MRPC Rule 1.18

(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 that information, 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 the 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.

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 consultations 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.

A person becomes a prospective 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

Michigan Rules of Professional Conduct 49 Updated with MSC order(s)

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. 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 “prospective client.” Moreover, a person who

communicates with a lawyer for the purpose of disqualifying the lawyer is not a “prospective

client.”

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. 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 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 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.

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. If the agreement expressly so provides, the

prospective client may also consent to the lawyer’s subsequent use of information received from

the prospective client.

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.

Under paragraph (c), the prohibition in this Rule is imputed to other lawyers as provided in Rule

1.10, but, under paragraph (d)(l), 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.

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.

Michigan Rules of Professional Conduct 50 Updated with MSC order(s)

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.