Advisory Opinion: 2045

Year Issued: 2003

RPC(s): RPC 1.9

Subject: Attorney/client relationship

The inquiring lawyer spoke with a prospective client via telephone regarding her case; however, he was not hired. He describes this conversation as “cursory, preliminary and involving non-confidential information.” One month later, the inquiring lawyer was hired by the adverse party regarding the same matter. The prospective client eventually hired another lawyer who moved for disqualification of the inquiring lawyer on the grounds that the initial phone conversation created a conflict of interest. The Court granted the motion. The inquiring lawyer seeks guidance “on what questions and/or discussions are permissible and which go too far.”

The committee opined that the relevant rule is RPC 1.9, but it only applies if an attorney/client relationship exits. If an attorney/client relationship is established, Rule 1.9 provides that the lawyer shall not “[r]epresent another person in the same or substantially related matter in which that person’s interests are materially adverse to the interests of the former client.” This prohibition is applicable even where the former client never divulged any confidences, but only consulted the attorney on the same or substantially related matter. Teja v. Saran, 68 Wn. App. 793, 800, 846 P.2d 1375 (1993).

The question of the existence of an attorney/client relationship has both a subjective and an objective component. First, the prospective client must have subjectively believed that an attorney/client relationship existed and second, the belief must have been objectively reasonable under the circumstances, including the lawyer’s words or actions. Dietz v. Doe, 131 Wn.2d 835, 843, 935 P.2d 611 (1997). The existence of such a relationship (and thus, the applicability of RPC 1.9) is a question of fact. Bohn v. Cody, 119 Wn.2d 357, 363, 832 P.2d 71 (1992).

The committee does not opine on past conduct and, therefore, will not comment on the previous experience with a prospective client who did not hire the inquirer.

In order to avoid future disputes with prospective clients the inquirer may consider making a clear statement to the prospective client about the fact that the initial interview does not establish a confidential, attorney/client relationship. The inquirer may explain procedures that have been established in the lawyer’s office for entering into an agreement for representation. Inquirer should avoid inquiring into confidential matters or giving legal advice during that initial communication. These factors have been recognized as relevant considerations in determining the reasonableness of any subjective belief of the prospective client. See Bohn, supra, 119 Wn.2d at 363-64.

The committee does not intend to indicate that compliance with RPC 1.9 and relevant case law limits the court’s discretion to grant motions to disqualify on other grounds.

The inquirer also asks about the conduct of another lawyer. The committee does not opine about such conduct.

Advisory Opinions are provided for the education of the Bar and reflect the opinion of the Committee on Professional Ethics (CPE) or its predecessors. Advisory Opinions are provided pursuant to the authorization granted by the Board of Governors, but are not individually approved by the Board and do not reflect the official position of the Bar association. Laws other than the Washington State Rules of Professional Conduct may apply to the inquiry. The Committee's answer does not include or opine about any other applicable law other than the meaning of the Rules of Professional Conduct.