Pennsylvania Code › Title 204 - JUDICIAL SYSTEM GENERAL PROVISIONS › Part V - PROFESSIONAL ETHICS AND CONDUCT › Subpart A - PROFESSIONAL RESPONSIBILITY › Chapter 81 - RULES OF PROFESSIONAL CONDUCT › Subchapter A - RULES OF PROFESSIONAL CONDUCT › CLIENT-LAWYER RELATIONSHIP › Rule 1.18 - Duties to Prospective Clients

Current through Register Vol. 54, No. 28, July 13, 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 information which may be
						significantly harmful to that person, 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 learned 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) When a lawyer has learned information as
						defined in paragraph (c), representation is permissible if:
(1) both the affected client and the
						prospective client have given informed consent, or;
(2) all of the following apply:
(i) the disqualified lawyer took reasonable
						measures to avoid exposure to more disqualifying information than was
						reasonably necessary to determine whether to represent the prospective
						client;
(ii) the disqualified
						lawyer is screened from any participation in the matter and is apportioned no
						part of the fee therefrom; and
(iii) 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.
						See also Comment (4). In contrast, a consultation does not occur if a person
						provides information to a lawyer, such as in an unsolicited e-mail or other
						communication, 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 communicates information
						unilaterally to a lawyer without any reasonable expectation that a
						client-lawyer relationship will be established, and is thus not a "prospective
						client." A person who participates in an initial consultation, or communicates
						information, with the intent to disqualify a lawyer from representing a client
						with materially adverse interests is not entitled to the protections of
						paragraphs (b) or (c) of this Rule. A person's intent to disqualify may be
						inferred from the circumstances.
(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 significantly harmful 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(e) 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)(1), imputation may be avoided if the lawyer obtains the informed consent of
						both the prospective and affected clients. In the alternative, imputation may
						be avoided if the conditions of paragraph (d)(2) are met and all disqualified
						lawyers are timely screened and written notice is promptly given to the
						prospective client. See Rule
						1.0(k)
						(requirements for screening procedures). Paragraph (d)(2)(ii) does not prohibit
						the screened lawyer from receiving a salary or partnership share established by
						prior independent agreement, but that lawyer may not receive compensation
						directly related to the matter in which the lawyer is disqualified.
(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.
(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.