Saturday, February 28, 2009
A public censure approved by the Colorado Presiding Disciplinary Judge was imposed as agreed-upon discipline of a Denver City Attorney who had spoken to a police officer who had pulled her fiancee over for speeding shortly after the incident. The summary indicates that the disciplined attorney "spoke to [the police] officer without adequate reflection or concern about her position as a public official, and without adequate care for the effect talking to the officer would have on the administration of justice"
A news report indicating that the attorney has resigned and the police officer disciplined is linked here. An earlier news report indicating that the attorney had been reprimanded for misusing her position when confronted by an animal control officer is linked here. (Mike Frisch)
The Florida Supreme Court has rejected the Bar's proposed amendments to the rules that regulate attorney/law firm web pages. The court noted that the issues had received "dedicated study and vital debate" from the Bar. The proposed amendments, among other things, would have exempted from general advertising regulations information found by clicking on a main page link. Such information would have been deemed to be "on request" of the prospective client. The court noted that the "history of regulating computer-accessed lawyer advertising is a study in contrasts." However, the court concluded that the "proposed amendments are not sufficient to make material behind the home page to be treated as on request" for regulatory purposes. The court indicates that a "two click'' approach to web pages, requiring a second user click, to treat the information as "on request."
There are two concurring and a concurring/dissenting opinion to the court's order. In light of concerns expressed in a concurring opinion about the use of testimonials, that issue also was referred to the Bar for further study. (Mike Frisch)
Friday, February 27, 2009
The Virginia State Bar web page reports the following license action against a former Assistant Dean of Regent University Law School:
On February 27, 2009, the Virginia State Bar Disciplinary Board summarily suspended Stephen Lee McPherson's license to practice law, based on his guilty pleas on January 23, 2009, in Chesapeake Circuit Court to four sexual crimes. The board ordered Mr. McPherson to appear on March 27, 2009, to show cause why his license should not be further suspended or revoked.
The criminal charges are reported here. (Mike Frisch)
A district committee of the Virginia State Bar Disciplinary Board held that a public dismissal de minimus was the appropriate disposition of a client's complaint against the attorney retained to defend her against criminal charges of malicious wounding. The client came to the lawyer's office on a Saturday to discuss the case. She was very upset about the prospect of jail time and its impact on her. The lawyer took advantage of the situation by taking "modeling" photographs of the client. The photos, according to the disposition, were inappropriate to the lawyer-client relationship but not pornographic in nature. While inappropriate, the photos did not have an adverse impact on the client's matter. (Mike Frisch)
An Illinois Hearing Board has recommended a four-month suspension based on findings of dishonesty by an attorney who "moonlighted" while employed by a firm. The charges arose from circumstances described in the board's report:
Respondent was employed as an associate in the spring of 1998 at Altheimer & Gray and then as a non-equity partner for approximately five months until the firm dissolved on June 30, 2003. Respondent concentrated his practice at Altheimer & Gray in estate planning. Respondent provided accounting and legal services to clients while he was employed at Altheimer & Gray as an individual and not as a lawyer of the firm, which the Administrator referred to throughout the ARDC hearing as his "moonlighting business." Respondent received income for those services.
In July 2003 Respondent submitted an application to the law firm of Holland & Knight LLP and Holland & Knight LLC ("Holland & Knight"). Respondent did not disclose the existence of his moonlighting business or the clients from his moonlighting business on the application. Respondent also prepared and attached altered versions of his federal income tax returns for 2000, 2001 and 2002 to the application, which displayed only the income he had received from Altheimer & Gray and omitted the income he had received from his moonlighting business.
Respondent was employed as a senior counsel in the Private Wealth Services group of Holland & Knight from August 1, 2003 to May 13, 2005. Respondent entered into an employment contract with Holland & Knight entitled "Senior Counsel Agreement" which provided that Respondent was to devote his full time and attention to the practice of law, not undertake or continue any representation except in accordance with Holland & Knight practices and procedures and that all client income with respect to Respondent's service as an employee of Holland & Knight was the property of the firm. The agreement also acknowledged Respondent's receipt of a copy of Chapter 6 of Holland & Knight's office manual which stated that employment could not be accepted until a conflicts check was conducted for the client and the opposing party and that all compensation for all services performed by a firm lawyer were the property of the firm.
