Ind. Prof. Cond. Rule 1.18

Effective January 1, 2005

(a) A person who discusses with a lawyer 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 had discussions with a

prospective client shall not use or reveal information learned in the consultation, 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 same or a substantially related matter if the

lawyer received 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 received disqualifying information as defined in paragraph (c), representation is permissible if:

(1) both the affected client and the prospective client have given informed consent, confirmed in writing, or:

(2) the lawyer who received the information took reasonable measures to avoid exposure

to more disqualifying information than was reasonably necessary to determine whether

to represent the prospective client; and

(i) the disqualified lawyer is timely screened from any participation in the matter and is

apportioned no part of the fee therefrom; and

(ii) written notice is promptly given to the prospective client.

Comment

[1] Prospective 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

discussions with a prospective client usually are limited in time and depth and leave both

the prospective client and the lawyer free (and sometimes required) to proceed no further.

Hence, prospective clients should receive some but not all of the protection afforded clients.

[2] Not all persons who communicate information to a lawyer are entitled to protection

under this Rule. A person who 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, is not a “prospective client” within the meaning of paragraph

(a).

[3] It is often necessary for a prospective 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 that 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.

[4] In order to avoid acquiring disqualifying information from a prospective client, a lawyer

considering whether or not to undertake a new matter should limit the initial interview 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 prospective client or decline the representation. If

the prospective client wishes to retain the lawyer, and if consent is possible under Rule

1.7, then consent from all affected present or former clients must be obtained before

accepting the representation.

[5] A lawyer may condition conversations 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. See Rule 1.0(e) for the definition

of informed consent.

[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 prospective client

in the same or a substantially related matter unless the lawyer has received from the prospective 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 the informed consent, confirmed in writing, of both the prospective and

affected clients. In the alternative, imputation may be avoided if the conditions of paragraph (d)(2) are met and all disqualified lawyers are timely screened and written notice is

promptly given to the prospective client. See Rule 1.0(k) (requirements for screening procedures). Paragraph (d)(2)(i) does not prohibit the screened lawyer from receiving a

salary or partnership share established by prior independent agreement, but that lawyer

may not receive compensation directly related to the matter in which the lawyer is disqualified.

[8] Notice, including a general description of the subject matter about which the lawyer

was consulted, and of the screening procedures employed, generally should be given as

soon as practicable after the need for screening becomes apparent.

[9] For the duty of competence of a lawyer who gives assistance on the merits of a matter

to a prospective client, see Rule 1.1. For a lawyer's duties when a prospective client

entrusts valuables or papers to the lawyer's care, see Rule 1.15.

[10] Paragraph (d) also applies to other lawyers in the firm with whom the receiving lawyer

actually shared disqualifying information.

Counselor