Rachel,
Thank you for sending along the draft declination letter dated May 15, addressed to Terrence Whitfield at MTDC (550 West Harrison Street, Suite 1400, Chicago, IL 60607). I've reviewed it carefully. The letter is generally well-structured, and the overall approach is sound, but it requires several modifications before we can send it out. I'm attaching my redline, but I want to walk through the key points here so that the reasoning behind each edit is clear.
**Overarching Concern: Protecting the Confidentiality of the Existing Client Relationship**
The central issue is that the letter as currently drafted contains enough detail to allow a sophisticated reader — and Whitfield is certainly that — to identify or deduce the identity of our existing client and the nature of our engagement for that client. Our duty of confidentiality under the Illinois Rules of Professional Conduct means we cannot reveal to MTDC who the conflicting client is, what type of matter we handle for that client, or anything about the subject matter of the existing engagement. The letter must state only that we have identified an unwaivable conflict of interest that prevents us from undertaking the representation. Nothing more.
With that principle as the guide, here are my specific comments, roughly tracking the letter's structure:
**1. "Technology vendor" / "biometric workforce management" language (¶2).** The second paragraph references the conflict as arising in connection with "a technology vendor involved in biometric workforce management." This is far too specific. Whitfield knows MTDC's vendors. This language would allow him to readily identify our client. Please remove any reference to the type of client, the industry, or the subject matter of the existing engagement. Replace with generic language — "an existing client relationship" or "a pre-existing professional commitment" — and leave it at that.
**2. Reference to "Intellectual property matters" (¶2).** The sentence noting that the conflict relates to "Intellectual property matters" must be struck entirely. Even characterizing the practice area narrows the field unacceptably and risks disclosing confidential information about the nature of our existing engagement.
**3. "Irreconcilable positional conflict" (¶3).** While this phrase is legally accurate as an internal characterization, using it in a letter to Whitfield signals that we would be required to take opposing legal positions regarding the same technology or platform. Replace with more generic phrasing along the lines of: "a conflict of interest that, in the firm's assessment, is not subject to waiver by consent under applicable rules of professional conduct." You may reference the Illinois Rules of Professional Conduct generically, but please do not cite specific rule numbers (1.7(a)(1), 1.7(a)(2)) in the external letter. That level of specificity invites further inquiry into the conflict's structure, which is exactly what we want to avoid.
**4. Statement regarding confidential information (¶3).** The sentence noting that the firm "possesses confidential information that would be material to the proposed engagement" is problematic. It effectively confirms that our conflicting client has a direct nexus to the MTDC matter. Delete this sentence. The statement that the conflict is unwaivable is sufficient on its own. We have no obligation to explain the specific basis for the conflict to a declined prospective client.
**5. Confirmation of no attorney-client relationship (¶4).** This paragraph is fine as drafted and must remain. It correctly confirms that no attorney-client relationship was formed between the firm and MTDC, that we received no confidential documents or materials from MTDC, and that there are no outstanding obligations. One minor addition: please add a sentence clarifying that any information shared during the initial consultation — the May 6 call — will be treated as confidential by the firm notwithstanding the absence of a formal engagement.
**6. Referral offer (¶5).** The offer to facilitate referrals to alternative counsel is appropriate and should stay. I'd suggest adding a sentence indicating that we will separately provide names and contact information for recommended firms with relevant experience, which sets up the referral letter we plan to send shortly after. Do not name any specific firms in this declination letter — save those for the separate referral communication, which I understand is targeted for May 20.
**7. Closing / expression of regret (¶6).** The expression of regret reads well; no changes needed. Please confirm the letter will be signed by you as the partner who had the initial contact, on Chicago office letterhead (One North Wacker Drive, Suite 4200, Chicago, IL 60606).
**Process and Timing**
Once you've incorporated these edits, please circulate the revised draft to me and Lawrence for final sign-off before transmission. Given the time-sensitivity of MTDC's situation — the AG's CID response deadline and the pending class action (Cook County Case No. 2024-CH-04417) — we should get this letter to Whitfield no later than tomorrow, May 17. Please send via email with the signed letter as a PDF attachment to Whitfield at twhitfield@mtdc.gov, and copy Constance Hargrove at Hargrove, Tillman & Reese, since HTR facilitated the initial referral to us. I will retain both the draft and the final version in the Matter No. 1031-00001 file for the firm's records, and Colleen, please make sure a copy goes into the conflicts file as well.
Rachel, I'm happy to discuss any of these edits by phone if that would be helpful. I want to emphasize the importance of getting this right — this letter will be part of the firm's permanent conflicts record and needs to withstand scrutiny. The edits are largely about discipline in what we don't say, which I know you appreciate.
Thank you for your attention to this.
Best regards,
Helen Drazkowski General Counsel Calderwood & Harkness LLP One North Wacker Drive, Suite 4200 Chicago, IL 60606 hdrazkowski@calderwoodharkness.com