If a lawyer has discussed forming a client-lawyer relationship with a prospective client, and later represents a different client in a substantially related matter with adverse interests, what condition applies for permissible representation?

If a lawyer has discussed forming a client-lawyer relationship with a prospective client, and later represents a different client in a substantially related matter with adverse interests, what condition applies for permissible representation?

• A. The lawyer may proceed only if both clients consent or timely screen and give notice
• B. The lawyer may proceed without any consent or screening
• C. The lawyer must obtain a court order
• D. The lawyer must refuse any representation

Answer: (A)

The key idea is how to handle conflicts when there has been initial contact with a prospective client about forming a lawyer–client relationship, and later the lawyer represents someone else in a substantially related matter with adverse interests. In this situation, the representation is permissible only if both clients give informed consent after full disclosure, or if the lawyer has timely screened the prospective client from the matter and provided proper notice. Why this works: the risk in such scenarios is that confidential information obtained during the discussion with the prospective client could be used against them. Requiring informed written consent from both clients acknowledges and accepts the conflict, while a timely and effective screening (ethical walls) with notice ensures the prospective client isn’t harmed by the new representation and that no confidences are shared. If neither condition is met, the representation would be improper. Options that skip consent or screening, or require a court order, do not align with the established approach to managing conflicts in this context, while a blanket refusal ignores the available fix of consent or screening.

The key idea is how to handle conflicts when there has been initial contact with a prospective client about forming a lawyer–client relationship, and later the lawyer represents someone else in a substantially related matter with adverse interests. In this situation, the representation is permissible only if both clients give informed consent after full disclosure, or if the lawyer has timely screened the prospective client from the matter and provided proper notice.

Why this works: the risk in such scenarios is that confidential information obtained during the discussion with the prospective client could be used against them. Requiring informed written consent from both clients acknowledges and accepts the conflict, while a timely and effective screening (ethical walls) with notice ensures the prospective client isn’t harmed by the new representation and that no confidences are shared. If neither condition is met, the representation would be improper.

Options that skip consent or screening, or require a court order, do not align with the established approach to managing conflicts in this context, while a blanket refusal ignores the available fix of consent or screening.