Tuesday, January 18, 2011

"The Soprano Scenario" -- New Opinion on Confidential Information from Potential Clients, Disqualification and Screening

 
Tthe State Bar of Wisconsin’s Professional Ethics Committee recently published Formal Ethics Opinion EF-10-03. A Bar legal writer summarizes the new policy which explores situations in which clients share confidential information with potential lawyers (sometimes as a tactical maneuver to prevent them from representing adverse parties):
  • "Remember the episode from The Sopranos when Tony and Carmela contemplate divorce? Tony goes to every good divorce attorney in the area and reveals information that ethically prevented those attorneys from representing Carmela when she came to them seeking a divorce lawyer."
Under rules adopted by the Wisconsin Supreme Court (20:1.18):
  • "...a lawyer that receives information 'that could be significantly harmful to that person in the matter' cannot represent another client 'with interests materially adverse to those of a prospective client in the same or a substantially related matter.'"
The ethics opinion clarifies "significantly harmful":
  • "Those situations involve cases in which sensitive personal information is exchanged, when a lawyer obtains possession of a prospective client’s financial information, learns of a prospective client’s settlement position, the client’s personal thoughts on litigation strategies or impressions regarding the facts of the case, and any other information that could be used to the detriment of the prospective client in the matter."
The opinion references ABA Ethics Opinion (90-358), which provides general guidance regarding prudent pre-client information exchanges and notes that:
  • "Under SCR 20:1.18, a lawyer can also avoid disqualification by informing the prospective client that no information disclosed will prohibit the lawyer from representing a different client in the matter. The prospective client can also consent to a lawyer using the information obtained."
Finally, if confidential information is communicated, such that an individual lawyer would be disqualified from representing an adverse party, the opinion formally recognizes the suitability of ethical screens as a prophylactic measure which would enable others within the firm to act, so long as the screen is timely, effective and notice is properly executed:
  • "The disqualified lawyer must be timely screened from participation, and may not receive any fee derived from the matter. The law firm must also give the client prompt written notice, which allows the client to challenge the sufficiency of the screening process."
(Note: This blog ranks the Wisconsin Bar's web site highly not only for its writer's skillful incorporation of pop cultural analogies, but also for the prominent display of a cow in its header graphic.)

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