NUMBER 243 1926

Question. 1, A, being either plaintiff or defendant or attorney for plaintiff or defendant, asks for an interview which I grant. In the course of the interview, if it be with an intending plaintiff or his attorney, the cause of action sometimes not yet put in suit, others when suit has already been brought and issue joined, he makes to me a statement of the plaintiff’s claim or submits to me the pleadings. Up to the time of the interview, there never was any professional relationship. There is no charge for the consultation and none intended. I decline the proffer of retainer, whether it he by the plaintiff or defendant. Am I thereafter precluded from accepting a retainer from the other side, nothing being done by me to invite or suggest such a retainer, and assuming that it comes entirely uninfluenced by the circumstance that the other side has been to see me?

2. The circumstances being exactly the same as in I, save and except that I have indicated a willingness to accept a retainer, and the party litigant states that he will let me know in a day or two, and subsequently does let me know that it will be impossible for him to retain me, or does not let me hear from him at all. Am I precluded from accepting a retainer from the other side, always assuming that nothing is done by me directly or indirectly to bring about such proffer, and also that the offer of retainer is made without any knowledge on the part of the person making it that the other side has been to see me, but is immediately informed upon offering the retainer that the other side has been to see me?

3. A. an attorney, asked me to see him and a client, whose name he also gave, in order to determine whether or not I would accept a retainer. I had previously had a difficulty with this client, and I stated to the attorney that I would be willing to see him and his client on the express understanding, however, that if an agreement of retainer was not arrived at or I was unwilling to accept a retainer after hearing the facts, that it must be distinctly understood that I was not to be precluded from accepting a retainer from the other side, if one was offered to me. These terms were pronounced satisfactory by the attorney. Subsequently, a client and a brother of the attorney, also a member of the Bar, and an assistant in the attorney’s office, also a member of the Bar, called and made a statement of facts to me. It was understood that should I decline a retainer or if no retainer was agreed upon, I was to make no charge. After listening to the statement of facts and some discussion as to law between the attorneys and myself, in the presence of the client, I stated it was my opinion that the plaintiff had no cause of action. The attorneys had caused to be prepared in addition to the complaint, a statement of facts, and they, as well as the client, asked me whether I would not read the facts as stated and see whether I did not regard that there was a cause of action other than that stated in the complaint. After reading the statement of facts, I concluded that the plaintiff had no cause of action, I so wrote to the attorney. A number of months intervened. A suit was subsequently brought, not however, by the attorney who had drafted the original complaint. I am offered a retainer on behalf of the defendants. I wish to know whether, in the opinion of your Committee, it is in accord with the highest ethics of the profession to accept a retainer.


Answer. In the opinion of the Committee, in consideration of the public policy involved in the protection of confidential communications to attorneys, where a confidential communication is made in good faith to an attorney by a prospective client with a view to the attorney’s employment, the attorney should not subsequently accept employment from an adverse party in the same matter unless the first inquirer expressly consents. The attorney may, however, in the circumstances stated, accept a retainer from the second party, informed of the fact of the previous interview, if the first party, without overreaching by the attorney, either in advance (in the circumstances suggested in 3) or subsequently, expressly consents thereto.