takes “reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client,” according to the rule.

Those “reasonable measures” include lawyers limiting the amount of information sought from prospective clients when determining whether to move forward with the engagement, the ABA said in its Wednesday opinion.

“Those who seek and obtain information without limitations fall short of that standard,” the ABA panel said. It added that one way lawyers can avoid crossing this rule’s red line is to tell potential clients only to provide info requested.

The ABA’s standing committee periodically issues ethics opinions as part of what it says is an effort to “guide lawyers, courts and the public in interpreting and applying” its model professional conduct rules. Many states use the ABA rules as a model for their own guidelines regulating attorney conduct.

Wednesday’s opinion comes as the theme of conflicts becomes even more present inside law firms, many of which are far bigger than they were even a decade ago. Many Big Law firms today utilize “advance conflict-of-interest waivers” that generally allow them to take on cases that might otherwise present a conflict for certain clients.