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Opinion date: June 5, 2006

Ethics issue presented:

Can an initial interview with a potential client that does not result in a formal attorney-client relationship subsequently bar that attorney from being retained as counsel in a subsequent matter?

Facts as presented by Inquirer:

Attorney consulted briefly with an individual (Prospective Client) in connection with a domestic matter. That consultation never resulted in a formal attorney/client relationship. Sometime later, Attorney was approached by an individual (New Client) who wished to assert an employment related claim against the Prospective Client. Is Attorney barred from representing New Client in a claim against the former Potential Client?

Advice given:

The Inquiring Attorney was asked to review Rule 1.6, relating to confidentiality of information, and Rule 1.18. Rule 1.18(b) states that "even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information which may be significantly harmful to that person learned in the consultation. Explanatory comment No. 6 to Rule 1.18 states that "Even in the absence of an agreement, under paragraph (c) the lawyer is not prohibited from representing a client with interests adverse to those of the prospective client in the same or a substantially related matter unless the lawyer has received from the prospective client information that could be significantly harmful if used in the matter." If in fact such information had been obtained from the prospective client, then informed consent, under Rule 1.0(e), is required.

Attorney came to the conclusion that the limited information obtained in the brief interview with the Prospective Client on a domestic issue could not be harmful to the Prospective Client in the employment claim. As such, the representation of the new client was not barred.

 


Ethics issue presented:

May an attorney threaten to file a second civil action to assert an additional claim if one party to the litigation does not agree to settlement?

Facts as presented by Inquirer:

Inquirer's client is a defendant in a securities matter and believes that his client possess a viable claim against the plaintiff which cannot be raised in the same action, but must be raised in a separate action. The inquiring attorney wishes to communicate to plaintiff's counsel that, if plaintiff does not agree to settle the claim, defendant will proceed to file a separate action against plaintiff. Is this threat of litigation permitted?

Advice given:

The inquiring attorney was advised, under Rule 3.1 of the Rules of Professional Conduct, that a lawyer cannot bring or defend a claim unless that claim has a basis in law and fact and is not otherwise frivolous unless there is a good faith argument for the extension, modification, or reversal of existing law. Inquirer agreed that the potential claim against the plaintiff was well-founded both in law and fact. As such, the Rules contain no prohibition against inquirer advising counsel for the plaintiff that a separate lawsuit will be filed against the plaintiff by defendant if, in fact, a settlement of the first lawsuit was not achieved.

The foregoing is advisory only and is not binding on the Disciplinary Board of the Supreme Court of Pennsylvania or any given Court. It carries only such weight as an appropriate reviewing authority may choose to give it.

 

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