TLIE Top Tip: New Rule 1.18, Duties to Prospective Clients: Part 1
TLIE Top TipsIn June 2021, the Texas Professional Ethics Committee issued Opinion 691 which discussed an attorney’s duty to prospective clients, as well as when a prospective client consultation could later conflict others in the firm from representing a person adverse to that prospective client. New Rule 1.18, which is similar to ABA Model Rule 1.18, picks up where Opinion 691 left off, and further provides additional guidance regarding the ability to avoid an imputed prospective client conflict in certain circumstances. This week we will focus on who qualifies as a prospective client and what a lawyer’s duties are to that person.
First, to understand Rule 1.18’s application, a lawyer must first understand who is and who is not a prospective client. Rule 1.18(a) clearly identifies a prospective client as someone who “consults with a lawyer in good faith about the possibility of forming a client-lawyer relationship with respect to a matter.” Both 1.18 and Comment 2 to Rule 1.18 further explain that a person who does the following is not considered a prospective client:
- communicates with a lawyer for the purpose of disqualifying the lawyer;
- communicates with a lawyer for a purpose that does not include a good faith intention to seek representation by that lawyer;
- communicates with a lawyer when the lawyer has not specifically requested/invited the submission of information;
- provides information to a lawyer in response to advertising that merely describes the lawyer’s credentials and contact information, or legal information of general interest; and
- unilaterally communicates information to a lawyer, without any reasonable expectation that the lawyer is willing to discuss a possible attorney-client relationship.
If the person qualifies as a prospective client, then Rule 1.18(b) makes clear that a lawyer who has learned information from that prospective client cannot use or reveal that information, even if no attorney-client relationship ensues. The only caveats to this are: 1) if the Rules permit/require disclosure; 2) if the information has become generally known; or 3) the use/disclosure would not be significantly harmful to the prospective client. With respect to the last two points, these are largely dependent on subjective factors, and for that reason, a lawyer should not solely rely on these exceptions as justification for use/disclosure.
Rule 1.18(c) provides that if the lawyer learned information from a prospective client, then that lawyer cannot represent a client with interests materially adverse to the prospective client in the same or substantially related matter if the information learned could be significantly harmful to the prospective client, and neither can anyone in her firm. Again, whether the information could be significantly harmful is subjective, and the prospective client will likely argue that it is regardless.
A reminder that new Rule 1.18 is now in effect as of October 1, 2024, and TLIE has a one-hour ethics CLE available that discusses all of the new and amended Rules.
