Md. R. Att'y 19-301.18
Md. R. Att'y 19-301.18
COMMENT
[1] Prospective clients, like clients, may disclose information to an attorney, place documents or other property in the attorney's custody, or rely on the attorney's advice. An attorney's discussions with a prospective client usually are limited in time and depth and leave both the prospective client and the attorney 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 an attorney are entitled to protection under this Rule. For example, a person who communicates information unilaterally to an attorney, without any reasonable expectation that the attorney is willing to discuss the possibility of forming a client-attorney relationship, is not a "prospective client within the meaning of section (a) of this Rule.
[3] It is often necessary for a prospective client to reveal information to the attorney during an initial consultation prior to the decision about formation of a client-attorney relationship. The attorney 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 attorney is willing to undertake. Section (b) of this Rule prohibits the attorney from using or revealing that information, except as permitted by Rule 19-301.9 (1.9), even if the client or attorney 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, an attorney 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 attorney should so inform the prospective client or decline the representation. If the prospective client wishes to retain the attorney, and if consent is possible under Rule 19-301.7 (1.7), then consent from all affected present or former clients must be obtained before accepting the representation.
[5] An attorney may condition conversations with a prospective client on the person's informed consent that no information disclosed during the consultation will prohibit the attorney from representing a different client in the matter. See Rule 19-301.0(g) (1.0) for the definition of informed consent. If the agreement expressly so provides, the prospective client may also consent to the attorney's subsequent use of information received from the prospective client.
[6] Even in the absence of an agreement, under section (c) of this Rule, the attorney 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 attorney has received from the prospective client information that could be significantly harmful if used in the matter.
[7] Under section (c) of this Rule, the prohibition in this Rule is imputed to other attorneys as provided in Rule 19-301.10 (1.10), but, under section (d) of this Rule, imputation may be avoided if the attorney obtains the informed consent, confirmed in writing, of both the prospective and affected clients. In the alternative, imputation may be avoided if, under section (d) of this Rule, all disqualified attorneys are timely screened. See Rule 19-301.0(n) (1.0) (requirements for screening procedures). Section (d) of this Rule does not prohibit the screened attorney from receiving a salary or partnership share established by prior independent agreement, but that attorney may not receive compensation directly related to the matter in which the attorney is disqualified.
[8] For the duty of competence of an attorney who gives assistance on the merits of a matter to a prospective client, see Rule 19-301.1 (1.1). For an attorney's duties when a prospective client entrusts valuables or papers to the attorney's care, see Rule 19-301.15 (1.15).
Model Rules Comparison: This Rule, newly added to the Model Rules by the Ethics 2000 Amendments to the ABA Model Rules of Professional Conduct, is substantially similar to the ABA Rule, with the exception of omitting portions of ABA Model Rule 1.18(d) and Comment [7], and omitting ABA Comment [8] with appropriate redesignation of the Comment section thereafter.
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