For the Defense - Vol. 5, Issue 4 - 35

When the Client Doesn't
Hire You: Is There a
Conflict?

L

et's face it, news of multiple defendant indictments
and large-scale grand jury investigations are
music to a private practitioner's ears; business
is coming! But what happens when the first codefendant or witness through the door decides not
to hire you and the next co-defendant wants to? Has
a conflict been created that prevents you from taking
on the second representation? What obligations do
attorneys have to individuals who consult with them
but do not hire them?

Rule 1.18: Duties to Prospective Clients
As I like to say: there's a Rule for that! Rule of
Professional Conduct 1.18 governs this situation and
states as follows:
a) A person who consults with a lawyer about the
possibility of forming a client-lawyer relationship
with respect to a matter is a prospective client.
b) Even when no client-lawyer relationship ensues,
a lawyer who has learned information from
a prospective client shall not use or reveal
information which may be significantly harmful
to that person, except as Rule 1.9 would permit
with respect to information of a former client.
c) A lawyer subject to paragraph (b) shall not
represent a client with interests materially
adverse to those of a prospective client in the

Ellen C. Brotman

same or a substantially related matter if
the lawyer learned information from the
prospective client that could be significantly
harmful to that person in the matter, except
as provided in paragraph (d). If a lawyer is
disqualified from representation under this
paragraph, no lawyer in a firm with which that
lawyer is associated may knowingly undertake
or continue representation in such a matter,
except as provided in paragraph (d).
d)	When a lawyer has learned information as
defined in paragraph (c), representation is
permissible if:
1)	 both the affected client and the
prospective client have given informed
consent; or, all of the following apply:
i) the disqualified lawyer took
reasonable measures to avoid
exposure to more disqualifying
information than was reasonably
necessary to determine whether to
represent the prospective client;
ii) the disqualified lawyer is screened
from any participation in the matter
and is apportioned no part of the fee
therefrom; and
iii) written notice is promptly given
to the prospective client. (emphasis
added.)
Vol. 5, Issue 4 l For The Defense

35



For the Defense - Vol. 5, Issue 4

Table of Contents for the Digital Edition of For the Defense - Vol. 5, Issue 4

Contents
For the Defense - Vol. 5, Issue 4 - 1
For the Defense - Vol. 5, Issue 4 - 2
For the Defense - Vol. 5, Issue 4 - Contents
For the Defense - Vol. 5, Issue 4 - 4
For the Defense - Vol. 5, Issue 4 - 5
For the Defense - Vol. 5, Issue 4 - 6
For the Defense - Vol. 5, Issue 4 - 7
For the Defense - Vol. 5, Issue 4 - 8
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For the Defense - Vol. 5, Issue 4 - 22
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For the Defense - Vol. 5, Issue 4 - 52
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