Prospective Clients & Conflicts of Interest in Unaccompanied Children’s Cases

Conflicts arise when an attorney is unable to fulfill their ethical obligations to two different people. A conflict can occur between existing, former, or prospective clients. This post addresses conflicts involving a prospective client. Attorneys owe a duty of confidentiality to prospective clients. Under ABA Model Rule 1.18, “a lawyer who has learned information from a prospective client shall not use or reveal that information.” (ABA Model Rule 1.18(b)). When assessing potential conflicts, it is important to first understand who is a “prospective client,” such that the attorney will owe this person a duty of confidentiality.

Who is a prospective client? A prospective client is anyone who consults with an attorney about the possibility of forming a client-lawyer relationship. (Comment 2 to Model Rule 1.18). Having some consultation is key. Someone who unilaterally provides information to an attorney does not automatically become a prospective client. (Id.) Moreover, an attorney who gives a know your rights (KYR) presentation does not necessarily provide legal consultation to everyone in attendance. To help avoid potential issues, best practice is to make clear at the outset of any KYR presentation that the person giving the presentation is not considering representing anyone in attendance nor are they giving the presentation as their attorney.

An attorney is disqualified from representing a client with “interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter.” (ABA Model Rule 1.18(c)).

Note that this rule for prospective clients is a bit different than how to address conflicts involving former clients. The rule governing conflicts for former clients does not specifically reference information received; it turns on whether the attorney intends to represent another person in “the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client.” (ABA Model Rule 1.9). The different standards reflect that an attorney may have fleeting contact with a prospective client and be able to limit the information received, whereas it is presumed for former clients that the attorney will have received disqualifying information. See ABA Formal Opinion 510, at 2.

There are several key terms to unpack when assessing potential conflicts involving a prospective client.

Significantly Harmful Information

For a conflict with a prospective client to arise, the lawyer must have received “information from the prospective client that could be significantly harmful to that person in the matter.” (ABA Model Rule 1.18.) What constitutes disqualifying information is discussed in ABA Formal Opinion 492, “Obligations to Prospective Clients: Confidentiality, Conflicts and ‘Significantly Harmful’ Information” (June 9, 2020). Formal Opinions like this are issued by the ABA Standing Committee on Ethics and Professional Responsibility and provide practical advice for attorneys on how to apply the ABA Model Rules. This opinion identifies examples of information that has been viewed as “significantly harmful,” such as:

• Personal accounts of a relevant event and the prospective client’s strategic thinking about how to manage a situation
• Sensitive or financial information that could impact the case
• Views on settlement issues
• Underlying facts and legal theories about a proposed lawsuit
• Proposed structure of a bid from corporation to another

(ABA Formal Opinion 492 at 6.) Determining whether the information from the prospective client is “significantly harmful” requires a case-by-case assessment of the facts. Factors to consider include:

• Duration of the discussion
• Topics discussed
• Documents reviewed
• Whether the information is public or known by other parties
• Relationship between the information and the issues in the matter

(ABA Formal Opinion 492 at 5-7.) When making this assessment in immigration cases, keep in mind that some information usually learned during the intake is publicly available, such as whether someone is in removal proceedings.

Same or Substantially Related Matter

In addition to being significantly harmful, the disqualifying information from the prospective client must relate to the potentially conflicted lawyer undertaking representation in the same or a substantially related matter. This term is also discussed in the context of conflicts with former clients, and there the comments to the rule explain that a matter is “substantially related” if it involves the “same transaction or legal dispute” or if there is “a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client’s position in the subsequent matter.” (Comment 3 to ABA Model Rule 1.9). In unaccompanied children’s cases, these issues can come up in a number of different scenarios, such as representing family members who are the primary and derivative applications in the same immigration application, someone who is a factual witness in support of someone else’s asylum application, or a parent filing a custody petition in state court for a youth who is a client.