Respondent continued to conduct his moonlighting business while he was employed at Holland & Knight; Respondent provided accounting and legal services to clients individually, not as clients of the firm. Respondent received income for those services directly from the clients. Respondent also co-owned and co-managed residential apartment buildings with Sean Gallagher under the Caulfield Realty Group LLC ("Caulfield LLC") and formed Caulfield Realty and Management Company ("Caulfield Co.") with Mr. Gallagher while he was employed at Holland & Knight. Respondent performed all of the accounting and tax work for the companies and did not disclose his interest in Caulfield LLC or Caulfield Co. to Holland & Knight.
In early May 2005, Respondent gave notice to Holland & Knight of his intent to terminate his employment with the firm on May 13, 2005. Respondent was informed of the approval procedure necessary to obtain a copy of his computer documents. On May 13, 2005, Respondent caused over 400 documents to be exported from Respondent's computer at Holland & Knight to his personal computer at his residence. Respondent did not seek approval or otherwise comply with Holland & Knight's procedures for removing electronic copies of the documents.
The board majority found that the accused lawyer had breached fiduciary obligations in some but not all charged respects. The moonlighting was not dishonest:
We do not find Respondent breached his fiduciary duty to Holland & Knight by preparing individual tax returns for his moonlighting clients because the preparation of tax returns is primarily an accounting function and the evidence presented showed Holland & Knight did not provide that type of service to its clients. Mr. Gelman testified that no attorneys in the Private Wealth Services group at Holland & Knight prepare individual income tax returns for clients. Mr. Kinasz also admitted that he does not actively promote the preparation of tax returns as part of his practice, but testified that attorneys in the tax team at Holland & Knight prepare tax returns similar to the types of tax returns Respondent prepared in his moonlighting practice. However, we conclude from Mr. Kinasz's testimony that he does not regularly prepare tax returns as a part of his practice at Holland & Knight, but as a favor to a few of his longstanding clients.
We also find Respondent's management of Caulfield Realty Group, LLC and Caulfield Realty and Management Co. did not breach his fiduciary obligations to Holland & Knight. Respondent's involvement in Caulfield LLC and Caulfield Co. during the time he was at Holland & Knight was for his own investment purposes. Respondent and his partner, Mr. Gallagher, both credibly testified that Respondent did his share of the work to manage the buildings they own under Caulfield on the nights and weekends.
The dishonesty findings related primarily to the computer-related conduct. A dissenting member would find additional misconduct and impose a one-year suspension. (Mike Frisch)
An Illinois Hearing Board concluded that work performed by a suspended lawyer involved practice of law in violation of the court's suspension order. The board's crucial findings of fact:
...we find that Respondent practiced law while he was suspended. The facts of this case are essentially undisputed. Respondent was suspended from the practice of law between November 7, 2005, and February 7, 2006. Prior to the effective date of the suspension, he arranged for [another lawyer] O’Connor to handle some of his cases, including the Kotek
appeal. Respondent represented the plaintiff-appellants in that matter, and their appellate brief was due to be filed on January 17, 2006. Sometime in January 2006, Respondent began drafting the brief. Respondent based the brief on documents he had previously filed in the circuit court. He felt he was in a better position to write the brief than O’Connor because the case involved complex legal and factual issues, and it would take O’Connor too long to become familiar with the record. Respondent completed three or four drafts of the brief before he gave a copy to O’Connor for his review and approval.
On January 10, 2006, Respondent met with O’Connor to review the brief, and they discussed how to preserve an issue in the appeal that the circuit court had not addressed. After discussing the matter, they agreed to include the issue in a footnote. Respondent added the footnote to the brief, made copies, and filed it.
Respondent and O’Connor mistakenly thought the brief was due to be filed on January 18, 2006, instead of January 17, 2006. Accordingly, when Respondent tried to file the brief on January 18, 2006, he needed a motion to file the brief instanter. Respondent drafted the motion and an affidavit for O’Connor to sign. On January 19, 2006, Respondent discussed the appeal with Carlson, the attorney for the defendants-appellees. He also told Carlson that he struggled with how to address the issue he included in the footnote.
