Initial Interview

INITIAL INTERVIEW - HEARING TOO MUCH

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        Prospective Client Smith makes an appointment to see Partner A at Law Firm. At their meeting, Smith tells Partner A about a claim she wants to bring against Jones. Partner A says he's interested, but he must run a conflicts check. After the first meeting, he does so and discovers that Jones is a current client of Law Firm on matters like the one described by Smith. Partner A reports back to Smith that he cannot take Smith's case. Smith finds another law firm and sues Jones. Jones comes to Partner B at Law Firm and asks Partner B to defend him. Partner B does a conflicts check, which comes up clean. Partner B opens a file. Partner A sees the new business report and discovers that Partner B has taken on the case against Smith. Partner A plans not to tell Partner B about his meeting with Smith and figures that will make everything alright. Will it? Or, must Partner A now go to Partner B and Law Firm's Executive Committee and say that Law Firm must withdraw from representing Jones against Smith?

        The ABA Approach. Some would say that the answer is easy: Law Firm must get out. They would cite ABA Op. 90-358 (1990), a very comprehensive discussion of hearing too much at the initial interview. If Partner A learned anything at all from Smith at the initial interview, the ABA Committee would impute that information to everyone in Law Firm. The Committee would disqualify Law Firm in the above scenario.

        The Restatement and Model Rule Approach. Others would say that Law Firm ought to be able to salvage the situation and stay in the case by creating a screen around Partner A. Those of this view would cite Restatement § 15(2)(a), which provides for precisely that. In February 2002 the ABA House of Delegates approved the Ethics 2000 proposal to add new Rule 1.18. This rule first establishes that the lawyer has a duty of confidentiality to "prospective new clients," even though they never become clients. The rule goes on to say that the interviewing lawyer can be screened, so that others in her firm can be adverse to the prospective new client. A screen prevented disqualification in such a situation in Halligan v. Blue Cross & Blue Shield of North Dakota, 1994 U.S. Dist. LEXIS 12180 (D.N.D. 1994). In N.J. Op. 695 (March 29, 2004), the committee said the same screening provision in New Jersey's new Rule 1.18 would work. And, here is a case applying that rule and approving a screen, Ellis v. Ethicon, Inc., 2005 U.S. Dist. LEXIS 25705 (D.N.J. Oct. 27, 2005). In Modanlo v. Ahan, 342 B.R. 230 (D. Md. 2006), construing Maryland's version of Model Rule 1.18, the court expressed skepticism whether one partner heard anything meaningful during initial interview, and in denying a motion to disqualify the firm, the court ordered that partner screened. In Friskit, Inc. v. RealNetworks, Inc., 2007 U.S. Dist. LEXIS 51770 (N.D. Cal. July 5, 2007), the court recognized a screen but did not mention Model Rule 1.18 or the Restatement.

        The courts' analyses of the initial interview situation have been inconsistent and not wholly satisfying. Some courts say that the key is whether a lawyer-client relationship was established at the initial meeting. For example, assume in the above example that such a relationship did arise between Partner A and Smith. Then, when Partner A told Smith about the conflict, Smith became a "former client." Under Model Rule 1.9(a), Law Firm could not represent Jones against former client, Smith, because Smith v. Jones is "substantially related" to the meeting between Partner A and Smith. Other courts will look at how much the prospective client told the lawyer in deciding whether a lawyer-client relationship was established. Yet other courts ignore the attorney-client relationship and simply say that prospective clients' confidences should be protected. That is the position of ABA Op. 90-358 (1990), and of Restatement § 15.

        In the following two paragraphs the cases are grouped by whether or not the law firm was disqualified. Notwithstanding the inconsistent rationales, the results appear consistent. If it appears the prospective client will, or reasonably could, be harmed by what was said at the initial meeting, the court will probably disqualify the law firm. In those cases where disqualification was denied, the court could cite some circumstance that suggested the client would not be harmed (seven-minute meeting; meeting held eight years ago; lawyer does not remember meeting; etc.)

