chevron-down Created with Sketch Beta.
June 09, 2020

ABA issues new ethics guidance for lawyers when communicating with prospective clients

CHICAGO, June 9, 2020 — The American Bar Association Standing Committee on Ethics and Professional Responsibility released guidance today to help lawyers determine if information received from a prospective client could disqualify the lawyer or the lawyer’s firm from representing a client.

Formal Opinion 492 interprets Model Rule 1.18, which addresses a lawyer’s duties to prospective clients, of the ABA Model Rules of Professional Conduct. The rule governs when a lawyer is limited from accepting a new client whose interests are materially adverse to a former prospective client in the same or a substantially related matter. Rule 1.18 prohibits the representation if the prospective client provided the lawyer with information that “could be significantly harmful” to the prospective client in the new matter.

The opinion explains “significantly harmful” – a phrase in 1.18(c)— and explores how that would be applied in several situations.

“Whether information that ‘could be significantly harmful’ has been disclosed by a prospective client is a fact-specific inquiry and determined on a case-by-case basis,” the formal opinion said. “The test focuses on the potential harm in the new matter.”

The opinion uses a number of state ethics opinions and a decision from the North Dakota Supreme Court to explain that information is “significantly harmful” if it includes, for example, views of the prospective client on strategies for managing a situation; settlement issues or trial strategy; personal accounts of relevant events; sensitive personal information, including financial information; or other information that is sensitive or privileged.

The opinion also notes that under Rule 1.18, even if the lawyer learned information that could be significantly harmful to the prior prospective client in the new matter, the lawyer’s firm can accept the new matter if the lawyer is screened from the new matter or the prospective client provides informed consent.

The ABA Standing Committee on Ethics and Professional Responsibility periodically issues ethics opinions to guide lawyers, courts and the public in interpreting and applying ABA model ethics rules to specific issues of legal practice, client-lawyer relationships and judicial behavior. Recent ABA ethics opinions are available on the ABA Center for Professional Responsibility website.

 

The ABA is the largest voluntary association of lawyers in the world. As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law. View our privacy statement online. Follow the latest ABA news at www.americanbar.org/news and on Twitter @ABANews