Lawyers frequently engage in informal discussions about cases that they are handling. These discussions range from seeking general opinions about a particular venue to specific advice about legal strategy. These informal consultations can be an important part of a lawyer’s practice. However, while informal consultations are almost universally encouraged, they are not without risk. For example, what happens when a plaintiff’s lawyer calls a colleague from a defense firm that has experience in a specific area of the law? The plaintiff’s lawyer runs a scenario by his or her colleague and then asks whether the case is worth pursuing? Can the consulted attorney respond at all and still represent the future defendant? What if a plaintiff’s attorney wants to discuss the best strategy or the merit of a potential legal theory? How far can a consulted attorney go without creating a potential conflict? Finally, can this informal consultation create a conflict that prevents a consulted attorney’s entire firm from representing a future defendant? Colorado recently addressed these questions, and the answers may surprise you.
In In Re Liebnow v. Boston Enterprises, the court denied a plaintiff attorney’s motion for pro hac admission of out-of-state counsel because the opposing attorney had previously consulted another member of the out-of-state attorney’s firm regarding the same case. In Re Liebenow v. Boston Enterprises, 296 P.3d 108 (Colo. 2013). The case involved a child who allegedly became ill from E. coli after eating a salad at the defendant’s restaurant. After the case was filed, the defense attorney contacted a colleague from an out-of-state firm who she knew specialized in food-borne illness cases. Before discussing the case, a conflicts check was conducted to ensure that the out-of-state law firm was not already involved in the litigation. Over the next few days, the attorneys had one telephone conversation and exchanged several e-mails. Their discussion included theories of defense and recommendations about experts and potential third parties that could be added. The defense attorney did not request that the consulted attorney keep the information exchanged confidential.
Several months later, the plaintiff’s counsel contacted a different member of the same out-of-state firm. After some discussion, the out-of-state firm agreed to join the plaintiff’s counsel in the case. However, when the firm filed its admission pro hac vice, the defense attorney objected because of her earlier conversation with another member of the same firm.
The court denied the out-of-state firm’s motion for pro hac vice admission, finding the conversation with another member of the same firm created a nonwaivable conflict under Colo. RPC 1.7(a)(2) and that the conflict was imputed to the entire out-of-state firm under Colo. RPC 1.10. Colo. RPC 1.7 is identical to ABA Model Rule of Professional Conduct 1.7, and Colo. RPC 1.10 is, in relevant part, identical to ABA Model Rule of Professional Conduct 1.10.
The plaintiff’s attorney advanced three arguments in support of admitting the out-of-state counsel. First, the plaintiff’s attorney argued that the Colorado Rules of Professional Conduct only apply if an attorney-client relationship forms. Second, the plaintiff ’s attorney argued that no conflict was created with the original attorney consulted because the consulting defense attorney did not share confidential information with the consulted attorney and the conversation did not materially limit the consulting attorney’s ability to represent the plaintiff. Finally, the plaintiff’s attorney argued that even if a conflict was created, the conflict should not be imputed to the out-of-state firm.
Relying in part on ABA Opinion 98-411, the court rejected all three arguments. First, the court found that the consulting defense attorney did share confidential information, including her theory of the case, even though she never specifically requested that the consulted attorney keep the information confidential. The court also noted that Colorado Rule 1.7 expressly applies to third persons; therefore, the responsibility to protect confidential information did apply even though no attorney-client relationship had formed.
The court also concluded that the conversation created a significant risk that the consulting attorney from the out-of-state firm would be materially limited in his representation of the plaintiff. The court found that because the consulting attorney had a hand in the defendant’s theory of the case and trial strategy, his dual responsibilities to the plaintiff and the defendant created a situation of divided loyalties. If the consulting attorney were to represent the plaintiff personally, he would have the responsibility to use what he had learned from the defense attorney to plaintiff’s advantage and risk violating his duty to keep the information confidential.
Having determined that the consulting attorney could not represent the plaintiff personally, the court found that the conflict must be imputed to the out-of-state firm. The court found that the consultation resulted in a nonwaivable conflict. Therefore, under Rule 1.10, which prohibits lawyers associated with the same firm from representing a client if any one of the lawyers is prohibited from doing so by a conflict, the out-of-state firm was prohibited from representing the plaintiff.
In August 1998, the ABA issued Formal Opinion 98-411, Ethical Issues in Lawyer-to-Lawyer Consultation. This opinion cautions lawyers who engage in informal consultations with colleagues to remember “both the consulting lawyer and the consulted lawyer must take care to fulfill their ethical obligations to their respective clients.” The opinion advises that hypothetical or anonymous consultations should be used when possible.
Hypotheticals are not perfect, however. First, there is a risk when posing a set of facts that are so unique that they will inadvertently reveal the identity of the client. The consulted attorney may also have personal information that when combined with information disclosed makes the identity of the client clear to him or her, or the attorney may later acquire this information and thereby discover the client’s identity.
Model Rule 1.6(a) does permit disclosure of client information if the client is consulted and consents. Part of the discussion should include the fact that disclosure of privileged communications could waive the attorney-client privilege and the consulting attorney may not have a duty to preserve the confidential information.
If the consulting attorneys choose not to keep the clients anonymous, reasonable steps should be taken by the consulted attorney to ensure the consultation will not affect his or her responsibility to existing or future clients. Conflicts checks can prevent discussing a case that affects an existing client. However, In Re Liebenow v. Boston Enterprises demonstrates the risk of informal consultations. Medical malpractice lawyers, for instance, may want to avoid discussing the merits of a particular claim unless they are reasonably certain that they will not be called upon to represent any of the potential defendants.
Informal consultations among lawyers are an important part of a lawyer’s practice and are generally encouraged. However, care should be taken to avoid exchanging confidential information anytime that there is a potential for a consulted firm to become involved in a particular case. Otherwise, a nonwaivable conflict may be created that prevents a consulted firm from representing a client.