By Katie Parker
A frequent scenario: an attorney meets with a potential client about a matter, but then for any number of reasons they don’t end up forming an attorney-client relationship. Unsurprisingly, that meeting can potentially disqualify the attorney from representing another party to the matter they discussed. Two recent Court of Appeal decisions flesh out the parameters of the duties an attorney owes to a prospective client and provide guidance for lawyers to follow in client intake meetings.
The Rule
California adopted ABA Model Rule of Professional Conduct 1.18, titled “Duties to Prospective Client,” in 2018. The rule defines a “prospective client” as a person who “directly or through an authorized representative, consults a lawyer for the purpose of retaining the lawyer or securing legal service or advice from the lawyer in the lawyer’s professional capacity.” CPRC 1.18(a).
In subsection (b), the rule provides protections against the use of confidential information obtained by an attorney during an initial consultation. And then the rule goes further, and states that a lawyer “shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received from the prospective client information protected by Business and Professions Code section 6068, subdivision (e) and rule 1.6 that is material to the matter.” (Bus. & Prof. Code 6068(e) and RPC 1.6 both encapsulate the prohibition on disclosing client confidences). The disqualification due to information received from a prospective client extends to the receiving attorney’s entire firm: “If a lawyer is prohibited from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter.” RPC 1.18(c).
The rule includes several exceptions to disqualification: where both the prospective client and current client consent in writing, or where the prohibited lawyer took reasonable measures to avoid obtaining more information than needed in the initial meeting and is then walled off from the matter including not taking any part of the fees for the matter. RPC 1.18(d).
The Court of Appeal Decisions
After six years with no published decision interpreting Rule 1.18, the Court of Appeal issued two such decisions in the past nine months.
First, in Syre v. Douglas (2024), 104 Cal. App. 5th 280, the court addressed a 1.18 disqualification motion in a quiet title action. The parties were both relatives of a deceased property owner, and the plaintiff contacted California Indian Legal Services (CILS) about potential representation. Plaintiff did not qualify for CILS’s services, so she retained other counsel and filed the quiet title action about a year later. Defendant retained CILS to defend him, and when CILS reached out to plaintiff’s counsel, plaintiff’s counsel raised the possible 1.18 disqualification issue arising out of plaintiff’s pre-filing consultation with CILS. The trial court denied the disqualification motion, and the appellate court affirmed. Key factors in this result were: plaintiff spoke only with a non-attorney intake staff member at CILS; the only confidential information she provided was financial information, which was needed to determine her eligibility for CILS’s legal services; and, the other information she provided was preliminary information about the nature of the dispute, and would have been disclosed in the pleadings. A key factor was also that CILS is a “public law office.” The court noted that disqualification is applied more leniently to publicly funded nonprofit legal services, given the unique financial, societal, and public policy factors at play.
Then last month, in the second published opinion, the trial and appellate courts applied Rule 1.18 in the private law firm context, and found disqualification warranted. Winter v. Menlo (2025), 110 Cal. App. 5th 299, involved probate court trust litigation. As in Syre, the future plaintiff contacted an attorney, this time a partner at an international law firm. In their email exchange, the plaintiff asked the attorney whether he would be conflicted out in litigation against defendant. The attorney replied that there was no conflict, and the email exchange continued to a discussion of theories of the case, case-related documents, the trustee’s health, and potential undue influence. The attorney then conducted an additional conflict check and determined that the defendant was a former client, so he couldn’t represent the plaintiff in the matter. When plaintiff found new counsel and sued defendant, defendant retained that same law firm partner who had an email discussion with the plaintiff. Plaintiff successfully moved to disqualify that law firm partner and his entire firm from the probate court matter. Key to this decision was the attorney’s email discussion with the potential client “went beyond the ‘preliminary information’ about the ‘issue’ in the case.” Winter, 110 Cal. App. 5th at 317 (quoting Syre, 104 Cal. App. 5th at 299).
Takeaways
These two appellate decisions resulted in clarification of the standards applicable to Rule 1.18 disqualification motions, as well as takeaways for all attorneys as they navigate the potential conflicts that can arise from a client intake meeting:
- What makes information “material” under Rule 1.18? The Winter court undertook a thorough analysis and concluded that “material” in this context means “materially harmful.” 110 Cal. App. 5th at 315. The court rejected a broader definition of “material” that would encompass all information “at issue in the case or of critical importance.” Id. at 312.
- When is materiality evaluated? The Winter court answered this question as well, holding that materiality is evaluated at the time of the disqualification motion. This holding recognizes that previous confidences can become immaterial due to subsequent events, like the filing of a complaint. Id. at 311-312.
- Attorneys considering moving for disqualification under rule 1.18 should take into consideration the private firm/legal non-profit distinction; disqualification of a nonprofit is less likely because of the equitable considerations discussed in Syre.
- Use of non-attorney, client-intake staff to review initial information and check for conflicts can help prevent future conflicts and disqualification, as this factor was important in the Syre outcome.
- Attorneys meeting with potential clients should take all measures possible to check for conflicts before engaging in detailed discussions and should attempt to limit the discussion to information reasonably necessary to determine whether to undertake representation. The attorney who was disqualified in Winterattempted to rely on the potential client’s disclosure decisions in opposing the disqualification motion, but the court said: “the burden is on the attorney to ensure the prospective client shares only as much information as necessary to conduct a conflicts check and nothing more.” Winter, 110 Cal. App. 5th at 320.
As emphasized in Winter, the duties owed to a potential client and disqualification when those duties are implicated at times necessitate disqualification, despite the financial impact. The court there found disqualification warranted to “maintain ethical standards of professional responsibility and preserve the scrupulous administration of justice and the integrity of the bar.” 110 Cal. App. 5th at 321.