Curing the Conflict

Rule 1.18(d) is the exit from both bars. It applies once the lawyer has received disqualifying information, which paragraph (c) defines as information from the prospective client that could be significantly harmful in the matter, and it makes representation permissible when its conditions are met.¹ Both bars send the reader there. The first sentence of paragraph (c) forbids the adverse representation “except as provided in paragraph (d),” and the sentence that imputes the lawyer’s disqualification to the firm carries the same exception.²

Without a cure, one short consultation would bar every lawyer in the firm from a matter adverse to the person who walked in. The rules do not ask whether the firm would in fact misuse what it heard. Conflicts rules guard against the risk that a lawyer will compromise duties owed to clients, not against proven harm, so a cure must either remove the risk or secure the agreement of the person who bears it.³ Rule 1.18(d) gives the firm two ways to do that. Either the person who confided accepts the risk, or the firm arranges its work so that the confidences stay with the one lawyer who heard them.

Satisfying either route is enough.⁴ The consent route requires informed consent, confirmed in writing, from both the affected client (the client who would be adverse to the prospective client) and the prospective client. The screening route is a package of conditions that must all be met. The lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to decide whether to take the person on. That lawyer is timely screened from any participation in the matter and apportioned no part of the fee. Written notice is promptly given to the prospective client.

The routes differ in what they ask of the person who confided. Consent requires that person’s agreement, so the person holds a veto. Screening requires no agreement. It substitutes safeguards and notice, which is why its conditions work as a package and a firm cannot satisfy some and skip the rest.

The routes also differ in whom they clear. Consent removes the prospective client’s objection altogether, so it can free the consulted lawyer along with every colleague. Screening frees only the colleagues. Its conditions state when imputation to the firm is permissible, and the lawyer who received the information is the one the screen walls off.⁵ The consent route comes first below.

Rule 1.18(d)(1) supplies the first cure. The representation is permissible if both the affected client and the prospective client have given informed consent, confirmed in writing.⁶ The affected client is the one who would be adverse to the prospective client, usually the existing client who has asked the firm to take the adverse matter. New Jersey’s version of the rule, quoted in a reported opinion, uses the same consent route.⁷

Two consents are required because two people hold two different interests, and neither can give up the other’s. Only the prospective client can waive the protection built around the confidences that person shared. The affected client holds a separate interest in the quality of the firm’s work. A lawyer who carries another person’s confidences into a matter may be limited in how that information can be used, and the engagement may draw a later challenge, so the affected client must decide whether to accept that burden. A firm holding one consent therefore holds half a cure, and half a cure leaves the imputed disqualification in place.

The practical difficulty is timing. Once the firm already wants to act for the other side, the prospective client has disclosed everything and gains nothing by agreeing. The lawyer’s better opportunity comes before any disclosure, when the person still wants to be heard. The lawyer may seek the person’s advance consent that receiving information will not prevent the lawyer from representing another party in the matter.⁸ Advance consent is a way of obtaining the paragraph (d)(1) consent, not a third cure.

Advance consent works only if the person understands what it gives up. The lawyer must make sure the person sees that disclosing confidential information in the consultation will not protect the person from later adverse representation, or from adverse use of the information if the person has agreed to that as well. The person should also be advised to be careful about what is revealed.⁹ A signature on a form that never mentions adverse representation shows that the person signed. It does not show that the person understood.

The words “confirmed in writing” do not require a signed agreement at the outset. The agreement must end up in writing, and a lawyer may take an oral yes and then send a letter or email recording what was agreed.¹⁰ The writing fixes what was disclosed and what was agreed, since an oral exchange invites later disagreement about both. An oral yes with no follow-up leaves the cure unmet, however clearly the person spoke.

The usual exam error is treating the existing client’s paperwork as the whole cure. The paragraph asks for the person who confided to agree as well, and silence, delay, or a failure to object does not count as agreement.

A form saying only that sending information creates no attorney-client relationship would not have done the same work. It says nothing about adverse representation, so the signer could not know what he had given up.

Reasonable Measures

Rule 1.18(d)(2) opens the screening route with a condition that looks back at the consultation rather than forward to the screen. The lawyer who received the information must have taken reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to decide whether to represent the prospective client.¹⁴ The screen, the fee bar, and the notice follow it, joined by the word “and,” so this condition works as a gateway. If the firm lacks clear guidelines for controlling what it receives from prospective clients, or the interviewing lawyer ignores them, the screening exception is withdrawn. The disqualification then stays imputed throughout the firm, even if the disqualified lawyer is excluded from the matter.¹⁵ A wall built afterward is built too late, because the condition asks what the interviewing lawyer did before any wall existed.

