The State Bar Association of North Dakota Summer 2015 Gavel Magazine | Page 17

consider cautioning would-be clients
against providing personal, sensitive or
detailed information until a conflicts check
can be completed. In order to prevent
disqualification when a would-be client
unilaterally blurts out sensitive information,
or when a party engages in “taint shopping”
to create a disqualifying conflict, lawyers
and law firms should make sure they have
taken reasonable measures to avoid exposure
to more significantly harmful information
than was reasonably necessary to determine
whether to represent the potential client. See,
e.g., Geoffrey C. Hazard, Ethics, The WouldBe Client, Nat’l L.J., Jan. 15, 1996, at A19
(“taint shopping describes the behavior in
which someone purporting to be seeking
legal assistance interviews a lawyer or law
firm for the purpose of disqualifying them
from future adverse representation.”).
Finally, the North Dakota Supreme Court
has invited comments on proposed changes
to Rule 1.18 which would, among other
things, substitute the term “consult” for
“discuss” and expand the comments to
explain that a person who communicates
with a lawyer for the purpose of disqualifying
the lawyer is not a potential client. See
Notice of Comment, Proposed Amendments
to the North Dakota Rules of Professional
Conduct, Supreme Court No. 20150186
( July 2, 2015). Whether the proposed
amendments are adopted or not, the risk
of potential client disqualification can be
reduced by following these tips:

substance.
6. Politely cut off would-be clients who
want to tell their whole story before conflicts
are checked.
7. Include disclaimers on the firm’s website
to avoid a misunderstanding by a website
visitor that “(1) a client-lawyer relationship
has been created; (2) the visitor’s information
will be kept confidential; (3) legal advice
has been given/or (4) the lawyer will be
p ɕٕ