Prospective Client Conflict and Screening
Attorney Maya practices at a three-lawyer firm in Wichita. Developer Owen meets with Maya for 45 minutes about a dispute with his general contractor, Corbin. Owen says he may hire Maya but never does. During the meeting, Owen reveals that Corbin's project manager sent Owen a private text admitting the project was behind schedule and that Corbin had improperly billed $80,000. Maya took notes and put them in a conflict file. Six months later, Owen sues Corbin. Corbin asks Maya's firm to defend it. The firm's managing partner, Sam, assigns the case to another lawyer, Priya, and screens Maya; Maya does not share the notes. Maya had told Sam only that she 'met with Owen once but was not retained.' The firm represents Corbin and moves to dismiss Owen's claim. Owen moves to disqualify the firm, arguing Maya's conflict is imputed.
1. Does Maya have a conflict under Kansas Rule 1.18? Explain the duties owed to a prospective client.
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Yes. Kansas Rule 1.18 imposes duties on a lawyer who consults with a prospective client. Even if no attorney-client relationship forms, the lawyer may not use or reveal information learned in the consultation. The lawyer also may not represent a client with materially adverse interests in the same or a substantially related matter if the information received could be significantly harmful to the prospective client.
Maya met Owen for 45 minutes about the dispute with Corbin. She learned that Corbin's project manager admitted delay and improper billing of $80,000. That information is confidential and directly relevant to Owen's lawsuit. It could be significantly harmful to Owen if used against him, because it reveals his evidence and potentially his litigation strategy. Corbin's interests are materially adverse to Owen's. The matter is the same dispute. Maya therefore cannot represent Corbin, and her conflict is imputed to the firm under Rule 1.18(c) and Rule 1.10 unless screening cures it.
2. Can the firm avoid disqualification by screening Maya? What conditions must be met?
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Screening may avoid imputed disqualification under Rule 1.18(d)(2), but only if strict conditions are met. The firm must show that Maya was timely screened from any participation in the Corbin representation and apportioned no part of the fee. The firm must also give written notice to Owen. In addition, the lawyer who received the information must have taken reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client.
Maya's 45-minute meeting was not necessarily excessive, but she learned the project manager's admission and the $80,000 billing fact. Those are highly relevant. The firm's screen must be effective from the outset of the Corbin representation. Maya's notes must remain inaccessible, and she must not discuss the case. Sam's knowledge matters: if Sam learned only that Maya met Owen once, the screen may suffice. If Sam learned the substance of the admission, the firm's knowledge cannot be screened away so easily.
Owen must receive written notice so he can challenge the screen. If the firm cannot prove these conditions, it must withdraw.
3. What if the firm uses the $80,000 admission to cross-examine Corbin's project manager? What consequences follow?
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Using the $80,000 admission would violate Rule 1.18(b), which prohibits using information learned from a prospective client to the disadvantage of that person. It would also undermine any claim that the screen was effective. The firm would likely be disqualified, and Maya and the firm could face discipline. The court could also impose sanctions, exclude the evidence, or report the conduct.
A screen is not a license to use the prospective client's confidences. The firm must prove that the information did not infect the representation. If Priya independently learned the same fact from Corbin's files, the firm might argue independent source, but it would need to show a clean chain. Using Maya's notes or Sam's knowledge would taint the case.
Owen may also seek injunctive relief to prevent the firm from continuing. The court should weigh the prejudice to Owen and the public's interest in protecting consultations. The firm's best course is to withdraw if the screen cannot be defended.