Why Prospective Clients Are Protected

Duties to Prospective Clients

Why Prospective Clients Are Protected

Legal relationships begin with a conversation, and Rule 1.18 is built on that fact. A person who consults a lawyer about the possibility of forming a client-lawyer relationship on a matter is a prospective client.¹ Nobody can choose a lawyer without describing the problem, and the lawyer cannot decide whether to take it without hearing enough to evaluate it. The lawyer must also learn enough to tell whether the matter conflicts with an existing client. The comment makes the point directly: a prospective client often must reveal information during the initial consultation, and the lawyer often must learn it to determine whether there is a conflict of interest with an existing client and whether the matter is one the lawyer is willing to undertake.²

Candor therefore carries a risk, and the rule removes it. If a would-be client’s words had no protection, the person would have to choose between speaking freely to a lawyer who might use the information and withholding the facts the lawyer needs to run a conflict check. The Model Rule closes that gap: even when no client-lawyer relationship ensues, a lawyer who learned information from a prospective client may not use or reveal it, except as Rule 1.9 would permit for information of a former client.³ The comment adds that the duty exists regardless of how brief the initial conference may be, so the length of the meeting does not control the protection.⁴

The American Bar Association added Rule 1.18 to the Model Rules in 2002 to address these questions directly, by creating the special category of the “prospective client.” All but a couple of states have since adopted it.⁵ One court described the rule’s practical purpose this way: it protects parties who disclosed information during a preliminary discussion “without requiring a court to strain to find that the preliminary discussion created a representation.”⁶ Without the category, a court that wanted to shelter a confiding person would have had to stretch to find a representation in what may have been a brief exchange. Under Rule 1.18 the court asks a simpler question: whether the person consulted the lawyer about possible retention.

Full client-level protection would create the opposite problem. The American Law Institute reasoned that prospective clients are like clients in that they often disclose confidential information, place documents or other property in the lawyer’s custody, and rely on the lawyer’s advice. It also reasoned that, given the limits of consultations, “prospective clients should receive some but not all of the protection afforded clients.”⁷ The comment gives the same reason in nearly the same words. A lawyer’s discussions with a prospective client are usually limited in time and depth and leave both sides free to proceed no further, and the lawyer is sometimes required to do so.⁸ The New Jersey Supreme Court, in O Builders & Assocs. v. Yuna Corp., described the rule as striking a delicate balance. On one side is the client’s right to protect communications made in a consultation that precedes retention. On the other is the lawyer’s right to represent clients without being unduly restricted by the yoke of short-lived consultations that never ripen into a relationship.⁹

The protective side of that balance reaches a person the lawyer never agreed to represent.

The limiting side is where students tend to over-read the rule. Does a lawyer who once met with one party to a dispute become permanently unavailable to the other party? The answer turns on what the lawyer actually learned.

The rest of this chapter follows the rule’s own sequence. It starts with who qualifies as a prospective client, then takes up the confidentiality duty and the bar on adverse representation. It next turns to the imputation of one lawyer’s disqualification to the rest of the firm, and it ends with the ways to cure the conflict.