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Rule 1.18. Duties to Prospective Client.

(a) A person who consults with a lawyer about the possibility offorming a client-lawyer relationship with respect to a matter is a prospective client.

(b) Even when no client-lawyer relationship ensues, a lawyer whohas learned information from a prospective client shall not use or reveal thatinformation, except as Rule 1.9 would permit with respect to information of aformer client.

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

(d) When the lawyer has received disqualifying information asdefined in paragraph (c), representation is permissible if:

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

(d)(2) thelawyer who received the information took reasonable measures to avoid exposureto more disqualifying information than was reasonably necessary to determinewhether to represent the prospective client; and

(d)(2)(i) the disqualified lawyer is timely screened from anyparticipation in the matter and is apportioned no part of the fee therefrom;and

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


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

[2] A person becomes a prospective client by consulting with alawyer about the possibility of forming a client-lawyer relationship withrespect to a matter. Whether communications, including written, oral, orelectronic communications, constitute a consultation depends on thecircumstances. For example, a consultation is likely to have occurred if alawyer, either in person or through the lawyer?s advertising in any medium,specifically requests or invites the submission of information about apotential representation without clear and reasonably understandable warningsand cautionary statements that limit the lawyer?s obligations, and a personprovides information in response. See also Comment [4]. In contrast, aconsultation does not occur if a person provides information to a lawyer inresponse to advertising that merely describes the lawyer?s education,experience, areas of practice, and contact information, or provides legalinformation of general interest. Such a person communicates informationunilaterally to a lawyer, without any reasonable expectation that the lawyer iswilling to discuss the possibility of forming a client-lawyer relationship, andis thus not a "prospective client". Moreover, a person whocommunicates with a lawyer for the purpose of disqualifying the lawyer is not a?prospective client.?

[3] It is often necessary for a prospective client to revealinformation to the lawyer during an initial consultation prior to the decisionabout formation of a client-lawyer relationship. The lawyer often must learnsuch information to determine whether there is a conflict of interest with anexisting client and whether the matter is one that the lawyer is willing toundertake. Paragraph (b) prohibits the lawyer from using or revealing thatinformation, except as permitted by Rule 1.9, even if the client or lawyerdecides not to proceed with the representation. The duty exists regardless ofhow brief the initial conference may be.

[4] In order to avoid acquiring disqualifying information from aprospective client, a lawyer considering whether or not to undertake a newmatter should limit the initial consultation to only such information asreasonably appears necessary for that purpose. Where the information indicatesthat a conflict of interest or other reason for non-representation exists, thelawyer should so inform the prospective client or decline the representation.If the prospective client wishes to retain the lawyer,and if consent is possible under Rule 1.7, then consent from all affectedpresent or former clients must be obtained before accepting the representation.

[5] A lawyer may condition a consultation with a prospectiveclient on the person's informed consent that no information disclosed duringthe consultation will prohibit the lawyer from representing a different clientin 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 absence of an agreement, under paragraph (c), thelawyer is not prohibited from representing a client with interests adverse tothose of the prospective client in the same or a substantially related matterunless the lawyer has received from the prospective client information thatcould be significantly harmful if used in the matter.

[7] Under paragraph (c), the prohibition in this Rule is imputedto other lawyers as provided in Rule 1.10, but, under paragraph (d)(1),imputation may be avoided if the lawyer obtains the informed consent, confirmedin 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 lawyers are timely screened and written notice ispromptly given to the prospective client. See Rule 1.0(m)(requirementsfor screening procedures). Paragraph (d)(2)(i) doesnot prohibit the screened lawyer from receiving a salary or partnership shareestablished by prior independent agreement, but that lawyer may not receivecompensation directly related to the matter in which the lawyer isdisqualified.

[8] Notice, including a general description of the subject matterabout which the lawyer was consulted, and of the screening procedures employed,generally should be given as soon as practicable after the need for screeningbecomes apparent..

[9] For the duty of competence of a lawyer who gives assistance onthe merits of a matter to a prospective client, see Rule 1.1. For a lawyer'sduties when a prospective client entrusts valuables or papers to the lawyer'scare, see Rule 1.15.


Effective November 1, 2017