The VBA Journal is the official publication of The Virginia Bar Association.
Issue link: http://vba.epubxp.com/i/99281
" Lawyers increasingly receive electronic communication from people seeking legal advice. Therefore, the defnition of prospective client is fexible enough to address this growing trend. course of representation of a former client only as Rule 1.6 or Rule 3.3 would permit or require, or, when the information has become generally known.10 DUTY OF LOYALTY A lawyer may not represent a client with interests material averse to a prospective client in the same or substantially similar matter if the prospective client revealed signifcantly harmful information to the lawyer regarding that matter, unless permitted by the exceptions listed in paragraph (d) of the Rule (discussed below).11 Tis duty is imputed on all lawyers in the frm unless an exception in paragraph (d) of the Rule applies.12 Te defnition of signifcantly harmful information is key to compliance with the Rule. Although neither the Rule itself nor the comments to the Rule provides a defnition, the ABA adopted a "signifcantly harmful" test to help lawyers avoid disqualifcation from representing current clients as the result of receiving information from a prospective client. Te test states "only if the confdential information is so extensive and sensitive as to create signifcant risk that the confdential information will be improperly used against the [prospective] client should the lawyer not be permitted to represent current clients on whose behalf the information is used."13 Using case law and ethics opinions, a Wisconsin Formal Opinion regarding Rule 1.18 identifed fve types of information that may be signifcantly harmful: 1. sensitive personal information, 2. premature possession of the prospective client's fnancial information, 3. settlement positions, 4. litigation strategies, and 5. information that could be used to the detriment of the prospective client, such as information that could be used for impeaching testimony.14 WAIVERS Te Rule 1.18(b) prohibition on the use of information and the Rule 1.18(c) prohibition on representation also may be avoided with efective waivers from the prospective client. A lawyer's initial conversations with the prospective client can include an agreement, made with informed consent, that no information learned during the consultation will result in the lawyer being disqualifed from representing a diferent client in the same matter.15 Te client may also consent to the lawyer's subsequent use of any information gained during the consultation.16 Te efectiveness of these agreements is generally determined by the client's understanding of the material risks and disadvantages of the informed consent.17 Any waiver should be as comprehensive as possible. Te lawyer must get informed consent from the prospective client and should explain that the lawyer may represent another party in the same matter and that the lawyer may have sensitive information related to the matter from the consultation with the prospective client.18 Te lawyer also should explain that the prospective client is not obligated to agree to the waiver. Te Rule 1.18(d) Exception.19 Rule 1.18(d) provides two exceptions to representing a client in the same or a substantially related matter with interests materially averse to those of a prospective client. It states that representation is permissible under two circumstances. First, the afected client and the prospective client can provide informed consent in writing.20 Second, it is permissible if the disqualifed lawyer: 1. took reasonable measures to limit the initial consultation to only that information necessary to determine whether or not to represent the prospective client; 2. is timely screened from further participation; 3. receives no part of the fee; and 4. provides written notice to the prospective client which includes a general description of the subject matter and the screening procedures employed.21 PRACTICAL ADVICE To avoid receiving signifcantly harmful information from a prospective client, the lawyer should limit the initial conversation to only that information needed to determine whether a confict of interest or other confict exists and whether the lawyer is capable and willing to represent the client in that matter.22 Te prospective client should be cautioned to not reveal any more information until the lawyer determines whether to form a client-lawyer relationship.23 Tis new rule provides protections as well as responsibilities in the digital world as well. Lawyers increasingly receive electronic communication from people seeking legal advice. WINTER 2012-2013 • 33