The condition protects two interests. The prospective client is protected from over-exposure: every fact collected beyond what the lawyer needed to decide whether to take the matter now sits in the firm’s hands with no engagement to justify it. The screen itself also becomes more credible, because a wall keeps one lawyer’s knowledge from colleagues, and the less that lawyer knows, the less can leak. When the firm limits what it receives, as Professors Rotunda and Dzienkowski explain, “the lawyers are more likely to comply with the screening requirements, and the prospective client is more likely to be comfortable with the screening procedure.”¹⁶ The firm has its own reason to care. An encounter with a prospective client can disqualify the lawyer from representing any other client, existing clients included, in the same or a substantially related matter. The lawyer therefore has good reason to arrange the consultation so that it limits the information received.¹⁷

The standard is reasonableness, and it does not require the lawyer to hear nothing. The prospective client need not be prevented from sharing any substantive information, which may be impractical if the lawyer is to evaluate intelligently whether representation is appropriate or possible. What the lawyer may wish to control is receipt of information that is significant and harmful.¹⁸ The condition also looks at the lawyer’s conduct rather than the person’s candor. Its text asks whether the lawyer took reasonable measures to avoid exposure, so a person who volunteers more than the lawyer sought does not by that fact alone forfeit the cure, provided the lawyer’s own efforts were reasonable.¹⁹

Exam Analysis Steps

The rule prescribes no script, only a ceiling: nothing beyond what is reasonably necessary to decide whether to take the person on. The condition is easiest to check on a set of facts by following the order of the intake meeting.

Did the firm have clear guidelines controlling what it takes from a prospective client before deciding whether to accept the person?²⁰
Did the interviewing lawyer follow those guidelines? A lawyer who ignores good guidelines fails the condition as surely as a firm with none.²¹
Did the meeting begin with information about the other parties only, perhaps through a short form that asks for their names and leaves no room for confidences?
Did the lawyer run a conflicts check on those names before the conversation moved into substance?
Did the lawyer end the consultation when a conflict with an existing client appeared, before significantly harmful information was shared?²²

The first two steps test the firm’s system and the last three test the meeting, and a missing or ignored guideline is enough by itself to withdraw the exception.²³ Each step has a matching failure. A lawyer who never asks about the other parties, who asks but misses an existing client’s name, or who invites the full story before checking, has collected confidences without limiting them. The firm then has little to point to when it claims that the exposure was no greater than necessary.

A stem that reports a great deal of volunteered detail tempts you to conclude that the screen is gone, and a stem that reports an elaborate wall tempts the opposite conclusion. The first condition answers both by asking what the firm and the interviewing lawyer did before the substance arrived.

Hypothetical Illustration

A four-lawyer firm has no written intake procedure. When Ostrander calls about a dispute with a former landlord, the interviewing lawyer says to start from the beginning and listens for forty minutes to the lease history, a missed notice, and her plan to withhold rent. Only afterward does the lawyer ask who the landlord is, and learns that it is a long-standing firm client, which now wants the firm to bring an eviction action against Ostrander. The firm walls off the interviewing lawyer, apportions that lawyer no part of the fee, and sends Ostrander written notice. The plan to withhold rent could be significantly harmful to her in the eviction matter, so the lawyer is disqualified under paragraph (c).²⁴ The screen does not save the firm. No guideline limited intake, and the lawyer collected the narrative before learning who the other side was. The first condition of paragraph (d)(2) failed, so the disqualification is imputed to every lawyer in the firm.²⁵

Hypothetical Illustration

A firm of the same size hands every prospective client a one-page form that asks only for the names of the other parties and tells the person to hold off on details. Wexler fills it out, and before the meeting goes further the interviewing lawyer checks the names and finds that the opposing party is a firm client. The lawyer begins to explain, but Wexler, eager to be heard, pours out several minutes of detail, including an admission that could be significantly harmful to him, before the lawyer can stop him. The lawyer then ends the consultation and refers him elsewhere. Wexler said far more than the lawyer asked for, and the interviewing lawyer is disqualified under paragraph (c). The first condition of paragraph (d)(2) is nonetheless met. The firm limited intake, the lawyer checked the names before hearing substance, and the lawyer interrupted when the conflict appeared. The firm may therefore turn to the screen, fee, and notice conditions.²⁶

Both interviewing lawyers ended up holding information that could be significantly harmful to the person, so the quantity of what was said cannot separate the two firms. The difference lies in what each firm did before and during the meeting, which is the variable the condition measures. A lawyer’s inability to stop a talkative person need not cost the firm its cure, while a firm’s decision to let the narrative run first can. Meeting this condition also completes only the first requirement of paragraph (d)(2). The disqualified lawyer must still be timely screened and apportioned no part of the fee, and written notice must be given to the prospective client, as the next section explains.

