Print Version
Previous PageFile uploaded: 5/1/2019

Rule 1.18. Dutiesto Prospective Client.

(a) A person whoconsults with a lawyer about the possibility of forming a client-lawyerrelationship with respect to a matter is a prospective client.

(b) Even when noclient-lawyer relationship ensues, a lawyer who has learned information from aprospective client shall not use or reveal that information, except as Rule 1.9would permit with respect to information of a former client.

(c) A lawyer subject toparagraph (b) shall not represent a client with interests materially adverse tothose of a prospective client in the same or a substantially related matter ifthe lawyer received information from the prospective client that could besignificantly harmful to that person in the matter, except as provided in paragraph(d). If a lawyer is disqualified from representation under this paragraph, nolawyer in a firm with which that lawyer is associated may knowingly undertakeor continue representation in such a matter, except as provided in paragraph(d).

(d) When the lawyer hasreceived disqualifying information as defined in paragraph (c), representationis permissible if:

(d)(1) both the affected client and theprospective client have given informed consent, confirmed in writing, or;

(d)(2) the lawyer who received theinformation took reasonable measures to avoid exposure to more disqualifyinginformation than was reasonably necessary to determine whether to represent theprospective client; and

(d)(2)(i) thedisqualified lawyer is timely screened from any participation in the matter andis apportioned no part of the fee therefrom; and

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

Comment

[1] Prospective clients,like clients, may disclose information to a lawyer, place documents or otherproperty in the lawyer's custody, or rely on the lawyer's advice. A lawyer'sconsultations with a prospective client usually are limited in time and depthand leave both the prospective client and the lawyer free (and sometimesrequired) to proceed no further. Hence, prospective clients should receive somebut not all of the protection afforded clients.

[2] A person becomes aprospective client by consulting with a lawyer about the possibility of forminga client-lawyer relationship with respect to a matter. Whether communications,including written, oral, or electronic communications, constitute aconsultation depends on the circumstances. For example, a consultation islikely to have occurred if a lawyer, either in person or through the lawyer?sadvertising in any medium, specifically requests or invites the submission ofinformation about a potential representation without clear and reasonablyunderstandable warnings and cautionary statements that limit the lawyer?sobligations, and a person provides information in response. See also Comment[4]. In contrast, a consultation does not occur if a person providesinformation to a lawyer in response to advertising that merely describes thelawyer?s education, experience, areas of practice, and contact information, orprovides legal information of general interest. Such a person communicatesinformation unilaterally to a lawyer, without any reasonable expectation thatthe lawyer is willing to discuss the possibility of forming a client-lawyerrelationship, and is thus not a "prospective client". Moreover, aperson who communicates with a lawyer for the purpose of disqualifying thelawyer is not a ?prospective client.?

[3] It is oftennecessary for a prospective client to reveal information to the lawyer duringan initial consultation prior to the decision about formation of aclient-lawyer relationship. The lawyer often must learn such information todetermine whether there is a conflict of interest with an existing client andwhether the matter is one that the lawyer is willing to undertake. Paragraph(b) prohibits the lawyer from using or revealing that information, except aspermitted by Rule 1.9, even if the client or lawyer decides not to proceed withthe representation. The duty exists regardless of how brief the initialconference may be.

[4] In order to avoidacquiring disqualifying information from a prospective client, a lawyerconsidering whether or not to undertake a new matter should limit the initialconsultation to only such information as reasonably appears necessary for thatpurpose. Where the information indicates that a conflict of interest or otherreason for non-representation exists, the lawyer should so inform theprospective client or decline the representation. If the prospective clientwishes to retain the lawyer, and if consent ispossible under Rule 1.7, then consent from all affected present or formerclients must be obtained before accepting the representation.

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

[6] Even in the absenceof an agreement, under paragraph (c), the lawyer is not prohibited fromrepresenting a client with interests adverse to those of the prospective clientin the same or a substantially related matter unless the lawyer has receivedfrom the prospective client information that could be significantly harmful ifused in the matter.

[7] Under paragraph (c),the prohibition in this Rule is imputed to other lawyers as provided in Rule1.10, but, under paragraph (d)(1), imputation may be avoided if the lawyerobtains the informed consent, confirmed in writing, of both the prospective andaffected clients. In the alternative, imputation may be avoided if theconditions of paragraph (d)(2) are met and alldisqualified lawyers are timely screened and written notice is promptly givento the prospective client. See Rule 1.0(o)(requirements for screening procedures). Paragraph (d)(2)(i)does not prohibit the screened lawyer from receiving a salary or partnershipshare established by prior independent agreement, but that lawyer may notreceive compensation directly related to the matter in which the lawyer isdisqualified.

[8] Notice, including ageneral description of the subject matter about which the lawyer was consulted,and of the screening procedures employed, generally should be given as soon aspracticable after the need for screening becomes apparent.

[9] For the duty ofcompetence of a lawyer who gives assistance on the merits of a matter to aprospective client, see Rule 1.1. For a lawyer's duties when a prospectiveclient entrusts valuables or papers to the lawyer's care, see Rule 1.15.

 

 

Effective May 1, 2019