        Cases in Which Firm Was Disqualified. Laryngeal Mask Co. Ltd. v. Ambu A/S, 2008 U.S. Dist. LEXIS 15320 (S.D. Cal. Feb. 25, 2008) (patent case); Fierro v. Gallucci, 2007 U.S. Dist. LEXIS 89296 (E.D.N.Y. Dec. 4, 2007) (even though lawyer simply could not remember phone calls); Hamrick v. Union Township, 79 F. Supp. 2d 871 (S.D. Ohio 1999); Gilmore v. Goedecke Co., 954 F. Supp. 187 (E.D. Mo. 1996); Griffen v. East Prairie School District, 945 F. Supp. 1251 (E.D. Mo. 1996); Green v. Montgomery County, 784 F. Supp. 841 (M.D. Ala. 1992); Bridge Products Inc. v. Quantum Chem. Corp., 1990 U.S. Dist. LEXIS 5019 (N.D. Ill. 1990); First American Carriers, Inc. v. Kroger Co., 787 S.W.2d 669 (Ark. 1990); ); People ex rel Dept. of Corporations v. Speedee Oil Change Systems, Inc., 980 P.2d 371 (Cal. 1999); Clark v. Ferris, 1992 Conn. Super. LEXIS 3400 (Conn. Super. 1992) (court ruled only that movant was entitled to hearing on motion to disqualify); Metcalf v. Metcalf, 785 So. 2d 747 (Fla. App. 2001); Garner v. Somberg, 672 So. 2d 852 (Fla. App. 1996); Lovell v. Winchester, 941 S.W.2d 466 (Ky. 1997); Bays v. Theran, 639 N.E.2d 720 (Mass. 1994); Cox v. Ryan, 2006 Me. Super. LEXIS 240 (Me. Super. Nov. 30, 2006); Herbert v. Haytaian, 678 A.2d 1183 (N.J. Super. 1996); and Desbiens v. Ford Motor Co., 439 N.Y.S.2d 452 (N.Y. App. 1981); Chemcraft Holdings Corp. v. Shayban, 2006 NCBC LEXIS 15 (N.C. Super. Ct. Oct. 5, 2006) (lawyer sat on E-mail from eventual opponent too long); The Attic Tent, Inc. v. Copeland, 2006 U.S. Dist. LEXIS 57601 (W.D.N.C. Aug. 14, 2006) (patent infringement case; lawyer had earlier been interviewed by other side, and other sides poor financial condition was discussed); In re Gerry, 173 S.W.3d 901 (Tex. App. 2005) (42-minute interview); Wolfond v. Wolfond, 2007 SKQB 425 (CanLII) (Sask. Q.B. Nov. 19, 2007) (lawyer could not recall conversation thirteen years earlier; still disqualified).

