ED Mo examines impact of Rule 1.18 where opponent chatted with counsel before suing: Dalton v. Painters Dist. Council No. 2

State ex. rel Dueker, 346 S.W.3d 390, 396 (Mo.Ct.App. Aug. 9, 2011), would win my nod as one of the most important Missouri legal ethics cases of 2011. It is, after all, the first case to hold a potential client can meet in person with a lawyer, and pay the lawyer for a meeting, but not end up a client.

In Dalton v. Painters Dist. Council No. 2, 2012 WL 234647 (E.D.Mo. Jan. 25, 2012), previously disqualified counsel asked the District Court to reconsider its disqualification order in light of Dueker. Apparently counsel hoped Dueker would lead to a different result. Application of Rule 4-1.18 does not bring a different result, but it does help us see what facts are important.

The Dalton court had previously found the plaintiff a former client, and disqualified the union's counsel under Rule 4-1.9 where she had discussed alleged harassment with the firm, then brought a claim for violating the duty of fair representation.

Applying instead the prospective client Rule 4-1.18 as in Dueker, the District Court reached the same result, that her chat with the law firm prevented it from representing the union. The District Court in Dalton made supplemental findings and explained, “Plaintiff contacted [the firm] to obtain legal advice, that she advised the lawyers of the facts of her claim and the nature of her claim, and . . . the [the firm’s] lawyers in fact gave her legal advice regarding her claim. That they thereafter, belatedly, advised her that they could not represent her in a dispute between union members does nothing to change this.”

The District Court also found the plaintiff’s remaining unfair representation claims were too closely related to the harassment claims she had discussed with the law firm. Thus, the law firm would not be permitted to represent the union against the unfair representation claims, despite the less severe imputation of conflicts under Rule 4-1.18.

Dalton and Dueker show that the factor is the nature of the communications. Here, unlike Dueker, the client did not meet the lawyers in person or pay for the meeting. Yet the court still found a prospective client relationship, one that caused the firm to be disqualified from representing an adversary.