These summaries were prepared by McGuireWoods LLP lawyer Thomas E. Spahn. They are based on the letter opinions issued by the Virginia State Bar. Any editorial comments reflect Mr. Spahn's current personal views, and not the opinions of the Virginia State Bar, McGuireWoods or its clients. 
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22-Interviews with Prospective Clients

(Under ABA Rule 1.18(c), a lawyer who has consulted with a prospective client can avoid her individual disqualification if she did not obtain any “significantly harmful” information from the prospective client (a standard addressed in ABA LEO 492 (6/9/20)). If the consulting lawyer faces individual disqualification because she has obtained such “significantly harmful” information, she can avoid her individual disqualification from being imputed to her whole law firm if she is screened, receives no part of the fee and provides written notice to the prospective client that the firm will represent the adversary. Notably, she must also have taken “reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client.” The consulting lawyer clearly must obtain information to check for conflicts (such as “the identity of other relevant parties, witnesses, and counsel”). It is also “necessary” for the lawyer to determine whether she can handle the matter competently, whether the client might be seeking to use the lawyer’s service to commit wrongdoing, whether the client has a meritorious claim or defense, etc. The consulting lawyer must also make a “business decision” about whether to represent the prospective client – focusing on time involved, likely fees, her interest in the matter, compliance with the firm’s “internal policy” about representing certain types of clients, etc. In contrast, such “necessary information” normally would not include facts about the representation that “might enable the lawyer to impress the prospective client” in an effort to land the business. Lawyers might have a business reason to “substantially investigate” a prospective client’s matter before accepting the representation, but it might not be “reasonably necessary” to do so – so she should recognize that a “free-flowing conversation” might result in an imputed disqualification, and consider “stopping [the] inquiry” after determining that her firm would not take the representation. The consulting lawyer might also be wise to decrease the likelihood of an imputed disqualification by “warn[ing] the prospective client that the lawyer has not yet agreed to take on the matter and that information should be limited only to what is necessary for the lawyer and client to determine whether to move forward with an engagement.”)

Copyright 2000, Thomas E. Spahn