Drafting an appellate brief requires the practice of law. Contrary to Respondent’s argument, the appellate brief was not simply a different version of his circuit court pleadings. In fact, Respondent’s own testimony contradicts this argument. He stated that he spent 15 to 20 hours drafting the brief and completed three or four drafts of the brief before giving it to O’Connor. Further, even a cursory comparison of the motions and the appellate brief reveals that Respondent added significant legal arguments to the brief, which included citations to case law that were not in the circuit court motions. These facts establish that Respondent used legal skills and knowledge to identify the legal issues, conduct legal research, and apply the case law to the facts of his case. This is the essence of practicing law.
Moreover, Respondent discussed a significant legal issue with O’Connor. Respondent admitted, and O’Connor testified, that they discussed the strategy of how to address an issue in the appellate brief that the circuit court failed to address. The discussion centered on how to preserve the issue for review. After they decided to address the issue in a footnote, Respondent drafted it. We conclude that a discussion involving the preservation of an issue for review involves the practice of law because it required the use of legal knowledge and the skill to apply legal principles. Additionally, Respondent drafted a motion for leave to file the brief instanter and an affidavit. For the reasons similar to those already stated, we conclude that Respondent was practicing law when he drafted the motion and affidavit.
Respondent argues that a finding that he practiced law would have an adverse impact on the legal profession because he did nothing more than paralegals and law clerks do at law offices throughout Chicago. We decline to accept Respondent’s extrapolation of our findings. We are not breaking new ground by finding Respondent practiced law. We are simply applying well-established case law to the facts of this case. Respondent was not a law clerk or a paralegal. He was a suspended attorney.
The attorney had been suspended for making an illegal campaign contribution. The board here proposes another three-month suspension. The Adminstrator had sought a one-year suspension. The board found that the conduct was the product of a mistaken belief rather than fraud or dishonesty. (Mike Frisch)
We recently discussed a Maryland case finding that a former client, counterclaiming in response to an action for legal fees, properly stated a breach of contract claim based on the representations made in the lawyer's retainer agreement.
The Arkansas Supreme Court affirmed the dismissal on statute of limitations grounds of an action brought after the lawyer allegedly mishandled the appeal of a dismissal in a wrongful death action. The court found that the gist of the action was that the lawyer had failed to act diligently. Thus, the three-year legal malpractice statute applied rather than the five-year statute for breach of contract. As a result, the suit against the lawyer was time-barred. (Mike Frisch)
Thursday, February 26, 2009
The Michigan Attorney Grievance Administrator has filed a formal complaint alleging that the chief prosecutor for the Wayne County major drug unit offered knowingly false testimony throughout a criminal matter by concealing the informant status of a crucial state witness. It is further alleged that the prosecutor knowingly made false closing and rebuttal arguments based on the evidence. The jury convicted one defendant and was unable to reach a verdict and hung with respect to a second defendant. As to the convicted defendant, the prosecutor's office confessed error and the case was remanded for a new trial. The other defendant was convicted at his second trial.
The Michigan Court of Appeals affirmed the conviction but noted the misconduct of the prosecutor in the first trial. (Mike Frisch)
Those of us who are responsible for enforcement of rules governing student discipline may find a recent decision of the Oregon Court of Appeals of interest. The student conduct at issue is described in the court's opinion:
The relevant facts are not in dispute. Petitioner was a student at PSU [Portland State University] beginning in fall 2001. During his time there, he rented a dormitory room in the Ondine student housing facility. While living in the Ondine, petitioner had had contact with the assistant director of residence life (assistant director) on multiple occasions regarding petitioner's conduct, including a July 2004 flooding incident in the Ondine for which petitioner was believed to have been responsible. The assistant director, who oversaw issues relating to conduct in student housing on the PSU campus, was required to live on campus as part of his job, which he did with his partner and their young child.
In September 2004, petitioner told two acquaintances that he wanted to kill or harm the assistant director and his family, stating specifically that he knew where the assistant director and his family lived, and that he wanted to take a baseball bat or a Mossberg shotgun to the assistant director's knees. On previous occasions, petitioner had shown both acquaintances guns and ammunition that he kept in his room. Several days after making those statements, petitioner instigated a physical altercation with the two acquaintances on an unrelated matter. In reporting that incident to a PSU public safety officer, the acquaintances reported petitioner's comments about the assistant director and his family to the officer and to the director of residence life, telling them that they were afraid for the assistant director's and their own safety. Soon after, the director of public safety at PSU and the dean of students told the assistant director about the comments that petitioner had made and recommended that the assistant director and his family live off campus for a few days. The assistant director agreed, moved his family to an undisclosed location, and obtained a temporary restraining order against petitioner.
