Litigation

Ca. Litig. Rev. 2021

THE PROSPECTIVE CLIENT INTERVIEW—NEW CONSIDERATIONS IN LIGHT OF FORMAL OPINION NO. 2021-205 TO AVOID CONFLICTS AND COMPLICATIONS

Written by Kermit D. Marsh*

A major aspect of most lawyers’ (or law firms’) practice is the interview with a prospective client. Issues such as how to conduct the interview and what questions to ask are among those that lawyers regularly face. This article discusses what to tell the prospective client at the outset and how to inquire about possible conflicts of interest, break discussions with prospective clients into stages, limit the receipt of confidential information, and explains the dangers of sharing confidential information with colleagues at the law firm.

Unfortunately, published decisions regarding relationships with prospective clients are few, as are related Formal Opinions by the State Bar of California ("State Bar"). Fortunately, in 2021, the State Bar’s Standing Committee on Professional Responsibility and Conduct (the "Committee") issued Formal Opinion No. 2021-205. Unlike the many Formal Opinions which address relationships between lawyers and clients and between lawyers and former clients, Formal Opinion No. 2021-205 focuses on the relationships between attorneys and prospective clients.

Formal Opinion No. 2021-205 addresses three issues: (1) the disclosure or use by the lawyer of confidential information received from a prospective client; (2) the use of ethical screening to separate the interviewing lawyers from the remainder of a law firm to allow other lawyers at the firm to represent existing clients adverse to the prospective client in the same or substantially related matters; and, (3) the use of advanced informed written consent to permit other lawyers in the interviewing lawyer’s law firm to undertake representation adverse to the prospective client in the same or substantially related matters.1

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