The Co-Tenant Who Called Second: Prospective-Client Conflicts at a Legal Aid Office
Nadia is a staff attorney in the housing unit of a nonprofit legal aid office. Two weeks ago, an intake volunteer - a law student certified to appear under supervision - spent 50 minutes on the phone with Marcus Okafor. Okafor described mold in his bathroom, read aloud two text messages from the property manager, emailed six photos, and mentioned an upcoming housing voucher recertification. The volunteer told him the office probably could not help because of a grant restriction and ended the call. Yesterday, Okafor's co-tenant, Elena Reyes, called. Her facts are nearly identical, and the unit wants to take her case because it fits a new grant. Nadia is asked to supervise. The managing attorney says, 'The student isn't a lawyer, so just screen her and move on.' Nadia is also counsel of record in an unrelated pending suit against the same landlord, filed three months before the intake call.
1. May the office represent Reyes? Identify the governing rule framework, the key factual determination, and the steps that would make representation permissible.
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Start with Model Rule 1.18. A person who consults a lawyer about the possibility of forming a client-lawyer relationship is a prospective client, even if no relationship forms. Under Rule 1.18(c), the office may not represent Reyes if the matter is the same or substantially related and the student received information that could be significantly harmful to the landlord in that matter. This is the same matter, and the photos, manager texts, and recertification timeline are directly usable against the landlord - likely significantly harmful.
The screening route in Rule 1.18(d)(2) is available only if the person who took the call used reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to decide whether to take the case. A 50-minute narrative intake with documents and a request for evidence is hard to defend as minimal. The safer route is Rule 1.18(d)(1): informed consent from both Okafor and Reyes, confirmed in writing, after full disclosure.
Practical steps: run a conflicts check first; treat the student's knowledge as the supervising attorney's under Rules 5.1 and 5.3; document the consent discussion and any screening; and give prompt written notice if screening is used. Do not let the grant deadline drive the ethics analysis.
2. Does Nadia's unrelated lawsuit against the same landlord disqualify the office, and may she supervise the Reyes matter?
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This is not automatically a conflict. Rule 1.7 addresses conflicts between current clients, and the landlord is not Nadia's client. Her personal litigation is a personal interest, however, and Rule 1.7(a)(2) bars representation if that interest creates a significant risk that her professional judgment on behalf of Reyes will be materially limited.
Ask concrete questions. Will Nadia's own case require her to take positions about the landlord's building-wide practices that overlap with Reyes's allegations? Could the landlord use discovery from the Reyes matter against Nadia personally? If the only connection is a common adversary, the risk is low, and no consent is required. If the two matters could be used against each other, Reyes must give informed consent confirmed in writing, and the office should consider having another attorney supervise.
Screening Nadia from the Reyes file is prudent either way, and it should be documented. But screening does not cure a Rule 1.7 conflict without consent; it only prevents imputation under Rule 1.10. The managing attorney's 'just screen her' instruction conflates the two rules and should be corrected in writing.
3. What must be done with the intake notes and the prospective client's documents, and what notice is owed to Okafor?
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Rule 1.18(b) makes the information confidential and forbids using or revealing it, even though no client relationship formed. Okafor's photos, texts, and statements may not be used to build Reyes's case or shared with her. The intake notes should be preserved, not destroyed - destruction looks like concealment and may violate record-retention duties and spoliation principles if litigation is foreseeable.
Access should be restricted: a separate file, a conflicts memo, and access limited to the managing attorney and whoever must evaluate the conflict. If the office proceeds under Rule 1.18(d)(2), it must promptly give Okafor written notice that it received his information, that the student has been screened, and that the office now represents Reyes. Notice should be enough for him to object or seek his own counsel, without disclosing Reyes's confidences.
If the office instead relies on consent, the writing should state what information was received and what the office will and will not do with it. If the office declines Reyes, it must still return original documents and keep the file under the organization's retention policy. Finally, remind the student that the duty survives the ended call.