The ABA text is the baseline here. The New Jersey version quoted in the opinion lists a timely screen, no fee share, and prompt written notice, and no reasonable-measures condition,²⁷ so a question that names a jurisdiction calls for a check of that state’s text.

Screen, Fee, and Notice

Once reasonable measures at intake are in the record, the screening route asks the firm for three more things. Rule 1.18(d)(2)(i) requires that the disqualified lawyer be “timely screened from any participation in the matter” and “apportioned no part of the fee” from it.²⁹ Subparagraph (ii) requires that written notice be promptly given to the prospective client.³⁰ That notice tells the person that the firm has established a screen to exclude the disqualified lawyer from the matter.³¹ New Jersey’s version pairs a timely screen and no fee share with prompt written notice to the former prospective client.³² The conditions are cumulative. When all are met, other lawyers in the firm may take an adverse representation in the same or a substantially related matter. When any one is missing, the consulted lawyer’s disqualification stays imputed to the whole firm.³³

The screen answers the premise on which imputation rests. Lawyers in a firm are presumed to share what they know, so a firm that wants to rebut the presumption must put a real barrier in its place. The phrase “any participation” shows how complete the barrier must be: the consulted lawyer may not work on the matter, discuss it with colleagues, or help from the sidelines. Timing matters as much. A screen is timely when it goes up as the conflict is identified and before adverse work begins, because a wall raised after colleagues have started cannot undo what the early stages exposed. The screen also builds on intake discipline. A lawyer who heard only what was reasonably necessary has less to wall off, and a small body of confidences is easier to contain.

The fee condition does a different job, because a wall is only as reliable as the motives of the people it constrains. A lawyer who will share in the fee from the adverse matter has a financial reason to want the firm to win, and that reason pulls toward a quiet word to a colleague or a pointer before a hearing, a leak that no outsider could detect. Cutting the lawyer off from the fee removes that reason at its source, just as the screen removes the opportunity. The text ties the exclusion to the fee from the matter in question, so the money generated by the adverse work must not flow to the person who holds the confidences.

Written notice supplies what the first two conditions cannot, which is visibility. The screen and the fee arrangement exist inside the firm, where the person who confided cannot observe them. Notice carries one fact outside: the person learns in writing that a screen exists and can ask questions or object if it is breached. The word “promptly” matters for the same reason, since a letter that arrives after the matter has ended lets the person monitor nothing. Notice is separate from consent. The screening route does not require the prospective client’s agreement, so the person has no veto and is protected by information instead. The letter goes to the prospective client, not to the affected client, so a firm that has secured only its existing client’s approval has satisfied none of these conditions.

Hypothetical Illustration

Partner Hall spends an hour with a franchisee who explains that he has been underreporting sales and wants out of the franchise agreement, and Hall declines the case. When the franchisor, a long-standing firm client, asks the firm to sue the franchisee, the firm assigns the suit to Associate Imani, who works two doors down from Hall. Five months into the case, after the franchisee’s new lawyer raises the issue, the firm announces a wall around Hall. Hall’s compensation still includes a share of the fee from the suit, and nobody writes to the franchisee. Hall is disqualified under paragraph (c) because the underreporting admission could be significantly harmful to the franchisee in that suit. The wall came months after adverse work began, Hall is still paid from the matter, and no notice was sent. The screening cure fails, and the disqualification stays imputed to Imani and every other lawyer in the firm.³⁴

The first firm failed all three conditions at once, but any single failure would have produced the same result. A flawless wall raised a week after adverse work began leaves the disqualification imputed. So does a prompt wall with the consulted lawyer still drawing a share of the fee, and so does a prompt wall with no fee share and no letter to the person. Each condition guards against a different way that confidences travel or a person’s protection goes unchecked, which is why none can be traded against another.

The cure runs only to the other lawyers in the firm. The imputation sentence of paragraph (c) spreads the consulted lawyer’s disqualification to the firm subject to paragraph (d), and the screening route is the part of paragraph (d) that releases the colleagues without releasing the lawyer who heard the confidences.³⁶ The consulted lawyer stays out of the matter by the terms of the screen itself, and the duty in paragraph (b) not to use or reveal what the person said continues to bind that lawyer.³⁷ Consent works differently, because it removes the prospective client’s objection altogether and so can free the consulted lawyer as well. A student who treats a completed screen as freeing the whole firm, consulted lawyer included, has merged the two routes.