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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


District of Columbia Legal Ethics

1.18   Rule 1.18 Duties to Prospective Clients

1.18:100   Comparative Analysis of DC Rule

· Primary DC References: DC Rule 1.18
· Background References: ABA Model Rule 1.18, Other Jurisdictions
· Commentary:

1.18:101      Model Rule Comparison

When Rule 1.18 was added to the Model Rules, in 2002, the DC Rules did not have a similar separate Rule, but the problem of possible disqualification of a law firm on the basis of confidential information that had been imparted to a lawyer in the firm by a prospective client who did not become a client was partially addressed by DC Rule 1.10(a) as it then stood. That provision made an exception to the general imputation of an individual lawyer's disqualification to all other lawyers in that lawyer's firm, for circumstances where the lawyer's disqualification resulted solely from such an interview with a prospective client, and Comments [7] though [9] to the Rule elaborated on this provision. Both that portion of DC Rule 1.10(a) and its related Comments had been added effective November 1, 1996 pursuant to a recommendation of the Peters Committee.  DC Ethics Opinion 279 (1998), addressing the general subject of the availability of screening as a cure for imputed disqualification, noted that one of the situations in which screening might be usefully employed was the one addressed by DC Rule 1.10(a)'s exception to imputation.  The Opinion  recognized that where that exception applied, screening was not, strictly speaking, necessary, but observed that it might nonetheless be useful in assuring that the interviewing lawyer's disqualifying information was not imparted to other lawyers in the firm.

Although the DC Rules Review Committee recognized that, in light of the provision of  DC Rule 1.10(a) described in the preceding paragraph, a new and separate rule on the subject was not necessary, it nonetheless concluded that it would be useful to have a rule that addressed the problem more comprehensively, and accordingly the Committee proposed, and the Court accepted, a DC Rule 1.18 that largely copies Model Rule 1.18, except in a few relatively minor respects, described below. Since the new Rule 1.18 rendered the provision dealing with the same subject in DC Rule 1.10(a) unnecessary, that provison and the related Comments were also eliminated.  (See 1.10:101, above.) 

Paragraph (a) of DC Rule 1.18, effectively a prospective client for purposes of that Rule, is identical to its Model Rule counterpart. 
Paragraph (b), prohibiting a lawyer's revealing or using information learned in a conversation with a prospective client who did not become a client, uses identical wording with respect to this prohibition in the two versions of the Rule, but the Model Rule provides an exception for information that could have been revealed under Rule 1.9 if a lawyer-client relationship resulted from the initial interview, while the DC Rule makes exception when permitted by Rule 1.6.

Paragraph (c) in both versions of the Rule provides that a lawyer who has learned information from a prospective client may not thereafter represent a client with interests materially adverse to those of the prospective client in a substantially related matter, and imputes that prohibition to that lawyer's colleagues.  However, the Model Rule applies the prohibition only if the lawyer has received information from the prospective client that "could be significantly harmful" to that person, which the DC Rule Review Committee deemed to be insufficiently protective of the prospective client's interests and difficult to apply.  Therefore, paragraph (c) of the DC Rule more broadly, and practicably, ties the prohibition to the lawyer's having received a "confidence or secret" from the prospective client -- the two defined terms that that DC Rule 1.6 retains from its Code predecessor, DR 4-101.  (See 1.6:102, above.)

Subparagraph (d)(1) in both versions of Rule 1.18 provides that when the interviewing lawyer has received information that would be disqualifying under paragraph (c), a representation adverse to the interviewed but declined prospective client is still permissible if both the affected existing client and the interviewed but declined one consent. Subparagraph (d)(2) in both versions makes a similar exception -- applicable here only to the imputation of the disqualification -- where the interviewing lawyer is timely screened; and here, the Model Rule but not the DC Rule also requires prompt written notice to the prospective client, and that the interviewing lawyer have taken reasonable measure in that initial interview to avoid exposure to more information than reasonably necessary to determine whether to take on the representation.

The Comments following DC Rule 1.18 are generally parallel to those following the Model Rule, but in some respects are more elaborate -- among other things, explaining differences between the two versions of the Rule.

1.18:200   Definition of "Prospective Client"

· Primary DC References:
· Background References: ABA Model Rule 1.18, Other Jurisdictions
· Commentary:

DC has not adopted the new model rule.

1.18:300   Confidentiality of Communications with a Prospective Client

· Primary DC References:
· Background References: ABA Model Rule 1.18, Other Jurisdictions
· Commentary:

DC has not adopted the new model rule.

1.18:400   Conflicts of Interest Arising Out of Communications with a Prospective Client

· Primary DC References:
· Background References: ABA Model Rule 1.18, Other Jurisdictions
· Commentary:

DC has not adopted the new model rule.

1.18:410      Conflict with an Existing Client

DC has not adopted the new model rule.

1.18:420      Consent of Prospective Client to an Existing Conflict of Interest

DC has not adopted the new model rule.

1.18:430      Screening to Cure an Imputed Conflict of Interest

DC has not adopted the new model rule.