To help mitigate potential conflicts issues, organizations with intake processes may want consider having a screening process for prospective clients that includes searching for potentially related matters at the organization before having substantive discussions with a prospective client. For instance, in the initial call to set up the intake asking the prospective client for a list of people involved in the matter and running a conflicts check before they arrive for potentially related matters at the organization. A process like this requires organizations to maintain a database or some other way to search through of all their matters and the related parties. Note that even if matters are substantially related, that does not mean there will be a disqualifying conflict (or any conflict at all). Especially if the conflicts check is run in advance, and information is limited if there is a potentially related matter, the lawyer or legal staff may not receive information from the prospective client that could be considered significantly harmful. Both parts of the rule must be satisfied for a disqualifying conflict to arise. (See Comment 6 to ABA Model Rule 1.18.)

Under ABA Model Rule 1.18(c), a lawyer who received significantly harmful information from a prospective client in the same or a substantially related matter “shall not represent a client with interests materially adverse to those of a prospective client.” As a practical matter, this means in cases where a conflict is not properly addressed that a lawyer may need to withdraw from representing an existing client because of information learned from a prospective client. (See ABA Model Rule 1.18(c)). All other attorneys at the organization where the attorney works could also be disqualified from working on the conflicted matter if not addressed properly. (ABA Model Rule 1.18(c)). Conflicts can be imputed to attorneys working together regardless of whether they work in a law firm or a legal services organization. (Comment 1 to ABA Model Rule 1.10 (defining the term “firm” used in the rule to include a legal services organization)).

Importantly, if a conflict with a prospective client arises, there are actions that the organization and conflicted attorney can take to avoid withdrawal and the conflict being imputed to everyone at the organization. Having policies in place to take these steps should a conflict with a prospective client arise can help ensure that an organization can continue working on the matter for another client.

Written Informed Consent

A conflicted attorney and the organization may not need to withdraw if they obtain informed written consent of both the prospective and current client for continuing to work on the conflicted matter. (ABA Model Rule 1.18(d)(1); Comment 7 to ABA Model Rule 1.18). Written consent can be a powerful tool to help avoid disqualifying conflicts, and organizations may consider having prospective clients sign an informed consent during or following the intake process if a conflict is identified so that the organization may continue to represent the current client. Comment 5 to ABA Model Rule 1.18 also discusses how a lawyer may condition a consultation with a prospective client on that person consenting that nothing they disclose will prohibit the lawyer from representing a different client in the matter. This may be something to consider, especially if organizations conduct an initial screening for substantially related matters before meeting with a prospective client to gather more substantive information about their case.

Note that an informed consent requires communicating “adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.” (ABA Model Rule 1.0). It is especially important when working with children and youth to take the time to properly explain anything before having them sign the consent.

Screen Conflicted Attorney to Avoid Imputation to Organization

If there is no written informed consent from both the prospective and current clients, others at the organization may still be able to work on the conflicted matter if the proper steps are taken for screening the conflicted attorney. A conflict will not be imputed to the organization if the following three steps are taken:

1. Disqualified attorney took “reasonable measures” to avoid exposure to more disqualifying information than was “reasonably necessary” to determine whether to represent the prospective client;
2. Disqualified attorney was timely screened by the organization from the matter; and
3. Written notice is provided to the prospective client.

(ABA Model Rule 1.18(d)(2)). All three steps must be satisfied to prevent the conflict from being imputed to others in the organization. The ABA issued guidance earlier this year on how to apply these steps in ABA Formal Opinion 510, “Avoiding the Imputation of a Conflict of Interest When a Law Firm is Adverse to One of its Lawyer’s Prospective Clients” (March 20, 2024). The following are some practice tips from this guidance for organizations to consider when limiting their exposure to imputation of conflicts with prospective clients.

