The Oklahoma Bar Journal February 2023

E thics & P rofessional R esponsibility

Conflicts: Duties to Prospective Clients, Imputations, Etc. By Richard Stevens

A LAWYERMAY 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 rep resent 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 relation ship with respect to a matter is a prospective client, according to ORPC 1.18(a). 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.

contact information would not ordinarily constitute a consulta tion. 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 disquali fication to any lawyer associated with the disqualified lawyer.

Not all who communicate with a lawyer are prospective clients. Whether communications – both written and oral, both to and from the lawyer – constitute a consulta tion is a fact-specific determination. ORPC 1.18 Comment [2] indicates that an advertisement that invites or requests the submission of infor mation about a potential represen tation 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

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.

46 | FEBRUARY 2023

THE OKLAHOMA BAR JOURNAL