N.D. R. Prof. Cond. 1.18
N.d. R. Prof. Cond. 1.18
Comment
Definition of Potential Client
[1] Potential clients, like clients, may disclose information to a lawyer, place documents or other property in the lawyer's custody, or rely on the lawyer's advice. A lawyer's consultations with a potential client usually are limited in time and depth and leave both the potential client and the lawyer free (and sometimes required) to proceed no further. Hence, potential clients should receive some but not all of the protection afforded clients.
[2] A person becomes a potential client by consulting with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter. Whether communications, including written, oral, or electronic communications, constitute a consultation depends on the circumstances. For example, a consultation is likely to have occurred if a lawyer, either in person or through the lawyer's advertising in any medium, specifically requests or invites the submission of information about a potential representation without clear and reasonably understandable warnings and cautionary statements that limit the lawyer's obligations, and a person provides information in response. See also Comment [4]. In contrast, a consultation does not occur if a person provides information to a lawyer in response to advertising that merely describes the lawyer's education, experience, areas of practice, and contact information, or provides legal information of general interest. Such a person communicates information unilaterally to a lawyer, without any reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship, and is thus not a "potential client". Moreover, a person who communicates with a lawyer for the purpose of disqualifying the lawyer is not a "potential client".
Initial Consultation
[3] It is often necessary for a potential client to reveal information to the lawyer during an initial consultation prior to the decision about formation of a client-lawyer relationship. The lawyer often must learn such information to determine whether there is a conflict of interest with an existing client and whether the matter is one that the lawyer is willing to undertake. Paragraph (b) prohibits the lawyer from using or revealing information, except as permitted by Rule 1.9, even if the client or lawyer decides not to proceed with the representation. The duty exists regardless of how brief the initial conference may be. A lawyer is not prohibited from revealing to an existing client that an opposing party has contacted the lawyer seeking representation.
[4] In order to avoid acquiring significantly harmful information from a potential client, a lawyer considering whether or not to undertake a new matter should limit the initial consultation to only such information as reasonably appears necessary for that purpose. Where the information indicates that a conflict of interest or other reason for non-representation exists, the lawyer should so inform the potential client or decline the representation. If the potential client wishes to retain the lawyer, and if consent is allowed under Rule 1.7(c), then consent from all affected present or former clients must be obtained before accepting the representation.
[5] A lawyer may condition a consultation with a potential client on the person's consent that no information disclosed during the consultation will prohibit the lawyer from representing a different client in the matter. If the agreement expressly so provides, the potential client may also consent to the lawyer's subsequent use of information received from the potential client.
[6] Even in the absence of an agreement, under paragraph (c), the lawyer is not prohibited from representing a client with interests adverse to those of the potential client in the same or a substantially related matter unless the lawyer has received from the potential client information that could be significantly harmful if used in the matter.
[7] Under paragraph (c), the prohibition in this Rule is imputed to other lawyers as provided in Rule 1.10, but, under paragraph (d)(1), imputation may be avoided if the lawyer obtains consent from both the potential and affected clients. Obtaining the client's consent in writing is the preferred practice. Lack of a writing may make it difficult to prove client consent if a dispute arises later. In the alternative, imputation may be avoided if the conditions of paragraph (d)(2) are met and notice is promptly given to the potential client.
[8] Notice, including a general description of the subject matter about which the lawyer was consulted generally should be given as soon as practical.
[9] For the duty of competence of a lawyer who gives assistance on the merits of a matter to a potential client, see Rule 1.1. For a lawyer's duties when a potential client entrusts valuables or papers to the lawyer's care, see Rule 1.15.
.Reference: Minutes of the Professional Conduct Subcommittee of the Attorney Standards Committee on 11/08/85, 01/31/86 and 03/15/86; Minutes of the Joint Committee on Attorney Standards Meetings of 09/15/95, 12/01/95, 06/11/96; 02/27/04; 04/16/04, 03/18/05, 06/14/05, 09/09/05. .