ABA issues new ethics guidance for communicating with prospective clients

The American Bar Association Standing Committee on Ethics and Professional Responsibility released guidance last week to help lawyers determine if information received from a prospective client could disqualify the lawyer or the lawyer’s firm from representing a client.

Formal Opinion 492 interprets Model Rule 1.18, which addresses a lawyer’s duties to prospective clients, of the ABA Model Rules of Professional Conduct. The rule governs when a lawyer is limited from accepting a new client whose interests are materially adverse to a former prospective client in the same or a substantially related matter. Rule 1.18 prohibits the representation if the prospective client provided the lawyer with information that “could be significantly harmful” to the prospective client in the new matter.

The opinion explains “significantly harmful” – a phrase in 1.18(c)— and explores how that would be applied in several situations.

“Whether information that ‘could be significantly harmful’ has been disclosed by a prospective client is a fact-specific inquiry and determined on a case-by-case basis,” the formal opinion said. “The test focuses on the potential harm in the new matter.”

The opinion uses a number of state ethics opinions and a decision from the North Dakota Supreme Court to explain that information is “significantly harmful” if it includes, for example, views of the prospective client on strategies for managing a situation; settlement issues or trial strategy; personal accounts of relevant events; sensitive personal information, including financial information; or other information that is sensitive or privileged.

The opinion also notes that under Rule 1.18, even if the lawyer learned information that could be significantly harmful to the prior prospective client in the new matter, the lawyer’s firm can accept the new matter if the lawyer is screened from the new matter or the prospective client provides informed consent.

The ABA Standing Committee on Ethics and Professional Responsibility periodically issues ethics opinions to guide lawyers, courts and the public in interpreting and applying ABA model ethics rules to specific issues of legal practice, client-lawyer relationships and judicial behavior. Recent ABA ethics opinions are available on the ABA Center for Professional Responsibility website, www.americanbar.org/groups/professional_responsibility.