It is not uncommon for a lawyer to run into this challenging dilemma — the lawyer briefly consults with a prospective client, the lawyer is never retained by that person, and, later on, an opposing party seeks the lawyer’s representation in the same or a similar legal matter. Although this scenario involving potential conflicts of interest is particularly common in domestic relations matters, it can arise in any type of case.
In 2018, Michigan Rule of Professional Conduct (MRPC) 1.18 was promulgated to assist in answering the fundamental questions required to complete a conflicts of interest analysis: When does the attorney-client relationship form? Can a brief consultation conflict a lawyer out of representing an opposing party in the same or a similar legal matter? What about a more extensive consultation? When does a client truly become a client? What duties does a lawyer owe to prospective clients that never retained their services? This article aims to address these critical conflicts of interest questions.
EXTENSIVE CONSULTATION = CONFLICT
Prior to the enactment of MRPC 1.18, the Professional Ethics Committee, in ethics opinion RI-48,1 addressed a situation in which a lawyer conducted a lengthy consultation with a client regarding potential representation in a divorce. The syllabus states that “[a] lawyer may not represent in a divorce action the husband of a woman who had previously consulted the lawyer regarding a divorce.”2 Although the woman who originally consulted with the lawyer did not retain the lawyer, the consultation involved detailed discussions about the details of her case and her relationship. Ten months later, the woman’s husband sought representation from another lawyer within the same firm in the same divorce proceedings. The Professional Ethics Committee concluded that the original lawyer’s representing the husband would be improper due to the substantial risk that confidential information from the initial consultation could be used to the disadvantage of the wife (i.e., the prospective client) and that that conflict imputed to the other lawyers at the firm.
MRPC 1.9 is particularly relevant in situations involving prospective client conflicts. It uses the terms “client” and “former client” when defining situations that constitute a conflict of interest. In particular, 1.9(a) states that:
(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client consents after consultation.
Further, 1.9(c) instructs that:
(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:
- Use information relating to the representation to the disadvantage of the former client except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client, or when the information has become generally known; or
- Reveal information relating to the representation except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client.
Thus, determining when someone becomes a client is of utmost importance. In RI-48, discussed earlier, the Professional Ethics Committee gave the following guidance to Michigan lawyers:
The three criteria to be examined in applying MPRC 1.9 are: (1) is the new representation materially adverse to the interest of a former client, (2) is the new representation the ‘‘same or substantially related’’ to the representation of the former client, and (3) could confidential information gained in the former representation be used to the disadvantage of the former client?3
The Professional Ethics Committee applied that standard to the facts at issue in RI-48 to determine that because the initial consultation was extensive, it was possible that confidential information learned by the lawyer during the consultation could be used to the disadvantage of the former client. Thus, the lawyer and the other attorneys in his firm4 were all disqualified from the representation.
BRIEF CONSULATION IN COMPLIANCE WITH MRPC 1.18 PROBABLY ≠ CONFLICT
When the initial consultation is brief, the same disqualification concerns may not necessarily apply. In RI-154,5 the Professional Ethics Committee stated that an attorney-client relationship is not established when a prospective client engages in only a brief consultation and does not disclose any confidential or sensitive information. In such cases, the law firm may still be able to represent the opposing party in litigation as no formal legal relationship has been created. This was later codified in MRPC 1.18.
According to the commentary on Michigan Rule of Professional Conduct 1.0, “[m]ost of the duties flowing from the client-lawyer relationship attach only after the client has requested the lawyer to render legal services and the lawyer has agreed to do so.” However, there is no definitive test for determining exactly when an attorney-client relationship begins. The formation of such a relationship often hinges on the specific facts of the interaction, including the nature and depth of the consultation, whether legal advice was provided, and whether the prospective client reasonably believed that an attorney-client relationship had been formed.
The Committee further explains in RI-154 that “[w]hether a client-lawyer relationship exists for any specific purpose can depend on the circumstances and may be a question of fact.”6 Some individuals even attempt to exploit this ambiguity by consulting with a lawyer — not for genuine legal advice but strategically, to create a conflict that would prevent the lawyer from representing the opposing party. Some individuals may be seeking to create a conflict of interest. In some cases, a person may consult with a lawyer, not with the genuine intent of seeking legal advice but rather as a strategic maneuver to prevent that lawyer or firm from representing an opposing party in future litigation. This tactic, sometimes referred to as “conflict shopping,” raises ethical concerns and underscores the importance of assessing the intent and substance of initial consultations. Law firms must remain vigilant in distinguishing between genuine inquiries and potential attempts to manipulate ethical rules for strategic advantage.
RULE 1.18
Even if no formal attorney-client relationship was created, MRPC 1.18 imposes duties to a prospective client if the lawyer received information that could be “significantly harmful” to that individual in the same or a substantially related matter. Even if the lawyer never explicitly agreed to representation, receiving sensitive information can create duties under MRPC 1.18. MRPC 1.18 was enacted after RI-48 and RI-154 were published in an attempt to codify the advice found in the opinions. It addresses a lawyer’s duties to prospective clients — those who consult with an attorney about possible representation but do not ultimately retain them. Rule 1.18 states in part that:
(a) A person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.
(b) Even when no client-lawyer relationship ensues, a lawyer who has learned information from a prospective client shall not use or reveal that information, except as Rule 1.9 would permit with respect to information of a former client.
(c) A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d). If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d).
Under this rule, even if no formal attorney-client relationship is established, MRPC 1.18 imposes obligations on a lawyer who receives information from a prospective client that could be deemed “significantly harmful” to them in the same or a substantially related matter. Furthermore, the rule prohibits a lawyer from representing a client in the same or a substantially related matter if the information obtained from the prospective client could be significantly harmful to them. A lawyer may still represent a client against someone they previously consulted with if both parties provide informed consent in writing. Alternatively, the other lawyers at the lawyer’s firm may still represent the opposing party if proper screening measures are implemented to prevent the disclosure of confidential information. MRPC 1.18 seeks to balance the protection of prospective clients by ensuring that lawyers and law firms are not unduly restricted from taking on new clients.
To prevent conflicts under MRPC 1.18, lawyers should consider conditioning the consultation on the potential client’s “informed consent that no information disclosed during the consultation will prohibit the lawyer from representing a different client in the matter. If the agreement expressly so provides, the prospective client may also consent to the lawyer’s subsequent use of information received from the prospective client.”7 Understanding and adhering to MRPC 1.18 helps protect both prospective clients and law firms while ensuring ethical standards are upheld in the legal profession.
CONCLUSION
In navigating the complexities of legal ethics, attorneys must be mindful of their duties to prospective clients, even when no formal attorney-client relationship is established. A brief consultation alone may not always lead to disqualification, but if confidential or significantly harmful information is shared, the lawyer may be barred from representing an opposing party in the same or a related matter. Regardless of whether a prospective client retains the lawyer, the duty of confidentiality under Michigan Rule of Professional Conduct 1.6 applies,8 reinforcing the profession’s commitment to trust and integrity. To avoid potential conflicts, attorneys should handle initial consultations with care, establish clear boundaries, and implement proper safeguards when necessary.9