Finding an attorney who is the right fit can be tough and it may mean you have to speak to more than one before you find someone you like. Have you ever wondered what happens if you decide to retain one attorney over the other or what it means when an attorney tells you they have to run a “conflict check” when you ask to speak with them? Fortunately, a 2023 case from the Superior Court has provided some guidance in this confusing area of law and helps make sense of the mysterious purpose behind that odd reference to a “conflict check.”

Last year, the Superior Court issued an unpublished opinion in the matter of Spinneweber v. Cunningham. This case came about during the midst of Tracy Cunningham’s (“Wife”) divorce from Michael Spinneweber (“Husband”). A year into the divorce process, Husband changed counsel and decided to retain an attorney that Wife later claimed she had consulted with in 2014. Believing this representation to be a conflict of interest, Wife sought relief through the court to have Husband’s new attorney disqualified from handling the pending divorce action. To support her claim, Wife alleged that, in July 2014, when Husband’s new attorney was associated with a prior law firm, Wife consulted with her about potentially filing for divorce. Wife claimed there was a conflict with the attorney now opting to represent Husband because during the 2014 consultation, she had provided the attorney with detailed information and documents concerning the parties’ marriage, business assets, and income.

The trial court held a hearing on Wife’s motion to have Husband’s new attorney disqualified. At the hearing it was admitted that Husband’s new attorney did in fact work at the prior firm in 2014. The prior firm’s records also indicated Wife was sent a fee agreement, but she never signed and returned it.[1]  While it was true Husband’s new attorney worked for the prior firm at the time, the attorney who testified for the prior firm explained it was the firm’s policy to discard any information or documentation obtained from a consultation if, within two years of a consultation, a person did not retain the firm’s services.

The trial court concluded that, while Wife consulted with Husband’s new attorney while she was at the prior firm in 2014, there was neither follow-up nor was there any further action between Wife and the firm. It was also determined that many of the documents that Wife had provided during the 2014 consultation were not confidential because they related to accounts and assets held jointly with Husband. Importantly, Husband’s new attorney also testified, noting she had no memory of the meeting with Wife or documents that were provided.

When reviewing the case on appeal, the Superior Court turned to the Pennsylvania Rules of Professional Conduct for guidance. The Rules of Professional Conduct are the ethics rules attorneys must follow in order to practice law. The primary rule the Court found was specific to the case was Rule 1.18 which dealt with prospective clients.

Rule 1.18 states, in part, that a lawyer cannot represent a client with interests materially adverse to those of a prospective client (a person who consults with a lawyer about the possibility of forming a client-lawyer relationship) for the same or a substantially related matter if the lawyer learned information from the prospective client that could be significantly harmful to that person in the case.

In applying this Rule on appeal, the Superior Court found that disqualification of Husband’s new attorney was not justified and in doing so, placed emphasis on the failure of Wife to return a signed copy of the fee agreement, the lack of an exchange of confidential or significantly harmful information (since most of it pertained to accounts in joint name), and the testimony of Husband’s attorney that she did not remember the meeting. With this understanding, the conclusion the Superior Court reached could have been very different if Wife had retained the firm, provided material information Husband would not have known about during the meeting, or the attorney had remembered the meeting and/or still had access to the meeting notes.

Circling back to the “conflict check” referenced earlier, this case is an example of why attorneys request information pertaining to the other person(s) in a dispute.

When an attorney asks to run a conflict check, they are doing so in order to make sure their firm has not represented parties with interests adverse to yours in the past. This is not only an obligation under the Pennsylvania Rules of Professional Conduct, but a sign they take confidentiality seriously.

Just remember, to be owed that confidentiality a short, general conversation may not be enough. It is important to read the terms of the fee agreement offered to you and to set expectations with the attorney early on. If you are not sure whether your meeting qualifies you as a prospective client, feel free to ask.  

[1] This fact is important as the fee agreement had language that provided representation did not start until the signed agreement was returned.