American College of Trust and Estate Counsel
3415 S. Sepulveda Boulevard
Suite 330
Los Angeles, CA 90034
310-398-1888
310-572-7280 (fax) |
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ACTEC COMMENTARIES ON THE MODEL RULES OF PROFESSIONAL CONDUCT
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(a) A person who discusses with a lawyer 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 had discussions with a prospective client shall not use or reveal information learned in the consultation, 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) When the lawyer has received disqualifying information as defined in paragraph ( c), representation is permissible if:
(1) both the affected client and the prospective client have given informed consent, confirmed in writing, or;
(2) the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; and
(i) the disqualified lawyer is timely screened from an participation in the matter and is apportioned no part of the fee therefrom; and
(ii) written notice is promptly given to the prospective client.
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| Scope of MRPC 1.18. The lawyer's ability to enter into a lawyer-client relationship with a prospective client is governed primarily by MRPC 1.7, which may prohibit the lawyer from entering into the relationship if there is a non-waivable conflict of interest. On the other hand, MRPC 1.18 necessarily implies that it applies only when the client does not retain the lawyer or the lawyer does not accept the representation. If the client hires the lawyer and the lawyer accepts the representation, confidentiality and conflict of interest issues will thereafter be resolved under MRPCs 1.6, 1.7 and 1.9.
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| When a lawyer discusses confidential information with a prospective client, MRPC 1.18(b) prohibits in all cases the disclosure or use of confidential information thereafter except as permitted in MRPC 1.9 regarding a lawyer’s disclosure or use of confidential information of a former client. However, as explained below, it may be possible for a lawyer to contract with a prospective client that the lawyer may disclose confidential information. See Agreement with Prospective Client to Waive Possible Conflict below.
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| MRPC 1.18(c) and (d) apply when a lawyer is contacted by a prospective client and the lawyer or the lawyer's firm either (i) currently represents a client adverse to the prospective client or (ii) in the future, accepts or considers accepting representation that is adverse to the prospective client.
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| Estate Planning Lawyers; Initial Interview and Conflicts Check. At the initial conference with a prospective estate planning client, the lawyer usually obtains confidential information regarding the prospective client's family, assets, and estate planning goals. As soon as practical the lawyer should run a conflicts check to determine whether the representation of the prospective client would result in a conflict of interest with an existing client. However, because of the generally non-adversarial nature of estate planning, gathering information from a prospective client at the initial conference will seldom disqualify the lawyer from representing a current or future client in a matter adverse to the prospective client. Under MRPC 1.18 (c) a lawyer who receives confidential information from a prospective client is prohibited from continuing an adverse representation “in the same or a substantially related matter” only “if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter”. In the estate planning context, it is very unlikely that the lawyer would already be involved in an adverse representation in the “same or a substantially related matter.” Accordingly, lawyers who interview prospective clients regarding estate planning services are not ordinarily required to take the same precautions that would be appropriate if the lawyer were interviewing the prospective client about a dispute or pending or threatened litigation.
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| If the lawyer were to accept the representation of the prospective client for the estate planning matter, MRPC 1.7 would govern whether the lawyer or the lawyer’s firm could continue a representation or undertake a future representation that is or would be adverse to the client.
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| Estate Litigation Lawyers and Prospective Clients. Lawyers also provide litigation and dispute resolution services to clients regarding wills, trusts, fiduciary administration, and other estate matters. In interviewing prospective clients regarding these matters, the lawyer may wish to limit the amount of confidential information obtained from the prospective client so that the lawyer could represent another party in the same or a substantially related matter. In doing so, the lawyer would need to avoid obtaining confidential information that was “significantly harmful” to the prospective client.
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| Client Discloses Confidential Information Unilaterally. As noted in Comment 2 to MRPC 1.18, a prospective client who unilaterally provides confidential information to a lawyer without having a reasonable expectation that the lawyer is willing to discuss representation of the prospective client is not entitled to the protections of MRPC 1.18. Thus, in those circumstances, the lawyer would not be precluded from continuing a representation adverse to the prospective client nor from taking a new matter adverse to the prospective client.
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| Lawyers Contacted by other Lawyers as a Consultant. Other lawyers (the “consulting lawyers”) will occasionally contact the lawyer for advice concerning one of the consulting lawyer's cases. When the consulting lawyer seeks advice concerning estate planning issues, given the non-adversarial nature of estate planning services, there is little risk of MRPC 1.18 precluding the lawyer from representing a party adverse to the consulting lawyer's client under the circumstances proscribed in MRPC 1.18. See Estate Planning Lawyers and Prospective Clients above. When the consulting lawyer seeks advice considering estate disputes, litigation, or administration matters, whether the consulting lawyer's client is a prospective client of the lawyer will depend on the facts and circumstances. Generally, if the consulting lawyer uses hypothetical questions and makes no promise to compensate the lawyer, the lawyer should not be precluded from representing a client adverse to the consulting lawyer’s client. Under those circumstances, the consulting lawyer's client and the consulting lawyer do not have a reasonable expectation that the lawyer will consider that he or she is being asked to be a lawyer for the consulting lawyer's client. However, if the consulting lawyer discloses the name of the client and other relevant facts or offers to pay for the advice obtained, depending on the facts and circumstances, the consulting lawyer's client may be considered a prospective client of the lawyer. Thus, the lawyer may decide to limit the amount of confidential information disclosed by the consulting lawyer to prevent the disclosure of confidential information “significantly harmful” to the consulting lawyer's client. This would protect the lawyer's ability to represent a client adverse to the consulting lawyer’s client in the same or a substantially related matter.
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| Lawyers as Expert Witnesses. When a lawyer is contacted by another lawyer or a prospective client about being an expert witness, generally the client will be considered a prospective client. Under MRPC 1.18, in order to be able to represent the opposing party as an expert witness, in the same or a substantially related matter, the lawyer would need to take steps to prevent the disclosure of confidential information significantly harmful to the prospective client.
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| Exception that Allows the Lawyer’s Firm to Represent a Party Adverse to the Prospective Client. Even if the lawyer obtained confidential information that was significantly harmful to a prospective client, under MRPC 1.18(d), the lawyer’s firm could undertake a representation adverse to the prospective client if the firm obtained the informed consent, confirmed in writing, of both the adverse client and the prospective client. Furthermore, the lawyer's firm could undertake the representation if the lawyer who consulted with the prospective client were properly screened from the new matter and the firm otherwise met the requirements of MRPC 1.18(d)(2). See also Comment 8 to MRPC 1.18.
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| Agreement with Prospective Client to Waive Possible Conflict. Comment 5 to MRPC 1.18 provides that a lawyer may, with the prospective client’s informed consent, condition the initial consultation on the prospective client’s agreement that the lawyer may represent a present or future client adverse to the prospective client in the same or a substantially related matter. Although not expressly required by the Comment, the lawyer should confirm any such agreement in writing.
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