        Cases in Which Firm Was not Disqualified. Leathem v. City of LaPorte, 2008 U.S. Dist. LEXIS 32820 (N.D. Ind. April 17, 2008) (court, ignoring Indiana Rule 1.18, said no lawyer-client relationship formed and that all the facts had come out in the litigation); ADP, Inc. v. PMJ Enterprises, LLC, 2007 U.S. Dist. LEXIS 17808 (D.N.J. March 14, 2007); Knigge v. Corvese, 2001 U.S. Dist. LEXIS 10254 (S.D.N.Y. 2001) (series of unanswered voice mails from prospective client only communication between prospective client and lawyer); Polyagro Plastics, Inc. v. Cincinnati Milacron, Inc., 903 F. Supp. 253 (D.P.R. 1995) (seven-minute conversation; essential facts wound up in complaint); Poly Software Int'l. Inc. v. Su, 880 F. Supp. 1487 (D. Utah 1995) (court impressed by fact that movant had shopped around for a lawyer, creating the possibility that qualified intellectual property lawyers in the region could be "used up" [our words]); Davis v. York Int'l. Corp., 1993 U.S. Dist. LEXIS 7137 (D. Md. 1993) (answering questions in CLE class did not create lawyer-client relationship); Bennett Silvershein Assoc. v. Furman, 776 F. Supp. 800 (S.D.N.Y. 1991) (one hour meeting ten years prior); B.F. Goodrich Co. v. Formosa Plastics Corp., 638 F. Supp. 1050 (S.D. Tex. 1986); Hughes v. Paine, Webber, Jackson & Curtis Inc., 565 F. Supp. 663 (N.D. Ill. 1983); INA Underwriters Ins. Co. v. Rubin, 635 F. Supp. 1 (E.D. Pa. 1983); Zimmerman v. Zimmerman, 20 Cal. Rptr. 2d 132 (Cal. App. 1993); Camuto v. Camuto, 1999 Conn. Super LEXIS 2724 (Conn. Super. 1999) (information shared three and half years before was "generic"); Derrickson v. Derrickson, 541 A.2d 149 (D.C. App. 1988) (short conversation eight years prior); In re Duvall, 67 S.W.2d 736 (Mo. App. 2002) (notes revealed short meeting with no exchange of confidences); Pro-Hand Services Trust v. Monthei, 49 P.3d (Mont. 2002) (two telephone conversations with the lawyer's secretary and no showing of shared confidences); Unger v. Unger, 790 N.Y.S.2d 176 (N.Y. App. 2005) ("one innocuous exchange of pleasantries in a restaurant"); Potters v. 71^st Street Lexington Corp., 779 N.Y.S.2d 473 (N.Y. App. 2004) (four years prior; "poured [her] heart out," but lawyer did not remember; he's not handling this case; his partners are, but they have not discussed); Cummin v. Cummin, 695 N.Y.S.2d 346 (N.Y. App. 1999) (first meeting six years prior, no recollection of meeting in firm, and screen implemented); Porter v. Beaulieu, 736 N.Y.S.2d 153 (N.Y. App. 2002) (ten-minute conversation in lawyer's waiting room); In the Matter of the Adoption of Baby Boy C, 784 N.Y.S.2d 334 (N.Y. Misc. 2004) (information conveyed became public record); and State ex rel. DeFrances v. Bedell, 191 W. Va. 513 (W. Va. 1994) (no lawyer-client relationship formed, and no confidences exchanged).

        Va. Op. No 1832 (May 10, 2007). Former Wife (“Wife”) called Lawyer’s secretary to make an appointment with Lawyer. Wife claimed that she told the secretary all about her case. Wife never spoke with Lawyer. Lawyer wound up representing Former Husband (“Husband“) against Wife, and Wife objected. In this opinion the Committee held that Lawyer can represent Husband provided Lawyer’s erects a screen between Lawyer and Lawyer’s secretary, and the secretary does not tell Lawyer about Wife‘s comments. The Committee cited Va. Op. No. 1800 (2004), which held that a screen would work for a migratory secretary.

        Maturi v. McLaughlin Research Corp., 2001 U.S. Dist. LEXIS 21893 (D.N.H. December 31, 2001). No ruling, but court discussed factors it would consider after evidentiary hearing. The court said that if an attorney-client relationship was express, there would be a presumption that confidences were shared. If the relationship was implied, the moving party would have to show that confidences were shared.

        In Clark Capital Mgmt. Group v. Annuity Investors Life Ins. Co, 149 F. Supp. 2d 193 (E.D. Pa. 2001), the defendant's lawyer contacted Biemer, a partner at Dilworth Paxson about becoming local counsel for the defendant. They had several telephone conversations about the facts and strategy. Dilworth was not hired. Friedman, another partner at Dilworth, later appeared as counsel for the plaintiff. Defendant moved to disqualify Dilworth. The court denied the motion. It found that because the defendant did not actually hire Dilworth, it was not a "former client." The court noted in passing that if defendant had been a former client, this was the "same" matter in which Dilworth would have represented the defendant, and Dilworth would have been disqualified. Nevertheless, the court was concerned that Biemer might have received confidential information from the defendant during the initial telephone conversations. The court ruled that Dilworth could stay in the case on the condition that it set up a screen between Biemer and the rest of the firm. The court did not mention the Restatement § 15(2)(a), which would have provided the same result. For a similar result, see Metamorfyx, L.L.C. v. Belkin Components, 2002 U.S. Dist. 10927 (N.D. Ill. June 18, 2002).

