On June 21, 2011, and effective immediately, the Virginia Supreme Court adopted a new provision in the Rules of Professional Conduct. This amendment to the Rules changes the ethics in Virginia concerning conflicts of interest and potential new clients.
Under the old rules, when an attorney met with a prospective client and decided not to accept the case – or the prospective client decided not to employ the attorney – there was an ethical risk if later another person involved in the same matter came to the attorney and sought representation. The concern was that the attorney may have learned something from the interview with the first prospective client that could be of advantage in representing the second prospective client, and might be used against the first client’s interests. For example, consider the driver in a truck wreck approaching an attorney with a personal injury law firm such as Allen, Allen, Allen & Allen to represent him. If that truck driver was at fault, the lawyer might turn down his case. Later the person the truck driver hit might contact the lawyer, and the lawyer would like to represent that person and handle their truck crash case. However, under the old Rules, if the truck driver had told the truck accident lawyer any confidential information, that attorney was forbidden to represent the second prospective client.
Furthermore, the Virginia State Bar adopted the position that if one attorney in a firm was “conflicted out,” all attorneys in the firm were forbidden to undertake that employment. Thus, if an attorney was forbidden to handle a case due to the conflict described above, then every attorney in that law firm was also forbidden to represent the second prospective client. The situation could be addressed only if all of the potential parties agreed to waive any conflict – an understandably rare occurrence.
However, the “Chinese Wall Rule” used by other states offers a solution to this conflict. If one attorney in a law firm obtained confidential information from a possible client and did not end up representing that potential client, then another attorney in the same firm could represent the second client under one condition; the attorneys could not discuss the matter or have any access to any of the information the first attorney received from the potential client, and the conflicted attorney could not work on the case or communicate with the other attorneys on that matter.
With the adoption of new Rule 1:18(d)(2), the Virginia Supreme Court has adopted the “Chinese Wall” approach. Now, so long as he is strictly screened from any work on – or contact with attorneys working on – the case, a conflicted attorney will not prevent other lawyers in the firm from representing an alternate party involved in the case. Also, written notice of the screen must be sent to the former prospective client as soon as practicable.
If a prospective client sends confidential information to an attorney in a situation where the prospective client could not reasonably expect confidentiality or privacy, then the Comments to Rule 1:18 state that the conflict rule does not apply so that a “Chinese Wall” does not need to be created. For instance, if a potential client discusses their legal problem in a loud conversation with friends at a cocktail party, and one of the friends happens to be a lawyer, then this conversation does not create any reasonable expectation of privacy or confidentiality by the prospective client, and the conflict rule does not apply. Similarly, if a lawyer’s website has a disclaimer stating any information sent will not be treated confidentially, then if a prospective client sends information before a confidential relationship is established, then the prospective client has no reasonable expectation of privacy and again the rule does not apply.
Comment 5 to the new Rule gives attorneys another method for preventing themselves from potentially being conflicted. When first meeting with a prospective client, an attorney can draft a document telling the client that any information the client provides during the meeting will not stop Virginia attorneys & law firms from representing someone adverse to the client. The document also informs the client that anything he or she says can be used by the lawyer in a suit against the client. If the prospective client agrees, this document will be valid and absolve the lawyer of any potential conflict. As a practical matter, however, it’s unlikely that an attorney would do this except perhaps in a commercial matter. In a personal injury matter, most clients would be troubled and confused by an attorney who asked them to waive confidentiality in the first meeting, and most attorneys would never ask for this.
In short, the ethics rules in Virginia have changed to make it easier for a lawyer to avoid the conflicts prohibitions in interviewing potential new clients.
About the Author: Chris Meyer is a car accident attorney in Mechanicsville Virginiawith Allen & Allen. He has developed a reputation on the Virginia Rules of Professional Conduct and annually lectures on Virginia Legal Ethics. He also lectures regularly on recent decisions of the Virginia Supreme court.