Take reasonable measures to avoid exposure to information from the prospective client

Another way to avoid an imputed conflict involves timely screening any conflicted staff. Screening is allowed under the ABA Model Rules if the lawyer or legal staff member conducting the intake on the lawyer’s behalf limited their intake of a prospective client to information that is “reasonably necessary” to determine whether to represent them. (ABA Model Rule 1.18(d)(2)). The type of information considered relevant to determining whether to represent someone generally includes anything required for the lawyer to fulfill their ethical duties, such as the identities of parties for a conflicts check and practical information like the type of case and estimated length of time. (ABA Formal Opinion 510 at 4). Reasonably necessary information may also include anything gathered to fulfill a lawyer’s duty to “inquire into and assess the facts and circumstances of each representation to determine whether the lawyer may accept or continue the representation.” (ABA Model Rule 1.16(a)). In addition, a “modest inquiry” into the merits of the claim may be necessary to ensure that the claim is not frivolous before agreeing to the representation. (ABA Formal Opinion 510 at 4-5.) Once the lawyer has sufficient information to decide whether or not to take the case, any additional information is, by default, not reasonably necessary to determining whether to agree to the representation. (Id. at 7). Ultimately, the exact line between necessary and unnecessary information will be fact dependent and assessed on a case-by-case basis.

In addition to the type of information being discussed with the prospective client, the rule also considers if the lawyer or person meeting with a prospective client on the lawyer’s behalf took “reasonable measures” to limit their exposure to information from the prospective client. (ABA Model Rule 1.18(d)(2)). Limiting exposure generally requires some exercise of discretion in communications with prospective clients to ensure that they appropriately limit exposure to reasonably necessary information. (ABA Formal Opinion 510 at 8). Meetings with prospective clients should also be designed to limit the information flow. (Id.). For instance, the lawyer may explain at the outset of meeting with a prospective client that they have not yet agreed to take the case and that the conversation is only going to be limited to discussing the information necessary for determining whether to move forward with the case. (Id.).

How to apply this part of the rule in practice may be easier to understand in the context of other types of cases. For instance, law firms who practice civil law and regularly meet with companies that can be on opposing sides need to be cautious to ensure they do not inadvertently learn information when meeting with a prospective client that would disqualify them from a current case. For immigration nonprofits, it may be harder for the organization to limit the flow of information during an intake, especially if they receive referrals. Best practice may be to screen for substantially related matters in advance of conducting a substantive intake and to educate anyone conducting intakes on how to identify potential conflicts with a prospective client and to limit information in an intake should they become concerned during the meeting about a conflict arising. To the extent possible, organizations may also want to have a pre-set list of questions for intakes that are narrowly tailored for the issues needed to determine if representation is possible.

Timely screen the disqualified attorney

If the lawyer or legal staff has limited the intake to reasonably necessary information and taken reasonable measures, the conflict with a prospective client may be addressed by timely screening them from the conflicted matter to ensure that their conflict is not imputed to the rest of the organization. (ABA Formal Opinion 510 at 8-9). The screening would need to occur as soon as the organization becomes aware of a potential conflict. (Id. at 8). In practice, this requires having a way for organizations to limit conflicted attorneys or members of the legal staff from accessing the case file in the conflicted matter. If a screen is being implemented, it is also best practice to send notice to everyone who is working on the conflicted matter that the attorney/legal staff is being screened from the case to help ensure that they will not discuss the conflicted matter with the disqualified attorney or staff.

Don’t forget about written notice!

When seeking to use a screen to avoid the imputation of a conflict with a prospective client, the final step under this part of the rule is to send written notice to the prospective client. (ABA Model Rule 1.18(d)(2)). Written notice is different from informed consent in writing.

There may be times when the best or only solution will be for the organization to withdraw from the existing case because the conflict has been imputed to everyone and there is no way to obtain written informed consent from the prospective and current clients. In those situations, it is important to explain what is happening to the current client and ideally have a plan for referring their case to another organization who is not conflicted out of representing them in the matter.