Rule 1.18 Duties to Prospective Client
(a) A person who discusses communicates with a lawyer about the possibility of forming a client-lawyer relationship and has a reasonable expectation that the lawyer is willing to consider forming a client-lawyer relationship with respect to a matter is a prospective client.
(b) Even when no client-lawyer relationship ensues, a lawyer who has had discussions with learned information from a prospective client shall not use or reveal that information learned in the consultation, except as Rule 1.9 would permit with respect to information of a former client.
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COMMENT
[1] 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 communications with a prospective client usually are limited in time and depth and leave both the prospective client and the lawyer free (and sometimes required) to proceed no further. Hence, prospective clients should receive some but not all of the protection afforded clients.
[2] 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 consider the possibility of forming a client-lawyer relationship, is not a ‘‘prospective client’’ within the meaning of paragraph (a). Moreover, a person who communicates with a lawyer for the purpose of disqualifying the lawyer is not a “prospective client.”
[3] A person becomes a prospective client when that person communicates with a lawyer under circumstances where the person has a reasonable expectation that the lawyer is willing to consider forming a client-lawyer relationship. The reasonableness of the person’s expectations may depend on a number of factors, including whether the lawyer encouraged or solicited inquiries about a proposed representation; whether the lawyer previously represented or declined to represent the person; whether the person, prior to communicating with the lawyer, encountered any warnings or cautionary statements that were intended to limit, condition, waive or disclaim the lawyer’s obligations; whether those warnings or cautionary statements were clear and reasonably understandable; and whether the lawyer acted or communicated in a manner that was contrary to the warnings or cautionary statements. For example, if a lawyer’s website encourages a website visitor to submit a personal inquiry about a proposed representation and the website fails to include any cautionary language, the person submitting the information could become a prospective client. In contrast, if a lawyer’s website does not expressly encourage or solicit inquiries about a proposed representation and merely offers general information about legal topics or information about the lawyer or the lawyer’s firm, such as the lawyer’s contact information, experience, and areas of practice, this information alone is typically insufficient to create a reasonable expectation that the lawyer is willing to consider forming a client-lawyer relationship.
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The Commission's Explanation for the Proposal
Model Rule 1.18 was proposed by the ABA Commission on Evaluation of the Model Rules of Professional Conduct (Ethics 2000 Commission) and was adopted by the ABA House of Delegates in 2002. The purpose of the Rule was to identify a lawyer’s duties to prospective clients.
Critical to the application of Rule 1.18 is the definition of a “prospective client.” The Commission concluded that the definition must be sufficiently flexible to address the increasing volume of electronic communications that lawyers now receive from people who seek legal services. In a recently released Formal Ethics Opinion, the ABA Standing Committee on Ethics and Professional Responsibility identified the circumstances under which these communications might give rise to a prospective client-lawyer relationship,[1] and the Commission concluded that lawyers and the public would benefit from a codification of some elements of that Formal Opinion.
First, the Commission concluded that paragraph (a) of Model Rule 1.18 should be revised to include a more detailed definition of a “prospective client.” In particular, the proposed new language defines a “prospective client” as someone who has “a reasonable expectation that the lawyer is willing to consider forming a client-lawyer relationship.” The Commission concluded that this language, which is similar to language that currently appears in Comment [2], more accurately characterizes the applicable standard and is more capable of application to electronic communications.
The proposed change of the word “discusses” to “communicates” in paragraph (a) has a similar purpose: it is intended to make clear that a prospective client-lawyer relationship can arise even when an oral discussion between a lawyer and client has not taken place. The word “communicates” makes this point more clearly than the word “discusses” in that “communicates” more accurately describes current methods of discourse and anticipates future methods of interaction between lawyers and potential clients. It also more effectively alerts lawyers to the possible concerns associated with electronic communications.
For similar reasons, the Commission proposes to replace the phrase “had discussions with a prospective client” in paragraph (b) with the phrase “learned information from a prospective client.” The Commission is proposing conceptually similar changes in Comments [5] and [6].
Comment [3] elaborates on the new definition by identifying a number of factors that are relevant when determining whether someone has become a prospective client. The Commission concluded that this new Comment language will help to ensure that lawyers and the public better understand the potential consequences of communicating electronically and will give lawyers more guidance on how to avoid creating unintended client-lawyer relationships.
Finally, the Commission proposes to add a sentence at the end of Comment [2] to make clear that a person is not owed any duties under Rule 1.18 if that person contacts a lawyer for the purpose of disqualifying the lawyer from representing an opponent. Many ethics opinions have recognized that lawyers owe no duties to those who engage in this sort of behavior, which is commonly referred to as “taint shopping.”[2] In fact, some states have incorporated this concept into their own versions of Rule 1.18. See, e.g., New York R. Prof. C. 1.18(e)(2). The Commission concluded that the concept deserved expression in Comment [2] given the ease with which technology makes “taint shopping” possible.