Conflicts of Interest · 12-18% of the exam
8.2.2Prospective-client conflicts (Rule 1.18)
On this page
- Rule 1.18 — Prospective-client conflicts
- Cross-reference: Imputation (Rule 1.10)
(Rule 1.18 is introduced in Chapter 4 with client formation; it is taught fully here.)
Rule 1.18's screening cure works without the prospective client's consent. A consultation creates prospective-client status, and whether one occurred depends on the circumstances; the bar is higher, requiring significantly harmful information, not merely relevant. Which did the lawyer actually hear — something significantly harmful, or something merely relevant?
Why
People have to describe their problem to find out whether a lawyer can help them. If that first conversation carried the full weight of a completed representation, no lawyer could afford to take the call; if it carried none, no one could afford to be candid on it. Rule 1.18 sits between those two failures.
Plain English
Someone who consults a lawyer about the possibility of forming a client-lawyer relationship is a prospective client even if no representation follows, and whether a consultation occurred depends on the circumstances. Don't use or reveal what you learned unless a confidentiality exception applies. Don't take a materially adverse matter that is the same or substantially related if you received information that could be significantly harmful — a higher bar than merely relevant.
Two cures: informed consent confirmed in writing from both, or screening — a cure for the firm's imputed disqualification, not for the consulting lawyer's own — available only where:
- the consulting lawyer took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client,
- that lawyer is timely screened and receives no part of the fee, and
- written notice is promptly given to the prospective client.
Rule
Rule 1.18 — Prospective-client conflicts
Rule 1.18(a). A person who consults with a lawyer about the possibility of forming a client-lawyer relationship is a prospective client, even if no representation results. Whether a consultation occurred depends on the circumstances: someone who sends information unilaterally, with no reasonable expectation that the lawyer is willing to discuss forming a relationship — a reply to an advertisement that merely lists credentials — has not consulted. Neither has someone communicating in order to disqualify the lawyer.
Rule 1.18(b). A lawyer who learned information from a prospective client shall not use or reveal that information unless a confidentiality exception applies.
Rule 1.18(c). A lawyer shall not represent a client with interests materially adverse to those of a prospective client in the same or substantially related matter if the lawyer received information that could be significantly harmful to the prospective client.
Higher bar: "significantly harmful" is a higher standard than the substantially-related test for former-client conflicts; the information must be capable of causing significant harm, not merely of being relevant.
Imputation. The disqualification under Rule 1.18(c) is imputed to the firm.
Two ways to overcome prospective-client disqualification:
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Informed consent from both the affected client and the prospective client, confirmed in writing; OR
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Screening — a cure for the firm's imputed disqualification, not for the consulting lawyer's own — available only if:
(a) the consulting lawyer took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; (b) the consulting lawyer is timely screened and receives no part of the fee; AND (c) written notice is promptly given to the prospective client.
Screening under Rule 1.18(d)(2) is available without the prospective client's consent. So is Rule 1.10(a)(2) screening; one thing they do not share is reach — Rule 1.10(a)(2) removes imputation only where the prohibition arises out of the disqualified lawyer's association with a prior firm, while Rule 1.18(d)(2) screening is not so limited and works on a consultation taken inside the lawyer's own current firm.
Practical note. A lawyer who, faced with an unsolicited prospective-client disclosure, took reasonable measures to avoid hearing more than was needed to decide whether to take the matter is in a stronger position to avoid "significantly harmful" information entirely and may thereby prevent disqualification.
Example 1
Ex. 1
Kim consulted a firm, sharing financial records and identifying weaknesses in his contract claim. The firm declined. His former partner later sought representation in the same dispute. Kim's disclosures made him a prospective client; the information is significantly harmful. Hearing the financial records and Kim's own account of the claim's weaknesses went past what the intake decision required, so the reasonable-measures condition fails and screening is unavailable. Without written consent from both parties, the firm must decline. Trace what the attorney heard, not what the firm turned down: saying no to Kim's own case is not what closed the door.
Example 2
Ex. 2
Lena called a firm about a claim against her employer. The attorney recognized a conflict after one sentence and ended the consultation. Lena said nothing further. Months later, the employer sought representation in the same matter. The attorney took reasonable measures to avoid exposure from the first sentence; no significantly harmful information was acquired; disqualification doesn't arise. Screening wouldn't require Lena's consent. Stand Lena's call next to Kim's consultation; the difference is one sentence long.
Rule 1.18(d)(2) screening doesn't require the prospective client's consent. Neither does Rule 1.10(a)(2) screening; they differ in reach: Rule 1.10(a)(2) reaches only a prohibition arising out of the lawyer's association with a prior firm, while Rule 1.18(d)(2) screening is not so limited.
No engagement letter is required for prospective-client status. Consulting a lawyer about the possibility of forming a client-lawyer relationship is enough, and whether that happened depends on the circumstances.
Tip
Rule
Cross-reference: Imputation (Rule 1.10)
When one lawyer in a firm has a conflict, the conflict is ordinarily imputed to every other lawyer in the firm. Rule 1.10 governs how that imputation works and when screening can isolate the infected lawyer. Imputation is treated fully in the next chapter.
Questions · 2
Q 01ch08-e09
Question 1 of 2 · Rule 1.18(c)
A caller reached Attorney about a licensing fight with a software supplier and began describing the trouble. Within two minutes Attorney recognized that the supplier was a current client of the firm, said that a conflict might exist, and ended the call. By then the caller had said only that the dispute concerned the wording of the license terms and had named the supplier. No figures, no drafting history, no settlement posture, and no plan for the case had been mentioned. The supplier now asks the firm to handle that same dispute, and the caller refuses to consent. Is the firm subject to disqualification?
Keys 1 to 4 choose.