Rule 1.18. Duties to prospective client.

(a) A person who discusses with a licensed paralegal practitioner the possibility of forming a licensed paralegal practitioner-client relationship with respect to a matter is a prospective client.

(b) Even when no licensed paralegal practitioner-client relationship ensues, a licensed paralegal practitioner who has learned information from a prospective client shall not use or reveal that information, except as Rule 1.9 would permit with respect to information of a former client.

(c) A licensed paralegal practitioner subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the licensed paralegal practitioner received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d). If a licensed paralegal practitioner is disqualified from representation under this paragraph, no attorney or licensed paralegal practitioner in a firm with which that licensed paralegal practitioner is associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d).

(d) When the licensed paralegal practitioner has received disqualifying information as defined in paragraph (c), representation is permissible if:

(d)(1) both the affected client and the prospective client have given informed consentconfirmed in writing, or;

(d)(2) the licensed paralegal practitioner who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client;  and

(d)(2)(i) the disqualified licensed paralegal practitioner is timely screened from any participation in the matter and is apportioned no part of the fee therefrom;  and

(d)(2)(ii) written notice is promptly given to the prospective client.

 

Comment

[1] Prospective clients, like clients, may disclose information to a licensed paralegal practitioner, place documents or other property in the licensed paralegal practitioner's custody, or rely on the licensed paralegal practitioner's advice. A licensed paralegal practitioner's consultations with a prospective client usually are limited in time and depth and leave both the prospective client and the licensed paralegal practitioner free (and sometimes required) to proceed no further. Hence, prospective clients should receive some but not all of the protection afforded clients.

[2] A person becomes a prospective client by consulting with a licensed paralegal practitioner about the possibility of forming a licensed paralegal practitioner-client relationship with respect to a matter. Whether communications, including written, oral, or electronic communications, constitute a consultation depends on the circumstances. For example, a consultation is likely to have occurred if a licensed paralegal practitioner, either in person or through the licensed paralegal practitioner’s advertising in any medium, specifically requests or invites the submission of information about a potential representation without clear and reasonably understandable warnings and cautionary statements that limit the licensed paralegal practitioner’s obligations, and a person provides information in response. See also Comment [4]. In contrast, a consultation does not occur if a person provides information to a licensed paralegal practitioner in response to advertising that merely describes the licensed paralegal practitioner’s education, experience, areas of practice, and contact information, or provides legal information of general interest. Such a person communicates information unilaterally to a licensed paralegal practitioner, without any reasonable expectation that the licensed paralegal practitioner is willing to discuss the possibility of forming a licensed paralegal practitioner - client relationship, and is thus not a "prospective client". Moreover, a person who communicates with a licensed paralegal practitioner for the purpose of disqualifying the licensed paralegal practitioner is not a “prospective client.”

[3] It is often necessary for a prospective client to reveal information to the licensed paralegal practitioner during an initial consultation prior to the decision about formation of a licensed paralegal practitioner - client relationship. The licensed paralegal practitioner often must learn such information to determine whether there is a conflict of interest with an existing client and whether the matter is one that the licensed paralegal practitioner is willing to undertake. Paragraph (b) prohibits the licensed paralegal practitioner from using or revealing that information, except as permitted by Rule 1.9, even if the client or licensed paralegal practitioner decides not to proceed with the representation. The duty exists regardless of how brief the initial conference may be.

[4] In order to avoid acquiring disqualifying information from a prospective client, a licensed paralegal practitioner considering whether or not to undertake a new matter should limit the initial consultation to only such information as reasonably appears necessary for that purpose. Where the information indicates that a conflict of interest or other reason for non-representation exists, the licensed paralegal practitioner should so inform the prospective client or decline the representation. If the prospective client wishes to retain the licensed paralegal practitioner, and if consent is possible under Rule 1.7, then consent from all affected present or former clients must be obtained before accepting the representation.

[5] A licensed paralegal practitioner may condition a consultation with a prospective client on the person's informed consent that no information disclosed during the consultation will prohibit the licensed paralegal practitioner from representing a different client in the matter. See Rule 1.0(f) for the definition of informed consent. If the agreement expressly so provides, the prospective client may also consent to the licensed paralegal practitioner's subsequent use of information received from the prospective client.

[6] Even in the absence of an agreement, under paragraph (c), the licensed paralegal practitioner is not prohibited from representing a client with interests adverse to those of the prospective client in the same or a substantially related matter unless the licensed paralegal practitioner has received from the prospective client information that could be significantly harmful if used in the matter.

[7] Under paragraph (c), the prohibition in this Rule is imputed to other licensed paralegal practitioners as provided in Rule 1.10, but, under paragraph (d)(1), imputation may be avoided if the licensed paralegal practitioner obtains the informed consent, confirmed in writing, of both the prospective and affected clients. In the alternative, imputation may be avoided if the conditions of paragraph (d)(2) are met and all disqualified licensed paralegal practitioners are timely screened and written notice is promptly given to the prospective client. See Rule 1.0(m) (requirements for screening procedures). Paragraph (d)(2)(i) does not prohibit the screened licensed paralegal practitioner from receiving a salary or partnership share established by prior independent agreement, but that licensed paralegal practitioner may not receive compensation directly related to the matter in which the licensed paralegal practitioner is disqualified.

[8] Notice, including a general description of the subject matter about which the licensed paralegal practitioner was consulted, and of the screening procedures employed, generally should be given as soon as practicable after the need for screening becomes apparent.

[9] For the duty of competence of a licensed paralegal practitioner who gives assistance on the merits of a matter to a prospective client, see Rule 1.1. For a licensed paralegal practitioner's duties when a prospective client entrusts valuables or papers to the licensed paralegal practitioner's care, see Rule 1.15.

 

Effective November 1, 2018