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Rule1.18. Duties to prospective client.

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

(b) Even when no licensed paralegalpractitioner-client relationship ensues, a licensed paralegal practitioner 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 a formerclient.

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

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

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

(d)(2) thelicensed paralegal practitioner who received the information took reasonable measures to avoid exposure to more disqualifyinginformation than was reasonably necessary to determine whether to represent the prospectiveclient;  and

(d)(2)(i) thedisqualified licensed paralegal practitioner is timely screened from any participation in the matter and isapportioned 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 toa licensed paralegal practitioner, place documents or other property in thelicensed paralegal practitioner's custody, or rely on the licensed paralegalpractitioner's advice. A licensed paralegal practitioner's consultations with aprospective client usually are limited in time and depth and leave both theprospective client and the licensed paralegal practitioner free (and sometimesrequired) to proceed no further. Hence, prospective clients should receive somebut not all of the protection afforded clients.

[2] A person becomes a prospective client by consulting with alicensed paralegal practitioner about the possibility of forming a licensedparalegal practitioner-client relationship with respect to a matter. Whethercommunications, including written, oral, or electronic communications,constitute a consultation depends on the circumstances. For example, aconsultation is likely to have occurred if a licensed paralegal practitioner,either in person or through the licensed paralegal practitioner?s advertisingin any medium, specifically requests or invites the submission of informationabout a potential representation without clear and reasonably understandablewarnings and cautionary statements that limit the licensed paralegalpractitioner?s obligations, and a person provides information in response. Seealso Comment [4]. In contrast, a consultation does not occur if a personprovides information to a licensed paralegal practitioner in response toadvertising that merely describes the licensed paralegal practitioner?seducation, experience, areas of practice, and contact information, or provideslegal information of general interest. Such a person communicates informationunilaterally to a licensed paralegal practitioner, without any reasonableexpectation that the licensed paralegal practitioner is willing to discuss thepossibility of forming a licensed paralegal practitioner - client relationship,and is thus not a "prospective client". Moreover, a person whocommunicates with a licensed paralegal practitioner for the purpose ofdisqualifying the licensed paralegal practitioner is not a ?prospectiveclient.?

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

[4] In order to avoid acquiring disqualifying information from aprospective client, a licensed paralegal practitioner considering whether ornot to undertake a new matter should limit the initial consultation to onlysuch information as reasonably appears necessary for that purpose. Where theinformation indicates that a conflict of interest or other reason fornon-representation exists, the licensed paralegal practitioner should so informthe prospective client or decline the representation. If the prospective clientwishes to retain the licensed paralegal practitioner,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 licensed paralegal practitioner may condition a consultationwith a prospective client on the person's informed consent that no informationdisclosed during the consultation will prohibit the licensed paralegalpractitioner from representing a different client in the matter. See Rule1.0(f) for the definition of informed consent. If the agreement expressly soprovides, the prospective client may also consent to the licensed paralegalpractitioner's subsequent use of information received from the prospectiveclient.

[6] Even in the absence of an agreement, under paragraph (c), thelicensed paralegal practitioner is not prohibited from representing a clientwith interests adverse to those of the prospective client in the same or asubstantially related matter unless the licensed paralegal practitioner hasreceived from the prospective client information that could be significantlyharmful if used in the matter.

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

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

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

 

Effective November 1, 2018