Bench and Bar Newsletter
The newsletter of the ISBA’s Bench & Bar Section Council

October 2014, vol. 45, no. 4

Lawyer shopping as a sword: It’s time to stop this abuse

What should a lawyer and judge do when confronted with a litigant who has interviewed many attorneys in a field, and now attempts to disqualify all those he does not retain from representing his opponent?

Rule 1.18 of the Illinois Rules of Professional Conduct (IRPC) was adopted, in part, to address the phenomenon of lawyer shopping, a situation which arises most frequently in domestic relations cases and, with less frequency, in commercial cases. It is a common tactic of some litigants to meet with many of the best-known firms in a particular field in order to preclude the opponent in anticipated litigation from having access to those firms. That litigant then strategically moves to disqualify each successive firm on the basis of IRPC Rule 1.9, which precludes an attorney from representing former clients in adverse matters without informed consent.1 Rule 1.18, has been in effect since January 2010 and cases interpreting it are few.

IRPC Rule 1.18, in its entirety, reads:

Duties to Prospective Client

(a) A person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.

(b) Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation, except as Rule 1.9 would permit with respect to information of a former client.

(c) A lawyer subject to paragraph (b) shall not represent 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, except as provided in paragraph (d). If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d).

(d) When a lawyer has received disqualifying information as defined in paragraph (c), representation is permissible if:

(1) both the affected client and the prospective client have given informed consent, or

(2) the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; and that lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom.

An inherent aspect of the prospective nature of the relationship is that both the lawyer and the client are free to proceed no further in their relationship, See, comment [1] to IRPC Rule 1.18. Prospective clients are afforded less protection than former clients. Id.

In re the Marriage of Newton, 2011 IL App (1st) 090683, Nuccio v. Chicago Commodities Inc., 257 Ill.App.3d 437 (1st Dist. 1993) and their predecessors stand for the proposition that an initial consultation can create an attorney client relationship, in certain circumstances. However, at the time of the decisions in Newton, Nuccio, and similar cases disqualifying counsel under IRPC Rule 1.9 based on initial consultations, IRPC Rule 1.18 was not yet in effect, and hence could not be considered by the Courts. Finally, in some of those cases, the attorney at issue in that matter was the same attorney who conducted the initial interview with both parties. See, e.g., Newton, supra. Newton and similar cases are therefore unlikely to offer much guidance for judges today.

IRPC Rule 1.18 requires that potentially disqualified attorneys within a firm be properly screened, and take no share of the fee, in which case, representation may be permissible. IRPC Rule 1.18(d)(2). Consent of the prospective client is not required. IRPC Rule 1.18(d)(1)(the word “or” between the consent exclusion and the screening exclusion makes it clear that either situation results in permissible representation).

Screening is addressed in IRPC Rule 1.0(k). “Screened” means the isolation of a lawyer from any participation in a matter through the timely imposition of procedures that are reasonably adequate under the circumstances to protect information that the isolated lawyer is obligated to protect. The comments to IRPC Rule 1.0 make clear that screening removes the imputation of a conflict of interest under IRPC Rules 1.10, 1.11, 1.12 or 1.18 (See, Comments [8] to [10] to IRPC Rule 1.0.) Screening includes acknowledgement by the potentially disqualified attorney of her obligation not to communicate with the other lawyers in the firm about that matter as well as steps by the non-disqualified attorneys to protect the file—i.e., password protected electronic files, screening notations on physical files, reminders about the screen, written acknowledgment by the screened attorney of the restriction, care in intra-firm discussions, and the like.

Judges may feel that an evidentiary hearing is appropriate to determine whether the screening procedures are both timely and adequate. Such hearings should focus on those issues, rather than on the issue of what purportedly confidential information was given to the prospective attorney, in an effort to in fact keep the information confidential. It is recommended that an attorney who is not otherwise working on the case handle the disqualification hearing and screening in order to maintain the integrity of the process.

The ABA Model Rule is virtually identical to the provision adopted by Illinois. Specifically, ABA Model Rule 1.18 provides that the prospective client must be advised in writing of the representation in addition to the timely screening. ABA Model Rule 1.18(d)(2)(ii). No such requirement exists in Illinois’ Rule at present.

In addition, the ABA Commission of Ethics 20/20 has suggested a few modifications to the ABA Model Rule, which are likely to be adopted by Illinois. In particular, the words ‘discusses/discussion’ in subparts (a) and (b) are likely to be replaced with the words ‘consults/consultation’ to clarify that two-way communication is required. The reasoning, in part, is that advertising does not constitute a consultation, even if could constitute a discussion. Finally, comment [2] to the proposed Model Rule changes makes clear that ‘lawyer-shopping’ or deliberately disclosing case-specific information to attorneys in an effort to disqualify said counsel does not make the person a prospective client. See, ABA Commission on Ethics 20/20 Resolution 105B, dated August 6, 2012. This comment is consistent with Illinois case law.

If adequate screening is conducted by the firm, motions to disqualify counsel on the basis that another member of that firm was interviewed by a prospective client may properly be denied, as there is no longer an imputation of a conflict of interest.

No doubt, legitimate conflicts of interest are of great concern to ensure the integrity of the judicial system. Both the Illinois Supreme Court and the ABA have addressed lawyer shopping as a sword—a situation that deserves constant attention. ■

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1. IPRC Rule 1.9 Duties to Former Clients

(a) A lawyer who has formerly represented client in a matter shall not thereafter 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 unless the former client gives informed consent.