The court concluded that expulsion from school on the above facts was justified:
We cannot say that PSU officials acted unreasonably in responding as they did to petitioner's stated desire to harm or kill the assistant director and his family. Consequently, the statement did disrupt PSU activities. Furthermore, we cannot identify a relevant privilege or principle that would operate to prevent PSU from expelling petitioner as a student for causing that disruption. Hence, we conclude that PSU did not violate Article I, section 8, by finding in charge 4 that petitioner's statements about his desire to harm or kill the assistant director and his family disrupted PSU activities.
The New York Appellate Division for the Third Judicial Department imposed reciprocal censures of two law firm partners based on sanctions imposed in Maryland. The law firm had its primary office in Pennsylvania. The lawyers:
...operated a high volume practice in multiple states prosecuting motor vehicle warranty and "Lemon Law" civil claims. in 2004, the firm hired an attorney admitted in Maryland to establish and operate a satellite office in that state. The subordinate attorney neglected client matters leading to dismissals in 47 cases with prejudice. The Court of Appeals of Maryland then indefinitely suspended [the supervising lawyers]...with a right to apply for reinstatement after 90 days.
Noting that the attorneys were never admitted in Maryland, the court here found that censure was the appropriate reciprocal discipline. The lawyers had acknowleged the misconduct and expressed remorse. The court also noted that the subordinate attorney "had failed to follow firm procedures which would have alerted [the attorneys] to the misconduct and enabled them to take timely preventitive measures."
I don't buy into the last part. When you give a freshly-minted lawyer more work than can possibly be competently done, the problem cannot fairly be ascribed to a failure to follow procedures.
The Maryland decision in the case is linked here. (Mike Frisch)
The New Jersey Supreme Court remanded to its Committee on Attorney Advertising an issue whether a trade name was vague and misleading. The petition for review of the committee's determination was filed by Alpha Center for Divorce Mediation, P.C. The committee had concluded that the name violated New Jersey advertising rules. While the court here noted an "aversion" to the use of trade names by law firms, it remanded for a more complete record to help "resolve the critical issue of a First Amendment challenge to a Rule of Professional Conduct that reflects the Court's long-held and decided preference to adhere to the use of an attorney's name in the official designation of a law firm, subject to the exception for the use of trade names by 'not-for-profit legal services organizations'."
The committee is directed to "include a full explication of the pros and cons" of any resulting proposals for or against rule revisions. (Mike Frisch)
From the web page of the Ohio Supreme Court:
The law license of attorney Fred J. Burkholder, who formerly practiced in Lucas County and currently resides in Massachusetts, has been indefinitely suspended by the Supreme Court of Ohio. Burkholder’s license has been under an interim suspension since April 2007 for failure to comply with a child support order. Since then he has been subject to additional suspensions for failure to complete state attorney registration requirements and for violating the terms of a previous stayed suspension by being convicted of domestic violence while residing in Massachusetts.
In today’s decision, the Court adopted findings by the Board of Commissioners on Grievances & Discipline that the conduct resulting in Burkholder’s criminal convictions also constituted violations of the state attorney discipline rules that prohibit illegal conduct involving moral turpitude and conduct that reflects adversely on an attorney’s fitness to practice. The Court also agreed with the board’s recommendation of an indefinite suspension as the appropriate sanction for this misconduct and for [his] failure to register as an attorney at his current address.
Taking note of medical testimony that alcohol dependency was a significant factor in Burkholder’s misconduct, and evidence that he has resumed compliance with his child support obligations, maintained sobriety and continues to participate in an ongoing recovery program and psychiatric treatment, the Court adopted the disciplinary board’s recommendation that the effective date of his indefinite suspension should be made retroactive to his April 16, 2007, interim suspension.
The decision is linked here. (Mike Frisch)
The Pennsylvania Supreme Court ordered a stayed two-year suspension, probation for four years, and monthly restitution payments of $5,000 in a matter where the attorney had represented a retired police officer in a dispute over pension benefits. The attorney took no action for several years after writing a single letter. He concocted a false story that had the client and his wife come to the courthouse for proceedings that did not exist and conveyed "imaginary' settlement offers. When he finally filed a complaint, the statute of limitation had run.
