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Thompson Hine LLP, a full-service business law firm with approximately 400 lawyers in 11 offices, was ranked number 1 in the category “Most innovative North American law firms: New working models” by The Financial Times and was 1 of 7 firms shortlisted for The American Lawyer’s inaugural Legal Services Innovation Award. The firm has been recognized by the National Law Journal as a Legal Technology Trailblazer and featured by Bloomberg for its innovative service delivery models, which drive accuracy and predictability. The firm’s commitment to innovation is embodied in Thompson Hine SmartPaTHTM – a smarter way to work – predictable, efficient and aligned with client goals. For more information, please visit ThompsonHine.com and ThompsonHine.com/SmartPaTH.

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<img style="max-width: 100%;height: auto;max-width: 100%;height: auto" loading="lazy" class="alignright size-medium wp-image-3456" src="https://www.thelawforlawyerstoday.com/wp-content/uploads/sites/754/2017/08/Prospective-client-285x300.jpg" alt="" width="285" height="300">If you&rsquo;re driving from state to state,&nbsp;the rules of the road are generally consistent.&nbsp; While details may differ,&nbsp;a red light means &ldquo;stop&rdquo; in every state of the Union.&nbsp; But under our&nbsp;federal system,&nbsp;each U.S. jurisdiction has&nbsp;authority to&nbsp;regulate the practice of law &mdash; and&nbsp;under the resulting state ethics rules, not only the details, but even some of the basics may differ.
That&rsquo;s spotlighted in a district court&nbsp;<a href="http://filehost.thompsonhine.com/uploads/01.10.17_-_Opinion_e30f.pdf">opinion</a> issued earlier this year,&nbsp;denying a motion to disqualify counsel in a defamation case because&nbsp;plaintiff was not a &ldquo;prospective client&rdquo; under South Carolina&rsquo;s&nbsp;ethics rules.
&ldquo;If there is no conflict&rdquo;
The plaintiff sued ten John and Jane Does, alleging he was defamed in a&nbsp;blog post.&nbsp; The plaintiff first threatened suit against the blogger, who hired counsel at a Greenville, S.C. firm, (&ldquo;Wyche&rdquo;).&nbsp; Ten days later, plaintiff&rsquo;s lead&nbsp;counsel&nbsp;reached out to a different lawyer at Wyche.&nbsp;&nbsp;They discussed the possibility of the Wyche lawyer serving as local counsel for plaintiff, and plaintiff&rsquo;s lead lawyer asked for a fee agreement &ldquo;if there is no conflict.&rdquo;&nbsp; The Wyche lawyer took the relevant names &ldquo;for conflict purposes,&rdquo; provided the firm&rsquo;s rates, and said in an e-mail that &ldquo;I hope we get the opportunity to work together.&rdquo;
You can see where this is going, right?&nbsp; The next day, the Wyche lawyer &mdash; having discovered that the firm already represented the blogger &mdash;&nbsp;told plaintiff&rsquo;s lawyer that the firm had a conflict and declined the representation.
Later, plaintiff&nbsp;issued a subpoena to the&nbsp;blogger, claiming that she had knowledge&nbsp;of the Does&rsquo; identities.&nbsp; When the Wyche firm appeared on behalf of&nbsp;the blogger, plaintiff moved to disqualify.
That&rsquo;s where the Palmetto State&rsquo;s ethics rules on prospective clients came into play.
Prospective client?
To safeguard the confidentiality interests of prospective clients, <a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_18_duties_of_prospective_client.html">Model Rule 1.18</a> provides that&nbsp;if you obtain &ldquo;information from [a] prospective client that could be significantly harmful to that person in the matter,&rdquo; you and your firm are generally disqualified from&nbsp;adverse representation in the same or a substantially-related matter.
Who is a &ldquo;prospective client&rdquo; under the Model Rule? Anyone who consults with you &ldquo;about the possibility of forming a client-lawyer relationship with respect to a matter&rdquo; &mdash; even when no lawyer-client relationship ensues.
But <a href="http://www.sccourts.org/courtreg/displayRule.cfm?ruleID=407.0&amp;subRuleID=RULE%201%2E18&amp;ruleType=APP">South Carolina&rsquo;s Rule 1.18</a>&nbsp;is more restrictive.&nbsp; It&rsquo;s version&nbsp;defines a &ldquo;prospective client&rdquo; as someone who consults with a lawyer &mdash; but &ldquo;only when there is a reasonable expectation that the lawyer is likely to form the relationship.&rdquo;
That made all the difference to the court in ruling on plaintiff&rsquo;s DQ motion.&nbsp; The court said that there was no evidence&nbsp;that a &ldquo;commitment&rdquo; was &ldquo;likely&rdquo; that the Wyche firm would represent the plaintiff.&nbsp; The &ldquo;hope-we-can-work-together&rdquo; comment was only a &ldquo;polite courtesy,&rdquo; the court said.
&ldquo;Niceties,&rdquo; are not binding commitments to represent someone, the court held, and &ldquo;are not, absent unusual circumstances, reasonably interpreted to indicate a commitment is likely.&rdquo;&nbsp; The plaintiff&rsquo;s lawyer also clearly understood that before any engagement, Wyche had to check for conflicts.
Without having become a &ldquo;prospective client&rdquo; under South Carolina&rsquo;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 &ldquo;prospective client,&rdquo; 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&rsquo;s more-restrictive version.&nbsp; So you must be aware of&nbsp;such&nbsp;nuances in&nbsp;the ethics rules of the road.
But you also must be diligent in not &ldquo;hearing too much&rdquo; when a prospective client reaches out to you.&nbsp; The Wyche lawyer who talked to the plaintiff&rsquo;s lead counsel in this case didn&rsquo;t get confidential information about the plaintiff before&nbsp;checking for conflicts.
That&rsquo;s good policy.&nbsp; There are plenty of examples of successful DQ motions where a lawyer has listened to details &mdash; which prospective clients often want to relate &mdash; and only then discovered a conflict.&nbsp; The always-excellent Freivogel on Conflicts <a href="http://www.freivogelonconflicts.com/initialinterview.html">collects the cases</a>.&nbsp; In worst-case scenarios, that can result in needing to decline the prospective engagement and step away from the one that raises the conflict.&nbsp; That&rsquo;s the message of ABA Ethics Opinion&nbsp;90-358 (1990)&nbsp;&mdash; an outcome no one wants.

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Ethics

Legal Ethics, Professional Responsibility and the Business of Law

Prospective client?  Not so fast, says district court in DQ ruling