August 1, 2006 March 1, 2016
RULE 1.18 DUTIES TO POTENTIAL CLIENT
1 (a) A person who
discusses consults with a lawyer about the possibility of forming a
2 client-lawyer relationship with respect to a matter is a potential client.
3 (b) Even when no lawyer-client relationship ensues, a lawyer who has
had discussions with
4 learned information from a potential client shall not use or reveal
significantly harmful that
learned in that consultation, except as Rule 1.9 would permit with respect to
6 information of a former client.
7 (c) A lawyer subject to paragraph (b) shall not represent a client with interests materially
8 adverse to those of a potential client in the same or a substantially related matter if the lawyer
9 received information from the potential client that could be significantly harmful to that
10 person in the matter, except as provided in paragraph (d). If a lawyer is disqualified from
11 representation under this paragraph, no lawyer in a firm with which that lawyer is associated
12 may knowingly undertake or continue representation in such a matter, except as provided in
13 paragraph (d).
14 (d) When the lawyer has received significantly harmful information, representation is
15 permissible if:
16 (1) both the affected client and the potential client have given consent; or
17 (2) the lawyer who received the information took reasonable measures to avoid exposure
18 to more significantly harmful information than was reasonably necessary to determine
19 whether to represent the potential client and notice is promptly given to the potential client.
22 Definition of Potential Client
The term "potential client" is used in this Rule to eliminate any confusion with the term
"prospective client" as used in Rule 7.3. Potential clients, like clients, may disclose
25 information to a lawyer, place documents or other property in the lawyer's custody, or rely
26 on the lawyer's advice. A lawyer's
discussions consultations with a potential client usually
27 are limited in time and depth and leave both the potential client and the lawyer free (and
28 sometimes required) to proceed no further. Hence, potential clients should receive some but
29 not all of the protection afforded clients.
Not all persons who communicate information to a lawyer are entitled to protection under
this Rule. A person who communicates A person becomes a potential client by consulting
32 with a lawyer about the possibility of forming a client-lawyer relationship with respect to a
33 matter. Whether communications, including written, oral, or electronic communications,
34 constitute a consultation depends on the circumstances. For example, a consultation is likely
35 to have occurred if a lawyer, either in person or through the lawyer's advertising in any
36 medium, specifically requests or invites the submission of information about a potential
37 representation without clear and reasonably understandable warnings and cautionary
38 statements that limit the lawyer's obligations, and a person provides information in response.
39 See also Comment . In contrast, a consultation does not occur if a person provides
40 information to a lawyer in response to advertising that merely describes the lawyer's
41 education, experience, areas of practice, and contact information, or provides legal
42 information of general interest. Such a person communicates information unilaterally to a
43 lawyer, without any reasonable expectation that the lawyer is willing to discuss the
44 possibility of forming a client-lawyer relationship, and is thus not a "potential client"
the meaning of paragraph (a).
46 Moreover, a person who communicates with a lawyer for the purpose of disqualifying the
47 lawyer is not a "potential client".
48 Initial Consultation
49  It is often necessary for a potential client to reveal information to the lawyer during an
50 initial consultation prior to the decision about formation of a client-lawyer relationship. The
51 lawyer often must learn such information to determine whether there is a conflict of interest
52 with an existing client and whether the matter is one that the lawyer is willing to undertake.
53 Paragraph (b) prohibits the lawyer from using or revealing information, except as permitted
54 by Rule 1.9, even if the client or lawyer decides not to proceed with the representation. The
55 duty exists regardless of how brief the initial conference may be. A lawyer is not prohibited
56 from revealing to an existing client that an opposing party has contacted the lawyer seeking
58  In order to avoid acquiring significantly harmful information from a potential client, a
59 lawyer considering whether or not to undertake a new matter should limit the initial
interview consultation to only such information as reasonably appears necessary for that
61 purpose. Where the information indicates that a conflict of interest or other reason for
62 non-representation exists, the lawyer should so inform the potential client or decline the
63 representation. If the potential client wishes to retain the lawyer, and if consent is allowed
64 under Rule 1.7(c), then consent from all affected present or former clients must be obtained
65 before accepting the representation.
66  A lawyer may condition
conversations a consultation with a potential client on the
67 person's consent that no information disclosed during the consultation will prohibit the
68 lawyer from representing a different client in the matter. If the agreement expressly so
69 provides, the potential client may also consent to the lawyer's subsequent use of information
70 received from the potential client.
71  Even in the absence of an agreement, under paragraph (c), the lawyer is not prohibited
72 from representing a client with interests adverse to those of the potential client in the same
73 or a substantially related matter unless the lawyer has received from the potential client
74 information that could be significantly harmful if used in the matter.
75  Under paragraph (c), the prohibition in this Rule is imputed to other lawyers as provided
76 in Rule 1.10, but, under paragraph (d)(1), imputation may be avoided if the lawyer obtains
77 consent from both the potential and affected clients. Obtaining the client's consent in writing
78 is the preferred practice. Lack of a writing may make it difficult to prove client consent if a
79 dispute arises later. In the alternative, imputation may be avoided if the conditions of
80 paragraph (d)(2) are met and notice is promptly given to the potential client.
81  Notice, including a general description of the subject matter about which the lawyer was
82 consulted generally should be given as soon as practical.
83  For the duty of competence of a lawyer who gives assistance on the merits of a matter to
84 a potential client, see Rule 1.1. For a lawyer's duties when a potential client entrusts
85 valuables or papers to the lawyer's care, see Rule 1.15.
86 Rule 1.18 amended effective 03/01/97, 08/01/06, 03/01/16.
87 Reference: Minutes of the Professional Conduct Subcommittee of the Attorney Standards
88 Committee on 11/08/85, 01/31/86 and 03/15/86; Minutes of the Joint Committee on Attorney
89 Standards Meetings of 09/15/95, 12/01/95, 06/11/96; 02/27/04; 04/16/04, 03/18/05,
90 06/14/05, 09/09/05, 06/ 10/2014, 09/12/14.