For the Defense - Vol. 5, Issue 4 - 36

To sum up this fairly complicated Rule:
*	a lawyer who receives information from a
prospective client that could be " significantly
harmful " (to the prospective client)
*	cannot then represent another client " in the
same or a substantially related matter "
*	
where the second client's interests are
materially adverse to those of the prospective
client
*	 unless the conflict is waived by the prospective
client.

impact on settlement proposals and trial strategy;
the client's personal thoughts and impression
about the facts of the case; or information that
is extensive, critical, or of significant use. " 2 In a
criminal case, significantly harmful information
could be anything that relates to the factual basis
of an element of the offense, the client's character,
or any witnesses. As with any other conflict
analysis, this is a fact-based inquiry that will
depend on what is disclosed and its importance to
the defense.

Still confused? Luckily, there's help available.

Easy Ways to Prevent Conflict

The ABA Guidance on Rule 1.18

As the Opinion points out, there are steps a
lawyer can take to follow Rule 1.18, protect
prospective clients, and avoid a disqualifying
conflict of interest. First, " lawyers should warn
prospective clients against disclosing detailed
information " so as not to receive " significantly
harmful information " in the first place. Comment
[4] to the Rule advises that a lawyer " should limit
the initial consultation to only such information as
reasonably appears necessary " in order to decide
whether to take on a case. However, attorneys
shouldn't take that advice as a warning against
having in-depth initial consultations, but rather
as " a reminder that the more information learned
in a consultation, the more likely that the lawyer
may be precluded from representing other parties
in a substantially related matter. " 3

In June, the American Bar Association's
Professional Responsibility Committee issued
Formal Opinion 492 ( " the Opinion " ), which
provides a cogent analysis of the Rule and some
advice on how to manage the tension between
the need to interview clients and the desire not to
create a disqualifying conflict.1
The first question the Opinion illuminates is:
who is a prospective client? The Rule states that
a prospective client is a " person who consults
with a lawyer about the possibility of forming
a client-lawyer relationship with respect to a
matter. " Comment [2] to the Rule makes clear
that a prospective client does not include the
" cocktail party conversation " on the one hand
or, on the other hand, one who " does not have
reasonable intent to retain the lawyer, but instead
is merely attempting to disqualify the lawyer from
representing anyone else in the matter. " Instead, a
prospective client is one who seeks representation
related to a specific matter or issue.
A consultation with a prospective client typically
involves discussion of conflicts, fee agreements,
and a general exploration of the facts. Consultation
alone does not create a conflict of interest. The
triggering factor for the conflict is whether
information is disclosed that could be " significantly
harmful " to the prospective client in a future
matter. The Opinion partially relies on a definition
adopted by North Dakota Supreme Court defining
" significantly harmful information " as including
" sensitive or privileged information... that has
long-term significance or continuing relevance to
the matter, such as motives, litigation strategies
or potential weakness...[,] premature possession
of information that could have a substantial
36

For The Defense l Vol. 5, Issue 4

As the Opinion also notes, Comment [5] of
the Rule states that a lawyer " may condition
a consultation with a prospective client on the
person's informed consent that no information
disclosed during the consultation will prohibit the
lawyer from representing a different client in the
matter. " Informed consent is defined in RPC 1.0
(e) as " consent by a person to a proposed course
of conduct after the lawyer has communicated
adequate information and explanation about
the material risks of and reasonably available
alternatives to the proposed course of conduct. "
Also note, if you encourage contact through
a website, be sure that your contact form is
accompanied by a statement that " sending
information to the firm will not create a clientlawyer relationship and the information may not
be kept privileged or confidential. "
If confidential and potentially damaging
information has already been disclosed and a
conflict of interest identified, the new matter may



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
For the Defense - Vol. 5, Issue 4 - 9
For the Defense - Vol. 5, Issue 4 - 10
For the Defense - Vol. 5, Issue 4 - 11
For the Defense - Vol. 5, Issue 4 - 12
For the Defense - Vol. 5, Issue 4 - 13
For the Defense - Vol. 5, Issue 4 - 14
For the Defense - Vol. 5, Issue 4 - 15
For the Defense - Vol. 5, Issue 4 - 16
For the Defense - Vol. 5, Issue 4 - 17
For the Defense - Vol. 5, Issue 4 - 18
For the Defense - Vol. 5, Issue 4 - 19
For the Defense - Vol. 5, Issue 4 - 20
For the Defense - Vol. 5, Issue 4 - 21
For the Defense - Vol. 5, Issue 4 - 22
For the Defense - Vol. 5, Issue 4 - 23
For the Defense - Vol. 5, Issue 4 - 24
For the Defense - Vol. 5, Issue 4 - 25
For the Defense - Vol. 5, Issue 4 - 26
For the Defense - Vol. 5, Issue 4 - 27
For the Defense - Vol. 5, Issue 4 - 28
For the Defense - Vol. 5, Issue 4 - 29
For the Defense - Vol. 5, Issue 4 - 30
For the Defense - Vol. 5, Issue 4 - 31
For the Defense - Vol. 5, Issue 4 - 32
For the Defense - Vol. 5, Issue 4 - 33
For the Defense - Vol. 5, Issue 4 - 34
For the Defense - Vol. 5, Issue 4 - 35
For the Defense - Vol. 5, Issue 4 - 36
For the Defense - Vol. 5, Issue 4 - 37
For the Defense - Vol. 5, Issue 4 - 38
For the Defense - Vol. 5, Issue 4 - 39
For the Defense - Vol. 5, Issue 4 - 40
For the Defense - Vol. 5, Issue 4 - 41
For the Defense - Vol. 5, Issue 4 - 42
For the Defense - Vol. 5, Issue 4 - 43
For the Defense - Vol. 5, Issue 4 - 44
For the Defense - Vol. 5, Issue 4 - 45
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For the Defense - Vol. 5, Issue 4 - 50
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For the Defense - Vol. 5, Issue 4 - 52
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https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol7_issue2_2022
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol7_issue1_2022
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https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol6_issue3_2021
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol6_issue2_2021
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol6_issue1_2021
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https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol5_issue3_2020
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol5_issue2_2020
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol5_issue1_2020
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https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol4_issue3_2019
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol4_issue2_2019
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol4_issue1_2019
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol3_issue4_2018
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol3_issue3_2018
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol3_issue2_2018
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol3_issue1_2018
https://www.nxtbook.com/nxtbooks/pacdl/FORTHEDEFENSE_vol2_issue4_2017
https://www.nxtbook.com/nxtbooks/pacdl/FORTHEDEFENSE_vol2_issue3_2017
https://www.nxtbook.com/nxtbooks/pacdl/FORTHEDEFENSE_vol2_issue2_2017
https://www.nxtbook.com/nxtbooks/pacdl/FORTHEDEFENSE_vol2_issue1_2017
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol1_issue4_2016
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol1_issue3_2016
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol1_issue2_2016
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol1_issue1_2016
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