Oklahoma Bar Journal
Ethics & Professional Responsibility | Conflicts: Duties to Prospective Clients, Imputations, Etc.
By Richard Stevens
A lawyer may sometimes find themselves in a situation where one party to a case comes into their office to talk about hiring the lawyer for, let's say, a divorce. The lawyer quotes the potential client a fee, and the potential client leaves – never to return. In two or three months, the lawyer sees another potential client seeking a divorce. After speaking to this potential client, the lawyer realizes that this potential client is on the other side of the divorce proposed by the first potential client. Can the lawyer represent the second potential client in the proposed divorce? May any member of the lawyer’s firm represent the second potential client?
ORPC 1.8 provides guidance to the lawyer faced with this situation. This rule defines a prospective client and the lawyer's duties and obligations to the prospective client.
DUTIES TO A PROSPECTIVE CLIENT
A person who consults with a lawyer about the possibility of forming an attorney-client relationship with respect to a matter is a prospective client, according to ORPC 1.18(a). This rule ORPC 1.18(b) provides that, even when no attorney-client relationship is formed, a lawyer may not use or reveal information learned from a prospective client except as permitted under Rule 1.9.
Not all who communicate with a lawyer are prospective clients. Whether communications – both written and oral, both to and from the lawyer – constitute a consultation is a fact-specific determination. ORPC 1.18 Comment  indicates that an advertisement that invites or requests the submission of information about a potential representation may constitute a consultation if adequate warnings or cautions that limit the lawyer’s obligations are not included. In contrast, information provided in response to an advertisement that merely describes the lawyer’s education, experience, areas of practice and contact information would not ordinarily constitute a consultation. A person who communicates with a lawyer for the purpose of disqualifying the lawyer is not a prospective client.
ORPC 1.18(c) prohibits a lawyer from representing a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if that lawyer received information from the prospective client that could be significantly harmful to the prospective client in that matter. 1.18(c) also imputes that disqualification to any lawyer associated with the disqualified lawyer.
Subsection (d) of 1.18 provides a screening process to avoid the imputation of a disqualification. When a lawyer has received disqualifying information, representation is permissible if:
(1) both the affected client and the prospective client have given informed consent, confirmed in writing, or:
(2) the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; and
(i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and
(ii) written notice is promptly given to the prospective client.
Prospective clients receive some, but not all, of the protections afforded to current or former clients. ORPC 1.9 prohibits a representation adverse to a former client if there “is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client's position in the subsequent matter.” ORPC 1.9 Comment . A lawyer is not prohibited from representing a client with interests adverse to those of a prospective client unless the lawyer has actually received information that could be significantly harmful in the matter. Also, no screening procedure comparable to that found in ORPC 1.18(d) is available to former clients.
IMPUTATION OF CONFLICTS
The general rule of imputations of conflict of interest contained in ORPC 1.10 is that lawyers associated in a firm may not represent a client when any one of them would be prohibited from doing so under 1.7 or 1.9. When a lawyer has terminated an association with a firm, the firm is not prohibited from representing a person with interests materially adverse to a client represented by the formerly associated lawyer and not currently represented by the firm, unless the matter is the same or substantially related to the matter in which the formerly associated lawyer represented the client or any lawyer remaining with the firm has confidential information material to the matter.
Disqualifications under Rule 1.10 may be waived in writing by the affected client or clients on the conditions stated in Rule 1.7. Informed consent is defined in ORPC 1.0(e) and further clarified in 1.7 Comments  and . Informed consent may not cure all disqualifications. It may be impossible to obtain informed consent if the lawyer is unable to make the necessary disclosure(s).
The disqualification of lawyers associated in a firm with former or current government lawyers is governed by specific rules contained in ORPC 1.11.
ORPC 6.5 also contains a special conflict rule for short-term limited legal services provided by a nonprofit or court-annexed legal service program.
Lawyers should be aware of their duties to prospective clients. Lawyers should also be aware of who is a prospective client and what disqualifies the lawyer and associated lawyers from representation of parties adverse to the prospective client. Lawyers should know how those disqualifications may be avoided or cured.
Mr. Stevens is OBA ethics counsel. Have an ethics question? It’s a member benefit, and all inquiries are confidential. Contact him at email@example.com or 405-416-7055. Ethics information is also online at www.okbar.org/ec.
Originally published in the Oklahoma Bar Journal – OBJ 94 Vol 2 (February 2023)