After a second contrived meeting, the lawyer told the client's wife that her husband "would have a 'green' Christmas" for 2003. The client died in January 2004. The lawyer's subterfuge continued until 2007, when the surviving spouse learned the truth. She sued for malpractice and obtained a judgment payable in 48 installments of $5,000 per month. The lawyer had not apologized to her prior to the bar hearing but was "ashamed of his actions."
The Disciplinary Board found the misconduct "inexplicably callous and insensitive, besides being downright dishonest." But, the restitution obligation can only be satisfied if he practices law: "[t]he only way [he] can make the payments is to be gainfully employed." Thus, the board concludes, the victim "would suffer harm for a second time" if the lawyer were suspended and defaulted on his obligations under the civil judgment. (Mike Frisch)
As if in response to the last post, the Pennsylvania Supreme Court imposed an 18 month suspension of an attorney who had neglected multiple matters and misappropriated advanced fees that he did not earn. The court adopted the Disciplinary Board's view that, while disbarment would be the norm, sanctions are determined on a case-by-case analysis and that mitigating factors such as remorse and repayment merited a lesser the sanction. The board concluded that the requirement that the attorney demonstrate present fitness for reinstatement provided sufficient protection to the public. One board member had dissented and favored a three-year suspension. (Mike Frisch)
The District of Columbia Court of Appeals adopted a strict rule virtually mandating disbarment in all case of intentional or reckless misappropriation in its 1990 en banc decision in In re Addams, 579 A.2d 190. The volunteer disciplinary system and the Bar in general has never like the Addams rule. A case decided today by a division of the court imposes disbarment in a matter where the attorney had deliberately taken his fee from a modest estate without required court authority. The Board (report attached to the court's decision) expressed concern that disbarment might be an unjust disposition under the circumstances but acknowleged that Addams was controlling for sanction purposes.
The court felt that the Board on Professional Responsibility "without expressly saying so, sees this as a case that invites reconsideration of Addams" and noted that a division (three judges) of the court is not free to do so. Judge Ferren, who had concurred in the Addams result) urges reconsideration of the Addams decision. He views the holding as a "vitually non-rebuttable" disbarment presumption that fails to provide a meaningful case-by-case sanction analysis:
I have no sympathy for lawyers who intentionally misappropriate funds. I agree that the public deserves protection against them--a protection supplied, initially, by the presumption of disbarment announce prospectively in [a pre-Addams case] and reinforced in Addams. Once that presumption is in place, however, I believe that this court should return to...reliance on a case-by-case factual analysis.
As somewho who was at Bar Counsel when Addams was decided and saw the need for a strict rule in misappropriation cases, I will watch with interest to see if the court (the composition of which has almost entirely changed since 1990) is prepared to take this issue en banc. (Mike Frisch)
Wednesday, February 25, 2009
The New Jersey Appellate Division declared unconstitutional a media and public relations policy as applied to a detective employed by the Waterfront Commission of New York Harbor. The detective had been disciplined for his contact with a television reporter in which he disclosed an "allegedly unsafe and hazardous condition at [the detective's] workplace arising from the presence of dead rats in what [he] believed to be a contaminated three-year-old pile of dirt in the Commission parking lot." The detective had been suspended for 10 days without pay. (Mike Frisch)
From the web page of the Ohio Supreme Court:
The Supreme Court of Ohio today imposed civil penalties totaling $50,000 and issued an injunction prohibiting Senior Estate Planning Services of America, Inc. (SEPSA) of Blue Ash and company owner Robert D. Tanner, Jr. from marketing and selling legal instruments prepared by persons not licensed as attorneys and from engaging in any other future acts that constitute the unlicensed practice of law.
The Court’s unanimous per curiam decision affirmed a summary judgment issued by the Board on the Unauthorized Practice of Law finding that SEPSA and Tanner violated the state bar governance rules that restrict the practice of law to persons who have met the requirements for licensure as attorneys and have been admitted to practice in this state. The Court noted that while customers responding to SEPSA’s advertisements for estate-planning services were directed to an attorney employed by the company, the attorney was paid by the company rather than by the customer, and did not provide customers with independent estate planning advice but instead received a $500 commission from SEPSA for each customer that purchased one of the company’s living trusts. (The attorney, Daniel Heisler, has since been sanctioned by the Supreme Court in a separate disciplinary action).
