Last week we discussed what duties are owed to someone who qualifies as a prospective client pursuant to new Rule 1.18. This week we will discuss what Rule 1.18 and its comments say about when a lawyer can go forward with a representation adverse to the prospective client even if the lawyer receives disqualifying information from the prospective client.
Per Rule 1.18(c), if a lawyer receives information from a prospective client that could be “significantly harmful” to that prospective client, then that lawyer has received “disqualifying information,” and neither the lawyer nor anyone else in that lawyer’s firm is permitted to represent a client with interests materially adverse to the prospective client in the same or substantially related matter. To be clear, though, a representation adverse to a prospective client is only prohibited if the lawyer received information that could be “significantly harmful” if used in the matter. See, Comment 6 to Rule 1.18. Comment 4 to Rule 1.18 advises that in order to prevent this situation, the lawyer should limit the initial consultation to only such information as reasonably appears necessary to consider whether or not the lawyer can undertake the new matter. Yet, as we cautioned last week, “significantly harmful” is not defined, is largely subjective, and will likely be claimed as such by a prospective client regardless.
That said, Rule 1.18(d), provides two circumstances where the adverse representation can proceed even if the lawyer receives such “disqualifying information.” First, the lawyer can proceed if both the prospective client and the affected client give informed consent, confirmed in writing. Second, if the lawyer who received the information took steps to avoid exposure to more disqualifying information than was necessary to determine whether or not she could take on the representation, then the law firm can proceed with the adverse representation if the disqualified lawyer is timely screened; and written notice is promptly given to the prospective client.
Comment 5 to Rule 1.18 suggests a third possibility – an express agreement with the prospective client entered into prior to the consultation, with informed consent, that no information disclosed during the consultation will prohibit the lawyer from representing a different client in the matter, and that the lawyer may subsequently use information received from the prospective client.
Texas Ethics Opinion 651 discusses language that can be used for an effective pre-consultation warning. Additionally, TLIE insureds can email rskmgmt@tlie.org for a form Firm Consultation Agreement and Advanced Waiver for prospective clients to sign prior to any consultation. TLIE also has a one-hour ethics CLE available that includes a discussion of several practical applications of Rule 1.18.