Conflict Check for Would-be Clients?

Attorneys put food on the table by converting would-be clients into actual clients. However, the astute attorney knows which engagements are not worth pursuing and when to decline representation. The careful attorney knows that even the initial client interview will trigger ethical obligations. To be clear, an attorney’s ethical responsibilities kick even before there is an attorney-client relationship. While most attorneys probably are aware of this general principle, it’s less likely that most engage in best practices during the client intake process.

The New York State Bar recently issued an ethics opinion that attempts to resolve issues involving prospective clients.  The ethics committee considered an ethics inquiry from a small firm with three named partners.  Two partners in the firm had a long-standing relationship with a client, whom they represented in a variety of matters.  The firm obtained a favorable outcome for the client and continued to represent him.  The third partner had no involvement or knowledge of the proceeding.

Six months later, the client’s adult child sought a meeting with the third attorney to discuss possible representation in connection with an unrelated matter after seeing an advertisement for the attorney’s services.  The attorney did not check for conflicts before discussing the substance of the child’s concerns, and the child did not mention until the end of the consultation that the law firm had represented his father in the previous family matter.  The attorney then consulted with his partners regarding the nature of the matter, who confirmed that they represented the father and decided to decline the representation of the child.

Based on these facts, the ethics committee considered whether the law firm was required to disclose to the father that his child had sought to retain the law firm in connection with an unrelated matter and whether the consultation precluded the firm from continuing to represent the father.

In answering these questions, the committee first noted that, unless the child was acting in bad faith when consulting the firm, he became a prospective client at the time of the consultation and is therefore entitled to protection of confidential information.  To the extent that information concerning the child’s consultation is not confidential, the committee concluded that the law firm may share that information with the father.  As to whether the firm may continue to represent the father, the committee determined that the inquiry is whether there is a substantial risk that confidential information obtained from the child’s consultation would materially advance the position of the father with regard to the continuing representation.  If so, the firm would not be able to continue the representation.

When professionals meet with prospective clients, they often become privy to confidential information.  Attorneys, like all professionals, must take steps to minimize the potential impact of this information during the intake portion of the interview.  This may include running a conflict check prior to consulting with would-be clients to ensure that the meeting does not raise any ethics issues with current clients.  Failure to identify potential issues early could lead to a conflict of interest that precludes representation of current or future clients.

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