        Med-Trans Corp., Inc. v. City of California City, 156 Cal. App. 4th 655 (Cal. App. 2007). In this case Corp. A is suing City. During the pendency of this case, Corp. A’s lawyer (“Lawyer”) met with a high ranking official of City (“Official”) about Lawyer’s representation of Corp. B in a lawsuit against County (not this case). Both suits involved the transportation of patients by Corps. A & B. During the meeting there was a discussion of the City’s possibly joining Corp. B in the suit against County. Implied in that discussion was that Lawyer might represent City in that case. Because of that meeting City moved to disqualify Lawyer in this case. The trial court granted the motion. In this opinion the appellate court reversed. The court held that there was no showing that any confidences were shared in the meeting. As to Lawyer’s possibly representing City in the case against County, the appellate court held that that possibility was simply too remote to apply the rule relating to potential new clients. In that connection the court noted that Lawyer, not City, called the meeting.

        Two cases that did not involve a motion to disqualify shed additional light on the "hearing-too-much" analysis. Flatt v. Superior Court, 885 P.2d 950 (Cal. 1994) was a malpractice case. The lawyer involved met with a prospective client and discovered that the eventual opponent was already a client of the firm on other matters. She turned down the representation. The turned-down party then allowed the Statute of Limitations to expire. She sued the lawyer for failing to warn her about the Statute. The California Supreme Court held that the lawyer had no duty to be disloyal to the firm's existing client and alert the turned-down party about the Statute of Limitations. People v. Gionis, 892 P.2d 1199 (Cal. 1995), was a criminal case. The issue was whether a lawyer could testify at the trial about what the defendant had told him. As soon as the defendant and the lawyer met the first time, the lawyer said he would not represent the defendant. The defendant then told the lawyer about the case. The court held that it was not error to allow the prosecution to call the lawyer and ask about the conversation with the defendant.

        Other Cases Analyzing Whether Early Contacts Created Lawyer-Client Relationship. Morris v. Margulis, 718 N.E.2d 709 (Ill. App. 1999), leave to appeal granted, 724 N.E.2d 1269 (Ill. 2000) ("might have"); Callas v. Pappas, 907 F. Supp. 1257 (E.D. Wis. 1995) (discussion and review of documents created relationship); Richardson v. Griffiths, 560 N.W.2d (Neb. 1997) (phone discussion and no bill sent, but court found relationship); Capacchione v. Charlotte-Mecklenburg Bd. of Ed., 9 F. Supp. 2d 572 (W.D.N.C. 1998) (school board presentation did not create relationship).

        Ethics Opinions. The following opinions are basically similar to ABA Op. 90-358 (1990): Del. Op. 1990-1 (1990); R.I. Op. 91-72 (1991); and Vt. Op. 96-90 (1996). L.A. Op. 506 (2001) says that a lawyer who has interviewed a prospective new client has a duty of confidentiality to that person even though a lawyer-client relationship did not develop. N.Y. City Op. 2006-2 (April 2006) and Utah Op. 05-04 (September 2005) discuss the lawyer’s obligations upon “hearing too much,” including the screening provisions of new Model Rule 1.18.

        "Set-up Will Not Work. NEW (posted July 31, 2004) Va. Op. 1794 (June 30, 2004). Husband and Wife were planning a divorce. Husband interviewed all the divorce lawyers in their community on the pretense that he wanted to hire them. In each case he divulged confidences. Later Wife tried to hire one of the interviewed lawyers. The committee held that Wife’s lawyer could handle the matter, because Husband could not have had a “reasonable expectation of privacy,” given the motive for the earlier interview.

