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An attorney who learned information from a prospective client that may be “significantly harmful” to that potential client would be prohibited from representing another person whose interests are “materially adverse” to the prospective client’s in a related matter, according to a new rule proposed by the Disciplinary Board of the Supreme Court of Pennsylvania. “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,” explains a comment published with the proposed addition to the Rules of Professional Conduct. No matter how brief the conference may be, proposed Rule 1.18 would impose a duty of confidentiality to the prospective client — “even when no client-lawyer relationship ensues.” The lawyer who consulted the prospective client wouldn’t be the only one affected by the rule change: The attorney’s firm would be disqualified from representing an adverse party if the attorney received information that could be “significantly harmful to that person” if used to represent the adverse party in a “substantially related matter.” The duties spelled out in proposed Rule 1.18 should not sound entirely unfamiliar to Pennsylvania lawyers, rule watchers said Monday. Rule 1.18, based on the American Bar Association’s model rule of the same name, essentially summarizes existing case law and the section of the American Law Institute’s Restatement of the Law Governing Lawyers (2000) pertaining to the duty of confidentiality owed to prospective clients. “This is an important rule to remind lawyers what they should already be doing,” said Lawrence J. Fox, former chair of the Pennsylvania Bar Association legal ethics committee. The Pennsylvania Rules of Professional Conduct are “essentially silent” on whether a lawyer has any professional duty to prospective clients, the Disciplinary Board noted its public notice publishing the rule. Thomas G. Wilkinson Jr., former head of the PBA committee that crafted Rule 1.18, said that no Pennsylvania ethics rule expressly states responsibilities to prospective clients. “This provides a great deal more helpful guidance,” said Wilkinson, an attorney at Cozen O’Connor. Parts of Rule 1.18 echo the conflict of interest provisions of the Rules of Professional Conduct governing the representation of clients whose interests are “materially adverse” to those of a former client. Exceptions to Rule 1.18′s prohibition on “subsequent adverse representation” include situations in which the affected and prospective clients have given “informed consent” to the arrangement. The rule also would permit another lawyer within the disqualified attorney’s firm to take on subsequent adverse representation (for example, another defendant in the same action) as long as the lawyer who was consulted by the prospective client is screened, or excluded, from participating in the representation. This screening is allowable so long as the “the disqualified lawyer took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client,” and the prospective client is promptly notified in writing about the situation, Rule 1.18 states. This screening arrangement would be new to Pennsylvania in this context, noted Fox, an attorney at Drinker Biddle & Reath. The rules already permit screening in certain circumstances to avoid imputation when a lawyer leaves one firm for another and discovers a conflict of interest between clients at the new and old firms. Although Fox frowns upon screening because “it requires the prospective client to take something on faith,” he said the provision doesn’t doom the rule. Overall, it’s still a good measure, he said. The Disciplinary Board said in its notice that screening should be permitted in the context of Rule 1.18 “because imputation of conflicts in this situation would place an undue burden on the interests of clients in retaining counsel of choice, especially when the other client is either a regular client of the firm or already is being represented by the law firm in the matter.” Wilkinson’s committee first presented Rule 1.18 to the PBA’s House of Delegates in November 2002. That policy-making body recommended the addition of language to address “lawyer-shopping,” Wilkinson said. In response, the committee added a sentence excluding from protection people who deliberately phone or meet with a lawyer only to preclude another client (presumably one with adverse interests) from hiring that lawyer. It’s not uncommon for this to happen in the area of family law or in small communities, Wilkinson said. Indeed, Fox said, “Some people are famous for finding out who the 10 best divorce lawyers are in town and meeting with all of them,” thus precluding them from representing their spouse. Rule 1.18 notes, “a person’s intent to disqualify a lawyer may be inferred from the circumstances.” The House of Delegates accepted the amendment to Rule 1.18 and approved it last November. The Disciplinary Board requests that comments on the rule be submitted by Friday. Louis Teti, chairman of the board, said the rule was originally part of the package of proposed changes prompted by the ABA’s Ethics 2000 Commission report. Rule 1.18 was delayed in coming to the board for approval because of the PBA’s amendment, Teti said. The other “Ethics 2000″ changes to the professional conduct rules, adopted by the Supreme Court in August, are scheduled to take effect in January.

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