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Rule 4-1.18 Duties to Prospective Client
(a) Prospective Client. 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) Confidentiality of Information. 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
4-1.9 would permit with respect to information of a former client.
(c) Subsequent Representation. A lawyer subject to subdivision (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 used to the
disadvantage of that person in the matter, except as provided in subdivision
(d). If a lawyer is disqualified from representation under this rule, 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 subdivision (d).
(d) Permissible Representation. When the lawyer has received
disqualifying information as defined in subdivision (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
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 the lawyer sometimes required) to
proceed no further. Hence, prospective clients should receive some but not all
of the protection afforded clients.
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 subdivision (a).
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. Subdivision (b) prohibits the lawyer from using or revealing that
information, except as permitted by rule 4-1.9, 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.
In order to avoid acquiring disqualifying information from a
prospective client, a lawyer considering whether 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 of interest 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 4-1.7, then consent from all affected present or former clients must be
obtained before accepting the representation.
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 terminology 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.
Even in the absence of an agreement, under subdivision (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 used to the disadvantage of the prospective client in the matter.
Under subdivision (c), the prohibition in this rule is
imputed to other lawyers as provided in rule 4-1.10, but, under subdivision
(d)(1), the prohibition and its imputation may be avoided if the lawyer obtains
the informed consent, confirmed in writing, of both the prospective and affected
clients. In the alternative, the prohibition and its imputation may be avoided
if the conditions of subdivision (d)(2) are met and all disqualified lawyers are
timely screened and written notice is promptly given to the prospective client.
See Rule terminology (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.
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.
The duties under this rule presume that the prospective
client consults the lawyer in good faith. A person who consults a lawyer simply
with the intent of disqualifying the lawyer from the matter, with no intent of
possibly hiring the lawyer, has engaged in a sham and should not be able to
invoke this rule to create a disqualification.
For the duty of competence of a lawyer who gives assistance
on the merits of a matter to a prospective client, see rule 4-1.1. For a
lawyer's duties when a prospective client entrusts valuables or papers to the
lawyer's care, see chapter 5, Rules Regulating The Florida Bar.
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