        When an unsolicited E-mail does not prevent lawyer from representing other side. San Diego Op. 2006-1 (undated). Person A sends E-mail to Lawyer regarding possible representation. E-mail contains information adverse to Person A (she had a couple of drinks before the accident). Lawyer did not have a Web site, but her E-mail address was in a publicly available data base of the state bar. Before reading the E-mail Lawyer had a conference with person B about being adverse to A. Lawyer later reads A’s E-mail. Can Lawyer represent B against A.? “Yes,” according to this opinion. It relies in part on Ariz. Op. 02-04 and ABCNY Op 2001-1, which reached similar conclusions. In Mass. Op. 2007-1 (May 2007, the Committee said that if the E-mail address appears on the firm Web site, and there is no warning about not sharing confidences, the receiving lawyer and the entire law firm can be disqualified. In Iowa Op. 07-02 (Aug. 8, 2007), the Committee opined that where, from the lawyer’s marketing materials, a reasonable person would believe the lawyer is available and would believe that the lawyer expected to receive the information, then the lawyer cannot represent the other side. Where, however, all the lawyer does is publish his or her telephone number, no reasonable person would believe that he or she may send information to the lawyer in confidence.

        Treatise. Hazard & Hodes § 13.9.

        Articles. Susan Martyn, Accidental Clients, 33 Hofstra L. Rev. 913, 921-29 (2005); Bridget Hoy, Watch What You Say: Avoiding the Accidental Attorney-Client Relationship, 93 Ill. B.J. 22, 24-25 (2005); Kenneth D. Agran, The Treacherous Path to the Diamond-studded Tiara: Ethical Dilemmas in Legal Beauty Contests, Note, 9 Geo. J. Legal Ethics 1307 (1996), A.B.A. Standing Comm. on Ethics and Prof. Resp., Protection of Information Imparted by Prospective Client, Formal Op. 90-358 (Sept. 13, 1990); Debra Bassett Perschbacher & Rex R. Perschbacher, Enter at Your Own Risk: The Initial Consultation & Conflicts of Interest, 3 Geo. J. Legal Ethics 689 (1990); David Hricik, This Is not a Pipe, an online article at http://www.hricik.com/eethics/1.6.html dealing with E-mails generated by law firm Web site readers that might otherwise conflict a firm out of a matter. Hricik recommends something called a "clickwrap." Read about it at his article.

        Prevention. It should be obvious from this discussion that many of these situations can be avoided. Take the scenario at the top of the page. When Smith called Partner A, Partner A should have immediately asked who the adverse parties might be. Smith would have mentioned Jones. Partner A would have run a conflicts check, discovered that Jones was already a client of Law Firm, and then told Smith he could not proceed.

        Other prevention techniques:

In a "beauty contest" situation, get the prospective client to agree in writing that it will not disclose confidences in the interview and that nothing that takes place in the interview will provide the basis for a disqualification if the firm is turned down and has the opportunity to represent another party in the matter.

Where the lawyer in question finds out that there will be a conflict, put a screen around that lawyer. While a screen is not a guarantee that the firm will not be disqualified, we believe it will work in some jurisdictions.

Absent any other solution, the prospective client may agree before or after the interview to sign a conflict waiver.

        Some situations can be quite touchy, and for which there might be no good answer. For example, Company A, a notorious acquisition predator, calls up Lawyer about helping on a transaction. Lawyer asks only who the "other parties" might be, purposely avoiding asking the nature of the transaction. Company A mentions only Company B. Lawyer knows his firm represents Company B and has himself been putting off drafting amendments to Company B's bylaws that would make an uninvited acquisition more difficult. He quickly turns down Company A. Lawyer does not tell Company B about the call from Company A, but grabs the bylaws file and feverishly starts drafting. Is that the correct approach? Probably not, according to ABA Op. 90-358 (1990), which does a good job of discussing a variety of these situations. One might not always agree with the opinion (on screening, for example), but anyone with a serious initial interview situation ought to read it.

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