Close Close

Your Missouri Courts Header Image

Clerk Handbooks

Supreme Court Rules

Section/Rule:4- 1.18
Subject: Rule 4 - Rules Governing the Missouri Bar and the Judiciary - Rules of Professional Conduct Publication / Adopted Date:July 1, 2007
Topic:Client-Lawyer Relationship - Duties To Prospective ClientRevised / Effective Date:


RULE 4-1.18: DUTIES TO PROSPECTIVE CLIENT

(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 4-1.9 would permit with respect to information of a former client.

(c) A lawyer subject to Rule 4-1.18(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 Rule 4-1.18(d). If a lawyer is disqualified from representation under Rule 4-1.18(c), 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 Rule 4-1.18(d).

(d) When the lawyer has received disqualifying information as defined in Rule 4-1.18(c), representation is permissible if:
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 4-1.18. 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 Rule 4-1.18(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. Rule 4-1.18(b) prohibits the lawyer from using or revealing that information, except as permitted by Rule 4-1.9, 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 4-1.7, 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 4-1.0(e) for the definition of “informed consent.” 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.

[6] Even in the absence of an agreement, under Rule 4-1.18(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 Rule 4-1.18(c), the prohibition in this Rule 4-1.18 is imputed to other lawyers as provided in Rule 4-1.10, but, under Rule 4-1.18(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 Rule 4-1.18(d)(2) are met and all disqualified lawyers are timely screened. See Rule 4-1.0(k) (requirements for screening procedures).

[8] For the duty of competence of a lawyer who gives assistance on the merits of a matter to a prospective client, see Rule 4-1.1. For a lawyer's duties when a prospective client entrusts valuables or papers to the lawyer's care, see Rule 4-1.15.

(Adopted July 1, 2007, eff. July 1, 2007)