1.18 Duties to Prospective Client

(a) A person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.

(b) Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation, except as Rule 1.9 would permit with respect to information of a former client.

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

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

(1) both the affected client and the prospective client have given informed consent, confirmed in writing, or:

(2) the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; and

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

(ii) written notice is promptly given to the prospective client.

COMMENT

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

[2] Not all persons who communicate information to a lawyer are entitled to protection under this Rule. A person who communicates information unilaterally to a lawyer, without any reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship, is not a ?prospective client? within the meaning of paragraph (a).

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

[4] In order to avoid acquiring disqualifying information from a prospective client, a lawyer considering whether or not to undertake a new matter should limit the initial interview to only such information as reasonably appears necessary for that purpose. Where the information indicates that a conflict-ofinterest or other reason for non-representation exists, the lawyer 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 affected present or former clients must be obtained before accepting the representation.

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

[6] Even in the absence of an agreement, under paragraph (c), the lawyer is not prohibited from representing a client with interests adverse to those of the prospective client in the same or a substantially related matter unless the lawyer has received from the prospective client information that could be significantly harmful if used in the matter.

[7] Under paragraph (c), the prohibition in this Rule is imputed to other lawyers as provided in Rule 1.10, but, under paragraph (d)(1), imputation may be avoided if the lawyer obtains the informed consent, confirmed in 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 is promptly given to the prospective client. See Rule 1.0(k) (requirements for screening procedures). Paragraph (d)(2)(i) does not prohibit the screened lawyer from receiving a salary or partnership share established by prior independent agreement, but that lawyer may not receive compensation directly related to the matter in which the lawyer is disqualified.

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

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

REPORTER?S NOTES:

Model Rule 1.18 (2002), addressing duties to prospective clients, has no Maine Bar Rule equivalent, although new M. Bar R. 3.6(h)(1)(iv), effective July 1, 2005, addresses the lawyer?s duty not to disclose or use confidential information received from a prospective client.

The Maine Professional Ethics Commission has addressed issues relevant to the issue of a lawyer?s duty to prospective clients. It has noted that a prospective client who consults with a lawyer is a ?client? of the lawyer for the purposes of confidentiality, even in the absence of a formal engagement. The Commission has also indicated that there were at least two instances where a prospective client will not be deemed to have communicated a confidence or secret, and thus the lawyer would not be disqualified from representing the opposing party. The first would occur if confidences or secrets were revealed when a prospective client contacted a lawyer in an effort to disqualify the lawyer from representing the opposing party. In that instance the client would not be deemed to have disclosed such a confidence or secret in the context of seeking legal assistance. The second would be where the prospective client was clearly warned that any information disclosed in the initial contact would not be considered confidential and would be given at the prospective client?s peril. These opinions are generally in accord with Model Rule 1.18 (2002) (See Comment [5]).

Paragraph (a) defines a prospective client as one who discusses with a lawyer the possibility of forming a lawyer-client relationship. Paragraph (b) states that even though no attorney-client relationship is established, the lawyer still has an obligation not to use or reveal confidential information learned through the consultation, except as would be permitted by Rule 1.9 with respect to a former client. Paragraphs (c) and (d), read together, provide that a lawyer who has obtained confidential information from a prospective client shall not represent another person with interests materially adverse to those of the prospective client in the same or a substantially related matter, if the information could be significantly harmful to the prospective client. This disqualification is removed if the lawyer has informed written consent from both persons. The lawyer?s law firm is also disqualified from representation unless (1) the lawyer who received the information took reasonable steps to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client, (2) the lawyer is screened from the matter and takes no part in the fee from the matter, and (3) written notice is promptly given to the prospective client. The screening of lawyers to avoid disqualification in this context is a departure from the Maine Bar Rules.

The Task Force recommended adoption of Model Rule 1.18 (2002). There was consensus that this Rule encompasses several principles recognized under Maine?s current rules. Moreover, it reflects a sound approach to the ethical duties of a lawyer to prospective clients.