In adopting the board’s recommended sanction of a maximum $10,000 civil penalty for each of five proven instances of unauthorized practice, the Court noted that SEPSA and Tanner did not cooperate with the investigation of their conduct, continued to run an Internet ad for their services after assuring authorities that they had ceased doing business in Ohio, committed multiple violations, and acted in flagrant disregard of prior Supreme Court decisions dating back to 2002 in which the Court has consistently condemned living-trust marketing schemes virtually identical to SEPSA’s business model.
The Court concluded that, “by selling these products without having to comply with the ethical standards established by a lawyer’s duty to safeguard client interests, respondents profited at the customers’ expense, creating an incalculable risk to the customers’ financial resources and future.”
The court's opinion is linked here. (Mike Frisch)
The New York State Commission on Judicial Conduct has censured a judge of the Monroe County Family Court who had, according to the commission's news release:
...ordered her secretary to perform babysitting duties on several occasions for her two young children. [The judge] also required her secretary to perform personal typing duties for her husband and to access a confidential court database to get information for the judge's husband.
The commission's decision is linked here. The confidential secretary had been "very close friends" with the judge for 37 years and had provided uncompensated babysitting help for the judge, as well as typing for the husband, prior to her election. The judge's children called her Aunt Kimmy. After assuming office, the judge hired the friend and "wrongly believed" that personal chores went with the job. The judge fired the secretary after learning that the outside help was improper and that the secretary had surreptitiously recorded a conversation on the subject. The now-former friend sued the judge in federal court for retaliatory discharge. The civil suit settled without admission of liability. (Mike Frisch)
Tuesday, February 24, 2009
[Posted by Bill Henderson]
Based on this announcement, the study of the legal profession as a substantive area of research appears to be gaining traction:
The Center for the Study of the Legal Profession at Georgetown University Law Center (CSLP) invites applications for the position of Research Fellow for the 2009-2010 academic year. The Fellow will be based at Georgetown Law Center and will collaborate with CSLP leadership on new and ongoing empirical projects of the Center, as well as pursue her/his own independent research relating to the legal profession. Research Fellows are invited to participate in CSLP and Law Center activities, including those directed to students and to the research community.
CSLP promotes interdisciplinary scholarship on the profession informed by the challenges of contemporary legal practice; participates in the debate about regulation of the legal profession, both in the US and internationally; and investigates the role of globalization as it relates to the profession generally, law firms and other practice organizations and legal education. Our current projects include a wide-scale survey of Georgetown law graduates, including international graduates; a symposium on the future of the global law firm (fall 2009); an interview research project exploring how formal policies and informal norms shape law firm culture; and a conference on US approaches to regulation of the legal profession in the wake of changes in foreign regulatory structures governing lawyers. CSLP also aims to provide students with a sophisticated understanding of the opportunities and challenges of a modern legal career and to furnish members of the profession, particularly those in organizational decision-making positions, with rigorous research that provides broad perspectives on trends and developments in practice. For more information on CSLP and its activities, please review our website.
Applicants must have earned a JD or its equivalent and/or have earned or be working on a PhD in a relevant discipline (including sociology, economics, political science, business, anthropology). In addition, applicants must have expertise in qualitative or quantitative empirical research. To apply for the position, please submit a CV and a statement (3 pages maximum) describing your educational background, empirical research skills and experience, and research interests, and explaining how your background and interests relate to the activities of CSLP. Please also address how the position fits into your overall career goals.
We will begin reviewing applications in March and will continue until the position is filled. The Research Fellow will be appointed to a twelve-month term beginning in the summer of 2009.
The Research Fellow will earn a stipend of $62,500 plus benefits.
Please submit your application by email to Carole Silver. No phone inquiries, please.
The District of Columbia Bar Legal Ethics Committee opines on confidentiality obligations to a prospective client where the communication comes from a lawyer exploring possible referral of the matter rather than direct communication with the prospective client:
When a prospective client consents to having a lawyer speak to a second lawyer on his behalf regarding the possibility of establishing an attorney-client relationship, the second lawyer has an obligation under Rules 1.6 and 1.18 to treat the communication as confidential, even if the second lawyer never speaks directly with the prospective client.
Given the importance of maintaining confidentiality of any information received by the first lawyer, it is advisable that the first lawyer disclose at the outset of the conversation with the second lawyer that the purpose of the discussion is to consider taking on a new case for someone, and to limit initial disclosures to the essential facts until it can be determined whether the second lawyer has a conflict of interest.