QUESTION: Attorney is negotiating with a law firm for future employment. May Attorney make limited disclosure of a client’s confidential information in order to check for conflicts of interest?

ANSWER: Lawyers have an ethical obligation to protect against conflicts of interest. See Rules 4-1.7 and 4-1.9. Rule 4-1.6(b)(5) permits Attorney to reveal information relating to the representation of a client for the limited purpose of detecting and resolving conflicts of interest arising from Attorney’s change of employment, but only if doing so would not compromise the attorney-client privilege or otherwise prejudice the client. Whether the attorney-client privilege would be compromised is a question of law outside the scope of the Rules of Professional Conduct. See Rule 4-1.6, Comment [3]. A disclosure pursuant to Rule 4-1.6(b)(5) should not be made until substantive discussions about the new relationship have occurred. Rule 4-1.6, Comment [18]. Ordinarily, any such disclosure should be limited to “the identity of the persons and entities involved in a matter, a brief summary of the general issues involved, and information about whether the matter has terminated.” Rule 4-1.6, Comment [18]. Information disclosed may be used or further disclosed only to the extent necessary to detect and resolve conflicts of interest. Rule 4-1.6, Comment [19]. 

Informal Opinions are ethics advisory opinions issued by the Office of Legal Ethics Counsel to members of the Bar about Rule 4 (Rules of Professional Conduct), Rule 5 (Complaints and Proceedings Thereon), and Rule 6 (Fees to Practice Law) pursuant to Missouri Supreme Court Rule 5.30(c). Written summaries of select Informal Opinions are published for informational purposes as determined by the Advisory Committee of the Supreme Court of Missouri pursuant to Rule 5.30(c). Informal opinion summaries are advisory in nature and are not binding. These opinions are published as an educational service and do not constitute legal advice.

To request an Informal Opinion, please visit: https://mo-legal-ethics.org/for lawyers/requesting-an-informal-advisory-opinion/.

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