The first of the duties is that the lawyer cannot disclose or use the information learned during consultation with a prospective client in the same manner by which an attorney cannot use or disclose information learned during consultation with an existing or former client. The ethics opinion clarified this.
The second duty clarified by the opinion, in fact, restricts attorney activities to a great extent, in as much as it prohibits lawyers who have had a discussion with a prospective client over any matter to represent a client with “materially adverse” interests to the same or related matters. However, the restriction was found justified if the information received from the prospective client had the possibility of proving “significantly harmful” to the prospective client.
For example, the opinion clarified, that in the same manner as that of a beauty contest, companies often shop for law firms and have discussions with multiple law firms. However, if confidential information that can be significantly harmful to the company in the hands of an adversary is discussed during such consultations, then the law firm, to which such information had been disclosed, would be precluded from defending an adversary of the company.
However, the opinion also clarified that the standard of review used to determine what is “significantly harmful” is less stringent than the rule preventing attorneys in case of conflicts of interest arising from former or existing clients.
The opinion mentioned, “A lawyer’s discussion with a prospective client usually are limited in time and depth and leave both the prospective client and the lawyer free (and sometimes required) to proceed no further … prospective clients should therefore receive some, but not all, of the protection afforded to clients.”
The opinion also mentioned exceptions to Rule 1.18 including cases where supposedly prohibited representation can be taken up if the affected or prospective client provides a no-objection or informed consent. A similar also exists in the case of the law firm of a disqualified lawyer’s firm taking up a case where the law firm establishes an ethical screen between the lawyers handling the case and the lawyer disqualified under Rule 1.18 from handling a matter.
