Samuel Stretton ()
A lawyer’s firm can sometimes represent
an opposing party of a potential client.
A client came to my office on a domestic case and we met for an hour. The client then chose to hire someone else. Can my firm represent the spouse of that client?
The specific conflict-of-interest rule at issue is Rule of Professional Conduct 1.18, titled “Duties to Prospective Clients.” This rule is relatively new. It was adopted to some extent because of pressure from the family and domestic lawyers who were faced with situations where a client would lawyer-shop for the purpose of disqualifying all competent domestic lawyers in a particular town or area. As a result, under Rule 1.18, a prospective client can still cause disqualification of a lawyer or the lawyer’s firm under certain circumstances. But Rule 1.18 has loosened the prohibition.
Using the general conflict-of-interest Rule 1.7, normally there would be a disqualification. But Rule 1.18 now has certain exceptions. Under Rule 1.18(d), there can be a waiver of the conflict if both parties consent, even though it would be a direct conflict. The rule is very clear under Rule 1.18(b) that a lawyer can’t use confidential information or information that the lawyer learned that could be harmful to the prospective client. Rule 1.18(c) clearly states a lawyer cannot represent a client with interest materially adverse to the prospective client if the lawyer learned information from the prospective client that would be significantly harmful to that person. Rule 1.18(c) notes that if a lawyer is disqualified, his or her firm would be disqualified.
But there is a major exception under Rule 1.18(d), under which there are two ways a firm can continue to represent the client. If there is consent to representation, then the lawyer and firm can continue to represent the client. But when there is no consent, if the disqualified lawyer took reasonable measures to avoid receiving more information than was necessary and the disqualified lawyer is screened from any participation, receives no apportionment of the fee and written notice is properly given to the prospective client, then members of the firm can still represent the new client against the former prospective client. If those three conditions are met, although the lawyer who met with the prospective client cannot represent the spouse, members of that lawyer’s firm can.
Comment 8 to Rule 1.18 notes that “notice, including a description of the screened lawyer’s prior representation and of the screening procedures employed, generally should be given as soon as practicable after the need for screening becomes apparent.”
This comment is important because one can’t wait forever. If there is a need for screening, it must be implemented timely and then there must be a timely notice to the opposing party.
Also of importance is the fact that when a prospective client communicates with a lawyer, that would not bar the lawyer’s representation of the opposing party if the contact is done unilaterally and information given unilaterally.
Comment 2 to Rule 1.18 states: “In contrast, a consultation does not occur if a person provides information to a lawyer, such as in an unsolicited email or other communication, in response to advertising that merely describes the lawyer’s education, experience, areas of practice, and contact information or provides legal information of general interest. Such a person communicates information unilaterally to a lawyer without any reasonable expectation that the attorney-client relationship will be established and is thus not a prospective client.”
That, of course, is a major protection to prevent people from unilaterally spilling their guts to preclude representation by anyone else.
Finally, under Comment 2 to Rule 1.18, the following is noted: “A person who participates in that initial consultation, or communicates information, with the intent to disqualify a lawyer from representing a client with materially adverse interest is not entitled to the protections of Paragraphs b or c of this rule. A person’s intent to disqualify may be inferred from the circumstances.”
That comment is very significant. If a prospective client is now seeking to disqualify a lawyer or his or her firm and if the lawyer is able to demonstrate the only purpose for the meeting with the prospective client was the prospective client’s desire to disqualify the lawyer from representing the other party, then Rule 1.18 doesn’t apply and a lawyer can proceed with representing the other client. Of course, that could be difficult to prove, but if it can be proven then the rules’ protections are not available to the prospective client.
To answer the question then, under the facts as indicated, if the screening and notice provisions as noted above under Rule 1.18(d) were implicated, then the lawyer’s partners and associates could represent the adverse client. But if they were not, then the firm would be disqualified under Rule 1.18(c).
Judges making appointments must avoid favoritism.
Can a judicial officer appoint a lawyer to a position if the lawyer has made contributions to the judge’s campaign?
The question is an interesting one, but it is to some extent answered by the new Rule 2.13 of Judicial Conduct, titled “Administrative Appointments.” That rule requires appointments and hiring by a judge to be done impartially and on the basis of merit. It also requires that there be no nepotism involved in the appointment, nor favoritism or unnecessary appointments.
Nepotism is defined in Comment 2 to the rule as the appointment of a judge’s spouse or domestic partner or any relative within the third degree of relationship of either the judge or the judge’s spouse or domestic partner.
The rule makes sense, as in the past there have been concerns about appointments of relatives to major judicial boards or committees involved with law change and reform. Now that practice will end, at least directly. Presumably it could still go on indirectly if judges do favors for each other by appointing one judge’s spouse or domestic partner. Presumably that wouldn’t happen, because it would be so clear it might be seen as a violation of the purpose of the rule. Hopefully that issue will never come up because judges will realize the importance of avoiding nepotism directly or indirectly. On the other hand, there is always some concern because there are very capable people who happen to be married to judges and their services should not be precluded if needed because of the relationship.
A major change is written into Rule 2.13(b). That rule prohibits a judge from appointing a lawyer or a lawyer’s spouse or domestic partner if they have been a major contributor or donor within two years prior to the judge’s election campaign. Therefore, the days of hiring a law clerk in reward for substantial political contributions are gone, at least for the two years after the election.
The question becomes: Can a Supreme Court justice appoint a contributor to a committee or board? The answer is they probably can, but there are three conditions.
First, the position has to be “substantially uncompensated.” In other words, the position does not have a salary attached to it. Comment 3 to the rule notes that a lawyer so appointed can still get reimbursement for out-of-pocket expenses without violating this rule. Second, the lawyer selected has been selected in rotation from a list of qualified and available lawyers. This list has to be compiled without regard to who made political contributions. In other words, the appointment process at least has to go through some semblance of a fair process and not just reward contributors. There has to be a list of competent people and then a lawyer has to be chosen from the list. The third condition is that the judge or another presiding judge must affirmatively find that no other lawyer is willing and competent and able to accept the position. That language is troublesome. Normally there are other lawyers who are willing to accept positions and are competent to do so on boards.
If those three conditions are met, then the contributor to the judge’s campaign can be appointed. If they are not, then the judge will have to wait two years before such appointments can be made.
Does this prohibition apply to contributions from a lawyer’s law firm? The rule points to situations where the lawyer or the lawyer’s spouse or domestic partner has contributed as a major donor within the prior two years to the judge’s election campaign, but it does not speak of contributions from the law firm.
The way the rule is written, it appears to leave a major hole. Therefore, if the lawyer doesn’t make the contribution, but the law firm does, the lawyer appears to be eligible for an appointment even though his or her firm was a major donor. The rule language is unclear. Hopefully, the spirit of the rule will prevail and not just a technical interpretation of the language.
The key is for all judges to use their appointment powers wisely and not use them to benefit friends or contributors. That’s not to say a judge can’t get the benefit of other people. Clearly, a judge is entitled to appoint and consult with people he or she trusts and he or she has perhaps worked with over the years either as a judge or as a lawyer. But the appearance of impropriety has caused the rules to be written in this manner and every judge should carefully remember Rule 2.13 in making administrative appointments.
Finally, the way the rule is written may cause some problems in a smaller county where the lawyer pool is limited and everyone knows everyone and every lawyer contributes in judicial races. But that issue will have to be dealt with in the future. \
Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pa. 19381.