An attorney who practiced in business law and litigation included a contact page on her website. The contact page allowed a visitor to the website to send inquiries to the attorney. John owned a small business and had a contract dispute with Bill, one of John’s suppliers. John used the contact page on the attorney’s website to send an inquiry to the attorney and included details about the contract dispute. The attorney responded that he was too busy at that time to take John’s case and gave him the names of three other attorneys. Later, Bill contacted the attorney, and the attorney agreed to represent Bill in a suit between Bill and John. Is the attorney subject to discipline?
Explanation
Answer: D - Yes, because John’s prior communication creates a conflict of interest. “Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation, except as Rule 1.9 would permit with respect to former clients.” Model Rule 1.18(b). A lawyer who represented a former client cannot later represent another person “in the same or a substantially related matter in which the person’s interests are materially adverse to the . . . former client” unless the former client gives informed consent. Model Rule 1.9(a). In short, potential clients who communicate information to an attorney are entitled to have that information protected (in most cases) as if the potential client had become a client. Answer D is the best choice because John included details about the contract dispute in his inquiry to the attorney, and the information communicated is entitled to protection as if John had become a client-which results in a conflict of interest the prevents the attorney from representing Bill in the same case against John. Answer A is not the best choice because it does not matter that John never became a client. Answer B is not the best choice because the obligation to maintain confidentiality is what leads to the conflict of interest. Answer C is not the best choice because the advertising rules are unrelated to the real issue.
