Aug. 3, 2017
By Karen Rubin
If you’re driving from state to state, the rules of the road are generally consistent. While details may differ, a red light means “stop” in every state of the Union. But under our federal system, each U.S. jurisdiction has authority to regulate the practice of law — and under the resulting state ethics rules, not only the details, but even some of the basics may differ.
That’s spotlighted in a district court opinion
issued earlier this year, denying a motion to disqualify counsel in a defamation case because plaintiff was not a “prospective client” under South Carolina’s ethics rules.
“If there is no conflict”
The plaintiff sued ten John and Jane Does, alleging he was defamed in a blog post. The plaintiff first threatened suit against the blogger, who hired counsel at a Greenville, S.C. firm, (“Wyche”). Ten days later, plaintiff’s lead counsel reached out to a different lawyer at Wyche. They discussed the possibility of the Wyche lawyer serving as local counsel for plaintiff, and plaintiff’s lead lawyer asked for a fee agreement “if there is no conflict.” The Wyche lawyer took the relevant names “for conflict purposes,” provided the firm’s rates, and said in an e-mail that “I hope we get the opportunity to work together.”
You can see where this is going, right? The next day, the Wyche lawyer — having discovered that the firm already represented the blogger — told plaintiff’s lawyer that the firm had a conflict and declined the representation.
Later, plaintiff issued a subpoena to the blogger, claiming that she had knowledge of the Does’ identities. When the Wyche firm appeared on behalf of the blogger, plaintiff moved to disqualify.
That’s where the Palmetto State’s ethics rules on prospective clients came into play.
To safeguard the confidentiality interests of prospective clients, Model Rule 1.18
provides that if you obtain “information from [a] prospective client that could be significantly harmful to that person in the matter,” you and your firm are generally disqualified from adverse representation in the same or a substantially-related matter.
Who is a “prospective client” under the Model Rule? Anyone who consults with you “about the possibility of forming a client-lawyer relationship with respect to a matter” — even when no lawyer-client relationship ensues.
But South Carolina’s Rule 1.18
is more restrictive. It’s version defines a “prospective client” as someone who consults with a lawyer — but “only when there is a reasonable expectation that the lawyer is likely to form the relationship.”
That made all the difference to the court in ruling on plaintiff’s DQ motion. The court said that there was no evidence that a “commitment” was “likely” that the Wyche firm would represent the plaintiff. The “hope-we-can-work-together” comment was only a “polite courtesy,” the court said.
“Niceties,” are not binding commitments to represent someone, the court held, and “are not, absent unusual circumstances, reasonably interpreted to indicate a commitment is likely.” The plaintiff’s lawyer also clearly understood that before any engagement, Wyche had to check for conflicts.
Without having become a “prospective client” under South Carolina’s version of Rule 1.18, the plaintiff had no basis for disqualifying the Wyche firm.
Different rules, different outcome
The plaintiff here might have met the definition of “prospective client,” and been entitled to the protection of Rule 1.18, in a state that hews to the broader Model Rule language, instead of South Carolina’s more-restrictive version. So you must be aware of such nuances in the ethics rules of the road.
But you also must be diligent in not “hearing too much” when a prospective client reaches out to you. The Wyche lawyer who talked to the plaintiff’s lead counsel in this case didn’t get confidential information about the plaintiff before checking for conflicts.
That’s good policy. There are plenty of examples of successful DQ motions where a lawyer has listened to details — which prospective clients often want to relate — and only then discovered a conflict. The always-excellent Freivogel on Conflicts collects the cases
. In worst-case scenarios, that can result in needing to decline the prospective engagement and
step away from the one that raises the conflict. That’s the message of ABA Ethics Opinion 90-358 (1990) — an outcome no one wants.