Communications With Prospective Clients Carry Disqualification Risks
Attorneys need to exercise some degree of caution in initial client consultations, or face the risk of a disqualification motion if the attorney is engaged on behalf of another party in a related matter.
June 23, 2023 at 12:53 PM
9 minute read
AnalysisIn almost every state, attorneys have ethical duties to prospective clients who consult with them about a potential case, even if no attorney-client relationship ever ensues. New York Rule of Professional Conduct 1.18 forbids attorneys from "representing a client with interests materially adverse to those of a prospective client in the same or a substantially related matter," but only if "the lawyer received information from the prospective client that could be significantly harmful to that person in the matter." See N.Y. R. Prof'l Conduct 1.18(c). As a result, attorneys need to exercise some degree of caution in initial client consultations, or face the risk of a disqualification motion if the attorney is engaged on behalf of another party in a related matter.
Freedman v. Rakosi, 2023 WL 3687783 (S.D.N.Y. May 27, 2023), is a case in point. There, Southern District Magistrate Judge Stewart D. Aaron recently disqualified the defendant's counsel after deciding a novel issue under Rule 1.18: whether the duty to prospective clients applies where the prospective client never personally communicated with the attorney, but rather an intermediary acted on behalf of the prospective client to secure legal representation. Judge Aaron ultimately concluded that the plaintiffs qualified as prospective clients under the rule, even though their agent, an out-of-state attorney, was the one to contact and have the communication regarding potential representation. Moreover, because the attorney with whom the out-of-state attorney communicated was not walled off from the matter when the defendants later sought representation from his firm, the attorney's entire firm was precluded from representing the defendants.
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