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sunEthics |
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Be Careful What You Wish For: New Bar Rule 4-1.18 Clarifies Lawyers' Duties Toward Prospective Clients
On March 23, 2006, the Florida Supreme Court issued an opinion implementing, among other changes, new Bar Rule 4-1.18. The new Bar Rule addresses the duties an attorney has toward prospective clients, including maintaining the confidentiality of information obtained from the client, disqualification of the attorney and law firm upon receipt of adverse information, and when representation is permissible after disqualifying information is received. The rule was designed to give clear direction to lawyers who discuss the possibility of representation with a prospective client and also to protect confidences revealed by the prospective client from disclosure by the lawyer. Subsection (a) of the rule states that a person "who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client." Subsection (b) requires the lawyer to maintain the confidences of the prospective client which were gained from the consultation, except a disclosure permitted under rule 4-1.9 related to information of a former client. Subsection (c) states that a lawyer who has discussions outlined in subsection (b) of the rule is prohibited from representing a client whose interests are materially adverse to those of the prospective client in the same or substantially related matter if the lawyer received information from the prospective client that could be used to the disadvantage of the prospective client in the matter except as provided in subsection (d) of this rule. Further, if the lawyer is disqualified under the rule, that lawyer's firm entire firm is disqualified. Under subsection (d) of the rule, the lawyer who has received disqualifying information under subsection (c) of the rule may continue the representation if: 1) both the affected client and prospective client give their informed consent 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 form any participation in the matter and receives no fee; and (ii) written notice is promptly given to the prospective client. Although it is generally acknowledged that the lawyer must maintain the confidences of a prospective client and may be disqualified from representation of another client under certain circumstances, the Bar rules did not previously specifically address prospective clients and potential disqualification. The new rule confirms that consultation with a prospective client triggers confidentiality of any information provided by the prospective client and provides that if the prospective client's interests are materially adverse to another of the lawyer's clients, the lawyer is prohibited from representing the current client; however, the rule provides that a lawyer may represent the subsequent client if the lawyer obtains informed consent from the affected and prospective clients or takes measures to avoid exposure to more disqualifying information and is subsequently screened from participation and written notice is promptly given to the prospective client. This rule provides guidelines for lawyers with regard to prospective clients and also sets forth a mechanism to address the issue of "lawyer disqualification shopping" which seems to occur in certain areas of practice, particularly family law matters wherein spouses contact lawyers in attempt to disqualify that lawyer from representing the other spouse in a dissolution matter. If a lawyer who is contacted by a prospective client takes "reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client", the law firm may represent another client in the same or similar matter whose interests are adverse if the initial lawyer is screened from any participation in the matter and the prospective client is given written notice. |
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