The VBA Journal is the official publication of The Virginia Bar Association.
Issue link: http://vba.epubxp.com/i/99281
ETHICS BY ROBERT L. FREED1 FREED & SHEPHERD, P.C. Rule 1.18 duties to a prospective client T he Virginia State Bar's Standing Committee on Legal Ethics proposed the adoption of ABA Model Rule 1.18 with the modifcations discussed below, and the Supreme Court of Virginia Court adopted Virginia's version of Rule 1.18, efective June 21, 2011. Te Rule2 addresses the ethical duties that a lawyer owes to a prospective client with whom the lawyer has communicated but has not agreed to represent. IMPACT Rule 1.18 afords prospective clients some, but not all, of the protection aforded clients. Te reason not all protections are extended is twofold. First, a lawyer's discussions with a prospective client are both limited and non-binding. Te lawyer and prospective client are free to proceed no further than the initial discussions. Second, the principle of loyalty diminishes in importance when no client-lawyer relationship is formed, either because of a confict of interest, or the prospective client not retaining the lawyer.3 PROSPECTIVE CLIENT A prospective client, within the meaning of the Rule, is a person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter. However, a person who communicates information unilaterally to a lawyer without a reasonable expectation that the lawyer is willing to form a client-lawyer relationship is not a prospective client.4 Additionally, a person who communicates with a lawyer for the purpose of disqualifying the lawyer from representing an opponent also is not a prospective client and is not owed any duties under Rule 1.18.5 Lawyers do not owe any ethical duties when this type of tactic is used, commonly referred to as "taint shopping."6 A person is a prospective client only if there is a reasonable expectation that the lawyer is willing to form a clientlawyer relationship.7 CONFIDENTIALITY Except as permitted by Rule 1.9 or as permitted by a valid waiver from the prospective client, the lawyer is not permitted to disclose the prospective client's confdential information.8 Lawyers must treat prospective clients the same way they would former clients in regard to confdentiality.9 Rule 1.9 permits disclosure of information relating to or gained in the WINTER 2012-2013 • 31