Recently, the State Bar of California Standing Committee on Professional Responsibility and Conduct (COPRAC)* published concerning the ethical duties owed by an interviewing lawyer and his or her law firm to a prospective client. These duties are addressed in Rule 1.18 of the California Rules of Professional Conduct.
When a person is a prospective client within the meaning of rule 1.18(a), the interviewing lawyer owes the prospective client the same duty of confidentiality pursuant to rules 1.6 and 1.9 even though no lawyer-client relationship thereafter ensues. (Rule 1.18(a)). The lawyer may not use or disclose such information without the prospective client’s informed written consent. (Rule 1.18(b), Rule(a)). This is so even if the information would be material to the representation of an existing client of the lawyer or the lawyer’s law firm.
An interviewing lawyer who receives material confidential information from a prospective client is prohibited from accepting representation materially adverse to the prospective client in the same or a substantially related matter. This prohibition extends to members of the lawyer’s law firm as well. These prohibitions may not apply if the client has provided informed, written consent either before the interview or after. Additionally, such prohibition can be avoided as to the lawyer’s law firm if the lawyer and his or her firm complied with Rule 1.18(d) which provides:
When the lawyer has received information that prohibits representation… 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 a timely ethical screen is put in place by the law firm and “written notice is timely given to the prospective client.
A significant aspect of the Opinion is its discussion of the “reasonable measures” that are contemplated under Rule 1.18(d). The Opinion explains those measures are only those that are necessary to determine whether to represent a prospective client as well as whether the proposed representation was ethically proper and economically acceptable. This may include:
- Information as to whether the client’s position is tenable;
- Information relating to the client’s reputation;
- Information relating to the client’s financial condition;
- The merits of the claim; and
- The predicted range of recoveries.
This opinion discusses different scenarios that may arise when a lawyer has conducted an interview with a prospective client and the law firm is not engaged by the prospective client. Each scenario illustrates the conditions that may or may not permit an ethical screen in the absence of an informed consent, governed by rule 1.18. Although this opinion is not binding, it should provide useful guidance to assure compliance with the ethical duties owed to a prospective client.
*Marshall Whitney is a former member of CORPAC. To read the full opinion click here.
