Following is the fourteenth in a series of posts about recent changes to the California Bar Association’s Rules of Professional Conduct (RPC), under the category of “Lawyer-Client Relations.” This post discusses a new rule related to “duties to a prospective client.”
As with other new RPC rules, Rule 1.18 does not directly correspond to a prior rule. It provides:
Rule 1.18 Duties to Prospective Client
(a) A person who, directly or through an authorized representative, consults a lawyer for the purpose of retaining the lawyer or securing legal service or advice from the lawyer in the lawyer’s professional capacity, is a prospective client.
(b) Even when no lawyer-client relationship ensues, a lawyer who has communicated with a prospective client shall not use or reveal information protected by Business and Professions Code section 6068, subdivision (e) and rule 1.6 that the lawyer learned as a result of the consultation, except as rule 1.9 would permit with respect to information of a former client.
(c) A lawyer subject to paragraph (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 from the prospective client information protected by Business and Professions Code section 6068, subdivision (e) and rule 1.6 that is material to the matter, except as provided in paragraph (d). If a lawyer is prohibited from representation under this paragraph, 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 paragraph (d).
(d) When the lawyer has received information that prohibits representation as provided in paragraph (c), representation of the affected client is permissible if:
(1) both the affected client and the prospective client have given informed written consent, or
(2) the lawyer who received the information took reasonable measures to avoid exposure to more information than was reasonably necessary to determine whether to represent the prospective client; and
(i) the prohibited 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 to enable the prospective client to ascertain compliance with the provisions of this rule.
As with other rules that are brand new in the CBA’s revised RPC, this will be a brief overview of Rule 1.18 rather than a comparison. As set forth above, this rule defines what a potential client is, in the context of a lawyer-client relationship. It also explains the obligation the attorney has not to reveal any information gained from consulting with the potential client, even if the prospective client does not choose to retain the attorney’s services. This rule also addresses the restrictions placed on a lawyer whose prospective client’s interests conflict with the interests of an existing client in a substantially related matter- and how that restriction affects other lawyers in the same firm.
An exception to this restriction occurs when one of the following two scenarios happens: (1) written consent is received from both the prospective client and the current (affected) client, as long as both individuals have been properly informed of the situation, or (2) the lawyer receiving the prospective client’s information takes reasonable measures to avoid exposing themselves to more information than necessary during the consultation AND they were properly screened from participation in the matter AND promptly provide the prospective client with written notice in order to enable the prospective client to determine whether the lawyer has complied with this rule.
This rule is virtually identical to the content found in Rule 1.18 of the American Bar Association (ABA)’s RPC.
Benefit: Generally speaking, this rule assures that any information a client shares with an attorney during an initial consultation will be held in strict confidence.
The information provided herein is informational only and should not be construed as legal advice or as an agreement for representation. This is not an advertisement. If you have an issue or dispute with your attorney, or are seeking advice with respect to your obligations, you should consult with an experienced attorney. Parker Law Group is a full-service litigation and transactional law firm. Mr. Parker has represented clients in professional malfeasance disputes for over 22 years. If you would like to schedule an initial consultation with Mr. Parker or his team, you can reach them at 916/996-0400 or at firstname.lastname@example.org. (An email to the law firm requesting a consultation does not create an attorney-client relationship or any agreement for representation by the firm.)
Rules of Professional Conduct, Confidentiality, Conflict of Interest, California Bar Association, American Bar Association, Legal Malpractice, Breach of Fiduciary, Client Rights