Question

I recently interviewed with a company to represent it in a litigation matter, but I was not chosen as counsel. I have now been contacted by the opposing party to assist in the litigation. May I represent the opposing party?

Answer

Deciding whether you can represent the opposing party in this litigation depends on the amount and type of information you learned during your interview for possible representation of the company. The company is considered a prospective client, and the requirements of SCR 20:1.18 apply. SCR 20:1.18 is a relatively new supreme court rule that addresses the duties an attorney owes to a prospective client when the attorney is not retained (or decides not to be retained) to represent the client.

Generally speaking, if the lawyer learns confidential information during the interview that would be considered “significantly harmful” to the prospective client, the lawyer is allowed to represent the opposing party only under very limited circumstances. Deciding what information is significantly harmful is a case-by-case determination. The Committee on Professional Ethics has provided guidance in Formal Opinion EF-10-03, “Conflicts Arising From Consultations With Prospective Clients; Significant Harmful Information,” which may help in determining whether the information learned during the interview process would be considered significantly harmful to the prospective client (here, the company).

If, during the interview process, the lawyer did not learn any information relating to the representation other than the nature of the lawsuit being brought against the company, it is highly likely that the attorney could engage in representing the opposing party without a conflict of interest and without needing to obtain any waiver of a conflict. The mere fact that the company interviewed the attorney does not create an attorney-client relationship. Even if the attorney were not selected to represent the company, the existence of an attorney-client relationship would prohibit the attorney from representing the opposing party.

Much depends on the amount of information learned during the interview process. In many situations, the interview process involves a discussion about the attorney’s experiences handling similar cases and some general discussion about the nature of the case but not a discussion about the facts and background of the specific matter. The company’s lawyer or other representative conducting the interview might want to limit the conversation to a general statement about the case and not discuss strategy or background information about the company’s position if it is not certain that the attorney being interviewed will be retained to represent the company.

The requirements of SCR 20:1.18 allow some opportunity for representation of an opposing party even if detailed information about the litigation matter is divulged during the interview, if the attorney being interviewed is screened from any participation in the representation of the opposing party and proper notice is given to the company so that it can object to the representation. This option would probably only be exercised in unusual circumstances, that is, when the opposing party’s law firm does not need the attorney who interviewed with the company to provide assistance in representation of the opposing party and thus may exclude the attorney from the work. The law firm must ensure that the attorney involved in the interview is in no way involved in the representation of the opposing party.

The mere participation in an interview with a potential client does not preclude an attorney from representing the other side in pending litigation. A factual determination will need to be made as to whether the attorney has acquired significantly harmful information, knowledge of which requires the attorney to take further steps before seeking to represent the opposing party.