Legal Definition Prospective Client
(b) Even if a client-lawyer relationship is not established, a solicitor who has received information from a prospective client may not use or disclose that information unless permitted by Rule 1.9 in respect of information provided by a former client. (ii) the potential customer is promptly informed in writing. The second obligation is a conflict: you must not represent someone whose interests are materially opposed to those of the potential customer in the same or substantially related case if you have received significantly damaging information from the potential customer.7 There`s a lot going on in this sentence, which is largely at the heart of ABA 492. So, let`s separate it. However, before you begin, feedback offers an additional option to consider: you may want to consider making any consultation with a potential client conditional on the individual`s informed consent that no information disclosed during the performance will prevent the lawyer from representing another client in a case. This issue is explicitly discussed in Note 5 to Article 1.18, but caution should be exercised in this approach. Informed consent is a term defined in the Rules (Rule 1.0(f), MRPC) and may not be available depending on the facts and circumstances, including the sophistication of the advisory party. Let`s continue to discuss conflict and disqualification, assuming a lack of informed consent. Remember that representation against a former client is prohibited when the representation relates to the same or substantially related matter.8 This applies regardless of the confidential information available to the lawyer. Rule 1.18 does not provide the same level of protection to a potential client, but focuses on the type of information received. A disqualifying conflict occurs when the lawyer receives information that could be “significantly harmful” to the potential client.
The term “seriously prejudicial” is not defined and must be determined on a case-by-case basis, taking into account the specific facts. Much of ABA Notice 492 describes what the term “significantly prejudicial” might look like, but a non-exhaustive list includes information such as settlement views, personal reports on relevant events, strategic thinking about how to handle a situation, discussion of potential claims and the value of those claims. or the premature receipt of information that could affect the strategy or regulation.9 Let`s start with Definitions. A “potential client” is “a person who consults with a lawyer about the possibility of establishing a client-lawyer relationship with respect to a matter.” 1 Consultation must be more than one-sided contact with the lawyer for someone to become a potential client. If “a person unilaterally shares information with a lawyer without reasonably expecting the lawyer to discuss the possibility of a client-lawyer relationship,” the person is not a potential tenant.2 But what happens if you invite the contact? The comments on the rule suggest that if you request the submission of information without clear warning about the terms, this may be sufficient to constitute a consultation.3 The comments also contained this helpful caveat: “A person who contacts a lawyer to disqualify the lawyer is not a `potential client.`” 4 This is the case because this person does not meet the definition of a potential client, which specifically covers the purpose of the advice, namely the establishment of a client-lawyer relationship. (a) A person who consults with a lawyer on the possibility of establishing a client-lawyer relationship in a case is a potential client. There are several ways to avoid such disqualifications. For counsel or a member of his or her firm, the disqualification may be lifted by obtaining written informed consent, as in other disputes. Rule 1.18(d). To be effective, the lawyer must obtain this consent from both the client concerned and the potential former client. The State Ethics Committee of the Bar Association recently explained the two main requirements for effective screening: (1) written notice and (2) effective screening procedures. 2003 FEB 8.
First, the investment firm must inform the potential client in writing as soon as possible after the need for verification has been identified and before confidential information is disclosed to other members of the firm. In addition, the notification must contain “a description of the previous representation of the licensed lawyer and the selection procedures used”. If you receive information from a potential customer that “could be significantly prejudicial” to that potential customer, you are prohibited from agreeing to represent someone else whose interests are detrimental to the potential customer in the same or materially related matter. In my experience, when responding to calls through the Ethics Helpline, lawyers are often overly cautious about such situations, which means they refuse to be represented because they have already consulted with the counterparty, regardless of the information provided. This is certainly the prerogative of the lawyer, but it is not dictated by the rules of ethics. Rather, the investigation focuses on the nature of the information received and the possibility of significant harm to the potential client. In summary, Rule 1.18 provides that potential clients are entitled to at least some of the same protection afforded to clients with respect to confidential information and conflicts of interest. However, the rule also provides lawyers with several mechanisms to avoid disqualification. In adopting this new rule, the prosecution has sought to balance the interests of potential clients with those of the lawyers and firms it consults.
While the conflict-of-laws provision of Rule 1.18(c) attributes the disqualification of the prospective client to any other member of the law firm, Rule 1.18 provides an additional mechanism to avoid imputed exclusions. The dispute can be resolved by a prompt verification by the disqualified lawyer from participation in the case and by written notice to the potential client. Rule 1.18(d)(1) to (2). Through selection, other lawyers from the same law firm can represent the client without having to obtain informed consent. Testing can be very useful when a potential former client is denied consent or cannot be located in order to obtain consent. Rule 1.18 provides potential clients with two main protections regarding confidential information and disqualification. First, even if a solicitor-client relationship does not develop, “a lawyer who has had conversations with a prospective client shall not use or disclose confidential information learned during the consultation, unless Rule 1.9 permits it with respect to the information of a former client.” Rule 1.18(b). With respect to receiving, using and disclosing confidential information, potential customers will be treated like any other customer. However, the commentary on the new rule provides that “a person who unilaterally discloses information to a lawyer without reasonably expecting the lawyer to discuss the possibility of forming a client-lawyer relationship is not a `potential client.`” Rule 1.18, footnote [2].
As part of recent amendments to the revised Code of Professional Conduct, the State Bar has adopted a new rule on a lawyer`s obligations to a potential client. Rule 1.18 defines a prospective client as “a person who discusses with a lawyer the possibility of establishing a client-lawyer relationship in relation to a matter.” Rule 1.18(a). During initial consultations with a potential client, confidential information is almost always passed on to the lawyer. Accordingly, Rule 1.18 provides some, but not all, of the protections afforded to clients who use counsel. Rule 1.18, commentary [1]. Second, “if the lawyer has received information from the potential client that could cause significant harm to the prospective client in the case,” the lawyer is in conflict with “the representation of a client with interests materially opposed to those of a potential client in the same or substantially related matter.” Rule 1.18(c). Unfortunately, neither rule 1.18 nor the commentary thereto clarifies what is meant by “seriously prejudicial”. For example, if a lawyer receives information from a potential client about the parties` relative income and assets, whether that information could be “significantly harmful” to the potential client depends on the nature of the case and the likelihood of disclosure in that case.
On the other hand, in a family case, if a potential client told a lawyer that he had had an extramarital affair; The lawyer would likely be prohibited from representing the potential client`s spouse in a family matter where evidence might be relevant to the case. Rule 1.18, MRPC, strikes a good balance with respect to providing potential clients with some protection under the rules, but not all client protection, and it is clear that contacts made solely to disqualify counsel do not even provide the subset of protection afforded to potential clients. The rule also gives those who pay attention to it the opportunity to avoid attribution to the rest of the business. As always, if you have a specific question about the application of the Code of Ethics to your practice, please call our Ethics Policy at 651-296-3952 or email via our website at lprb.mncourts.gov. (c) A lawyer referred to in point (b) shall not represent a client whose interests are substantially opposed to those of a potential client in the same or substantially related case, if he has received information from the potential client which is likely to cause him significant harm in the case, except in the cases referred to in point (d).