Reporter's Explanation of Changes
Rule 1.18 is a proposed new Rule in response to the Commission's concern that important events occur in the period during which a lawyer and prospective client are considering whether to form a client-lawyer relationship. For the most part, the current Model Rules do not address that pre-retention period.
TEXT:
1. Paragraph (a): Define prospective client
Paragraph (a) defines the limited circumstances to which this Rule applies by defining who qualifies as a "prospective client."
2. Paragraph (b): Duty of confidentiality owed prospective client
Paragraph (b) identifies the duty to treat all communications with a prospective client as confidential. This obligation is a well-settled matter under the law of attorney-client privilege, and the fact that Model Rule 1.9 does not now technically cover these communications is an omission that this proposal corrects.
3. Paragraph (c): Prohibit later representation adverse to prospective client
Paragraph (c) extends the application of Rule 1.9 to prohibit representation adverse to the prospective client in the same or a substantially related matter. Unlike Rule 1.9, however, this Rule does so only if the lawyer received information from the prospective client that could be "significantly harmful" to that person in the later representation.
The prospective client situation justifies that different treatment because, prior to the representation decision, there is an inevitable period in which it is in the interest of the prospective client to share enough information with the lawyer to determine whether there is a conflict of interest or simple incompatibility. The lawyer may learn very early in the consultation, for example, that the party adverse to the prospective client is a client of the lawyer's firm. If the discussion stops before "significantly harmful" information is shared, it seems that the law firm's regular client should not be denied counsel of its choice if a substantially related matter arises.
Paragraph (c) also extends the prohibition of this Rule to associated lawyers, except as provided in paragraph (d).
4. Paragraph (d): Representation permitted with client consent
Paragraph (d) makes clear that the prohibition imposed by this Rule can be waived with the informed consent, confirmed in writing, of both the former prospective client and the client on whose behalf the lawyer later plans to take action adverse to the former prospective client. The expression of this requirement is parallel to that in Rules 1.7 and 1.9.
5. Paragraph (d): Screening lawyer who conferred with prospective client
In the event that "significantly harmful" information is revealed, paragraph (d) provides that the lawyer who received the information may be screened from any involvement in the subsequent matter but others in the law firm may represent the adverse party.
COMMENT:
[1] This Comment highlights three ways in which lawyers may assume obligations to prospective clients: disclosure of information, taking possession of documents or property and giving legal advice. It also explains the inevitably tentative quality of the initial consultation and suggests the reason for giving prospective clients somewhat less than the protection offered former clients by Rule 1.9.
[2] This Comment explains that lawyers are not disqualified when a person unilaterally communicates information to the lawyer without any reasonable expectation that the lawyer will agree to discuss the possibility of forming a client-lawyer relationship.
[3] This Comment explains the lawyer's obligation to preserve confidences of the prospective client, no matter what right the lawyer or law firm may have to undertake later adverse representation.
[4] This Comment first explains that a lawyer should obtain only the information required to determine whether to undertake the representation. If a conflict of interest is found to exist, the lawyer should decline the representation or obtain the required consent from all affected clients.
[5] This Comment identifies consent in advance of the consultation as one way to avoid later concerns about adverse use of the information obtained. Such an option was expressly approved in ABA Standing Committee on Ethics and Professional Responsibility Formal Opinion 90-358.
[6] This Comment reiterates the right of a lawyer to undertake representation adverse to a prospective client from whom no "significantly harmful" information was obtained.
[7] This Comment describes how the imputation otherwise required by paragraph (c) may be avoided by either obtaining the informed consent of the prospective and affected clients or by screening under the conditions stated in paragraph (d)(1).
[8] This Comment addresses the requirements of paragraph (d)(2).
[9] This Comment is a cross-reference to existing Rules that deal with two of the three issues identified in Comment [1]. Any advice a lawyer gives must be competent under Rule 1.1, and Rule 1.15 requires a lawyer to care for property of "third persons," which would include prospective clients.
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