North Carolina Administrative Code › Title 27 - STATE BAR › Chapter 02 - RULES OF PROFESSIONAL CONDUCT OF THE NORTH CAROLINA STATE BAR › Section .0100 - CLIENT LAWYER RELATIONSHIP › Section 02 RULE 1.18 - DUTIES TO PROSPECTIVE CLIENT

Current through Register Vol. 39, No. 2, July 15, 2024
(a) A person who
				consults with a lawyer about the possibility of 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 learned information from a prospective client shall
				not use or reveal that information, 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 information from the prospective client that could be significantly
				harmful to that person in the matter, except as provided in paragraph (d). If a
				lawyer is disqualified 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) Representation is permissible if both the
				affected client and the prospective client have given informed consent,
				confirmed in writing, or:
(1) the disqualified
				lawyer is timely screened from any participation in the matter; and
(2) written notice is promptly given to the
				prospective client.
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 consultations 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] A person becomes a prospective client by
				consulting with a lawyer about the possibility of forming a client-lawyer
				relationship with respect to a matter. Whether communications, including
				written, oral, or electronic communications, constitute a consultation depends
				on the circumstances. For example, a consultation is likely to have occurred if
				a lawyer, either in person or through the lawyer's advertising in any medium,
				specifically requests or invites the submission of information about a
				potential representation without clear and reasonably understandable warnings
				and cautionary statements that limit the lawyer's obligations, and a person
				provides information in response. In such a situation, to avoid the creation of
				a duty to the person under this Rule, a lawyer has an affirmative obligation to
				warn the person that a communication with the lawyer will not create a
				client-lawyer relationship and information conveyed to the lawyer will not be
				confidential or privileged.
See also
Comment [4]. In contrast,
				a consultation does not occur if a person provides information to a lawyer in
				response to advertising that merely describes the lawyer's education,
				experience, areas of practice, and contact information, or provides legal
				information of general interest. Such a person is communicating information
				unilaterally to a lawyer, without any reasonable expectation that the lawyer is
				willing to discuss the possibility of forming a client-lawyer relationship, and
				is thus not a "prospective client." Moreover, a person who communicates with a
				lawyer for the purpose of disqualifying the lawyer is not a "prospective
				client."
[3] It is often necessary
				for a prospective client to reveal information to the lawyer during an initial
				consultation prior to the decision about formation of a client-lawyer
				relationship. The lawyer often must learn such information to determine whether
				there is a conflict of interest with an existing client and whether the matter
				is one that the lawyer is willing to undertake. Paragraph (b) prohibits the
				lawyer from using or revealing that information, except as permitted by Rule
				1.9, even if the client or lawyer decides not to proceed with the
				representation. The duty exists regardless of how brief the initial conference
				may be.
[4] In order to avoid
				acquiring disqualifying information from a prospective client, a lawyer
				considering whether or not to undertake a new matter should limit the initial
				consultation to only such information as reasonably appears necessary for that
				purpose. Where the information indicates that a conflict of interest or other
				reason for non-representation exists, the lawyer should so inform the
				prospective client or decline the representation. If the prospective client
				wishes to retain the lawyer, and if consent is possible under Rule 1.7, then
				consent from all affected present or former clients must be obtained before
				accepting the representation.
[5] A
				lawyer may condition a consultation with a prospective client on the person's
				informed consent that no information disclosed during the consultation will
				prohibit the lawyer from representing a different client in the matter. See
				Rule 1.0(f) for the definition of informed consent. If the agreement expressly
				so provides, the prospective client may also consent to the lawyer's subsequent
				use of information received from the prospective client.
[6] Even in the absence of an agreement,
				under paragraph (c), the lawyer is not prohibited from representing a client
				with interests adverse to those of the prospective client in the same or a
				substantially related matter unless the lawyer has received from the
				prospective client information that could be significantly harmful if used in
				the matter.
[7] Under paragraph
				(c), the prohibition in this Rule is imputed to other lawyers as provided in
				Rule 1.10, but, under paragraph (d), imputation may be avoided if the lawyer
				obtains the informed consent, confirmed in writing, of both the prospective and
				affected clients. In the alternative, imputation may be avoided if all
				disqualified lawyers are timely screened and written notice is promptly given
				to the prospective client.
See
Rule 1.0(l) (requirements for
				screening procedures). Paragraph (d)(1) does not prohibit the screened lawyer
				from receiving a salary or partnership share established by prior independent
				agreement nor does it specifically prohibit the receipt of a part of the fee
				from the screened matter. However, Rule 8.4(c) prohibits the screened lawyer
				from participating in the fee if such participation was impliedly or explicitly
				offered as an inducement to the lawyer to become associated with the
				firm.
[8] Notice, including a
				description of the screened lawyer's prior representation and of the screening
				procedures employed, generally should be given as soon as practicable after the
				need for screening becomes apparent. When disclosure is likely to significantly
				injure the client, a reasonable delay may be justified.
[9] For the duty of competence of a lawyer
				who gives assistance on the merits of a matter to a prospective client, see
				Rule 1.1. For a lawyer's duties when a prospective client entrusts valuables or
				papers to the lawyer's care,
see
Rule 1.15. For the special
				considerations when a prospective client has diminished capacity, see Rule
				1.14.