Model Rule 1.18: Duties to Prospective Client
Rule 1.18 governs the duties a lawyer owes to someone who discusses the possibility of forming a client-lawyer relationship but never actually becomes a client. It creates confidentiality protections similar to Rule 1.6 and imposes conflict-of-interest restrictions similar to Rule 1.9, even though no representation ever began.
When it applies
This comes up when a person consults a lawyer (in person, by phone, or sometimes by website intake form) seeking representation, shares information, and the lawyer either declines the matter or is never retained; the MPRE tests whether students realize confidentiality and imputation rules still apply to these "prospective clients." It frequently appears in fact patterns involving initial consultations, conflicts checks, and lawyers switching sides afterward.
What the rule requires
- A person who discusses possible representation with a lawyer, even if no representation results, is a prospective client entitled to protection
- The lawyer must not use or reveal information learned from the consultation, similar to the confidentiality duty under Rule 1.6
- If the lawyer received disqualifying information (information that could significantly harm the prospective client in the matter), the lawyer personally is barred from representing a client with materially adverse interests in the same or a substantially related matter
- The disqualification of one lawyer is imputed to the entire firm unless both affected parties give informed consent, confirmed in writing, or the disqualified lawyer took reasonable measures to limit exposure to disqualifying information and the firm meets specific screening and notice conditions
- The lawyer may condition the initial consultation on the prospective client's informed consent to the lawyer's future use of disclosed information, or may limit what is disclosed
Exceptions
- If the lawyer took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to decide whether to take the matter, the lawyer personally remains disqualified, but the firm may avoid imputation through timely screening, no fee share, and prompt written notice
- If both the affected prospective client and the current client give informed consent, confirmed in writing, the lawyer or firm may proceed despite the conflict
- Imputation to the firm can be avoided if the disqualified lawyer took reasonable measures to limit the disqualifying information received, is timely screened, receives no part of the fee from the matter, and written notice is promptly given to the prospective client
- A person who communicates with a lawyer solely to disqualify that lawyer, without a genuine intent to seek representation, is not a prospective client under this rule
How the MPRE tests Model Rule 1.18
- Students forget that no attorney-client relationship ever needs to form for Rule 1.18 duties to attach
- Students confuse Rule 1.18's more lenient conflict standard with Rule 1.9 for former clients: under Rule 1.18 a lawyer is disqualified only if the lawyer received information that could be significantly harmful, while under Rule 1.9 a lawyer is barred from a substantially related adverse matter without the former client's informed consent, confirmed in writing, regardless of whether harmful information was received
- Questions test whether the information received was actually 'significantly harmful' before triggering disqualification; casual or minimal disclosures may not trigger the bar
- Students overlook that a lawyer can proactively limit disclosures or get advance consent during the initial consult to avoid future conflicts
Example
A potential client meets with Lawyer to discuss a business dispute, revealing sensitive financial strategy, but ultimately hires a different attorney. Months later, Lawyer's firm is asked to represent the opposing party in a related lawsuit. Because the information shared was significantly harmful and material to the same dispute, Lawyer is personally disqualified, and the firm is disqualified too unless both the prospective client and the new client give informed consent, confirmed in writing, or Lawyer had taken reasonable measures to limit the information received to what was reasonably necessary to decide whether to take the matter and the firm timely screens Lawyer, denies Lawyer any fee from the matter, and gives prompt written notice to the prospective client.
Related rules
A plain-English summary of the ABA Model Rule, not the rule text. Your jurisdiction's version of the rule controls in practice.