In an opinion issued on June 9, 2020, the American Bar Association Standing Committee on Ethics and Professional Responsibility addressed an often overlooked individual: the former prospective client.
Formal Opinion No. 492 states that a lawyer who receives information that “could be significantly harmful” from a prospective client and then represents a client in the same or a substantially related matter where that client’s interests are materially adverse to those of the prospective client violates Model Rule 1.18(c), unless the conflict is waived by the prospective client. 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 Opinion defines a “former prospective client” as an individual who has consulted with the lawyer about the possibility of forming a client-lawyer relationship with respect to a matter, but no client-lawyer relationship is subsequently established. Under the Model Rules, this individual is owed some – but not all – the protections afforded to clients. Thus, the Committee emphasized that Model 1.18 is different than Model Rule 1.9, which governs protections for former clients, because it imposes the additional requirement that that the prospective client have communicated information that “could be significantly harmful” in a subsequent matter. As a result, the mere fact that a prospective client consulted with a lawyer in a substantially related matter is not sufficient, alone, to disqualify the lawyer from a later matter.
Moreover, noting that not every contact between a lawyer and an individual about legal services actually makes that person a “prospective client,” the Committee said that evidence beyond the mere fact of a consultation is generally required. However, if the interaction is tantamount to a consultation, Model Rule 1.18(b) imposes a duty of confidentiality with respect to information learned during a consultation, even when no client-lawyer relationship ensues. Importantly, this includes all information learned during the consultation, unless the lawyer has the informed consent of the prospective client to condition the consultation on removing the requirement of confidentiality.
The Committee cited examples drawn from case law to address the fact-specific “significantly harmful” standard. They include “views on various settlement issues including price and timing;” “personal accounts of each relevant event [and the prospective client’s] strategic thinking concerning how to manage the situation;” an “18-minute phone call” with a “prospective client-plaintiff [during which a firm] had ‘outlined potential claims’” against defendant and “‘discussed specifics as to amount of money needed to settle the case;’” and a presentation by a corporation seeking to bring an action of “the underlying facts and legal theories about its proposed lawsuit.”
If the standard is met, Model Rule 1.18(c) provides for potential disqualification arising out of the consultation: ”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 .”
Of course, in order to avoid receiving “significantly harmful information” from a prospective client, lawyers should warn prospective clients against disclosing detailed information. Comment [4] to Model Rule 1.18 states that a lawyer “should limit the initial consultation [with a prospective client] to only such information as reasonably appears necessary” for the purpose of “considering whether or not to undertake a new matter.” The Opinion also proposes invoking screening procedures and explicit informed consent clauses as further risk management.