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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.

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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Ohio Legal Ethics Narrative

I. CLIENT-LAWYER RELATIONSHIP

1.18 RULE 1.18 DUTIES TO PROSPECTIVE CLIENT

1.18:100 Comparative Analysis of Ohio Rule

1.18:101 Model Rule Comparison

Ohio Rule 1.18 is substantively identical to the Model Rule.

1.18:102 Ohio Code Comparison

The following are listed in the Correlation Table (Appendix A to the Rules) as related to Ohio Rule 1.18: EC 4-1, Cuyahoga Cty Bar Ass'n v. Hardiman (2003), 100 Ohio St.3d 260.

1.18:200 Duties to Prospective Client

  • Primary Ohio References: Ohio Rule 1.18(a)-(d)
  • Background References: ABA Model Rule 1.18(a)-(d)
  • Commentary: ABA/BNA § 31:151; ALI-LGL § 15

Ohio Rule 1.18(a) defines a prospective client as "a person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter." As noted in Comment [2], however, 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 division (a)." Ohio Rule 1.18 cmt. [2].

During this preliminary discussion it may be necessary for the client to share confidential information with the lawyer in order for the lawyer to evaluate if conflicts exist and if not, whether to take the representation. Ohio Rule 1.18 cmt. [3]. Ohio Rule 1.18 seeks to balance the prospective client's interest in the confidential treatment of that information with the lawyer's interest in the freedom to represent others should the lawyer decline to represent the prospective client.

Ohio Rule 1.18(b) prohibits the lawyer from using or disclosing information learned in the consultation with a prospective client when no professional relationship ensues, except as permitted by Ohio Rule 1.9 concerning information of a former client. See Ohio Rule 1.9(c)(1) & (c)(2). See section 1.9:400. The prohibition of 1.18(b) is applicable to "information learned in the consultation" whether or not the information may be deemed a "confidence or secret," according to a Task Force statement made in the course of the rule-adoption process. This is consistent with the generally expansive view of confidentiality taken in the Ohio Rules. Nevertheless, it should be noted that the protection provided is less than that given current clients under Ohio Rule 1.6 and former clients under Ohio Rule 1.9. In both, protection is provided for information "relating to the representation" which can come from any source, at any time. With respect to prospective clients, however, protection extends only to "information learned in the consultation."

Ohio Rule 1.18(c) disqualifies the lawyer from representing a client "in the same or a substantially related matter" if the client's interests are "materially adverse to those of a prospective client" and if the information received from the prospective client could be "significantly harmful" to the prospective client in the matter, except as stated in division (d). Division (c) also prevents the lawyer in a firm with which the disqualified lawyer is associated from knowingly undertaking or continuing representation in the matter, except as provided in division (d). "Substantially related matter" is a defined term; it "involves the same transaction or legal dispute or one in which there is a substantial risk that confidential information that would normally have been obtained in the prior representation of a client would materially advance the position of another client in a subsequent matter." Ohio Rule 1.0(n). As noted in Rule 1.0 cmt. [11], the definition derives from Rule 1.9 cmt. [3] and applies for purposes of Rules 1.9, 1.10, and 1.18. As for when interests are "materially adverse," see discussion in section 1.9:220. Unique to the prospective client rule is the focus on whether the information obtained could be "significantly harmful" rather than simply "material to the matter," the operative phase used in Rules 1.9(b)(2) and 1.10(b)(2). For a discussion of how this phrase should be interpreted see Ronald D. Rotunda & John S. Dzienkowski, Professional Responsibility § 1.18-1(c), at 639 (2006) (suggesting that phrase should be read "very narrowly").

Ohio Rule 1.18(d) states that if the lawyer has received disqualifying information as defined in division (c), representation is still permissible if either (1) "both the affected client and the prospective client have given informed consent, confirmed in writing" or (2) if the lawyer took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to decide whether to represent the prospective client and (i) the lawyer is timely screened from any participation in the matter and apportioned no part of the fee therefrom and (ii) written notice is promptly provided to the prospective client. "Informed consent" and "screened" are defined in Ohio Rule 1.0(f) and (l), respectively. The terms are further discussed in Rule 1.0 cmts. [6] & [7] (informed consent) and cmts. [8]-[10] (screened). See also section 1.10:300. With respect to notice, it should be given "as soon as practicable after the need for screening becomes apparent." Ohio Rule 1.18 cmt. [8]. As stated in ABA, Annotated Model Rules of Professional Conduct 288 (5th ed. 2003) (commentary), a way to deal with potential problems of disqualification arising out of prospective client disclosure is to condition "consultation upon the prospective client’s informed consent that nothing disclosed during the consultation will prohibit the lawyer from representing a different client in the matter.” MR 1.18 cmt. [5] so provides, as well as noting that in such an agreement the prospective client can also expressly consent to the lawyer’s use of information disclosed in the consultation. Hazard and Hodes recommend that this technique be used in the “beauty contest” situation. See 1 Geoffrey C. Hazard, Jr. & W. Williams Hodes, The Law of Lawyering §  21A.4, at 21A-8 to 21A-9 (3d ed. Supp. 2005-1).

In Ohio, however, Model Rule comment [5] was deleted during the drafting process, "based on the Task Force's belief that a lawyer should not be able to condition conversations with prospective clients in such a way that would allow the attorney to represent another client in the same matter. Moreover, the Task Force is not convinced that such a condition would, in each instance, adequately protect the prospective client's right to confidentiality regarding the legal matter that would be discussed." Summary of Task Force Revisions December 2004.  We think this deletion unfortunate; sophisticated potential clients -- the primary users of "beauty contests" -- ought to be free to enter into such informed waivers with Ohio lawyers.

Comment [4] instructs that "a lawyer considering whether or not to undertake a new matter should limit the initial interview to only such information as reasonably appears necessary," in order to avoid acquiring disqualifying information from the prospective client. Ohio Rule 1.18 cmt. [4]. By so doing, the lawyer will help create a situation supporting screening should the individual lawyer be disqualified, since screening is available only if "the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary . . . ." Ohio Rule 1.18(d)(2).

Under the former OHCPR, there was no separate disciplinary rule treating a lawyer's duty to prospective clients. Pre-Rule precedent clearly indicated, however, that at least some of the duties arising from the attorney-client relationship were imposed, even if the representation is not undertaken. See section 1.2:210 of the treatise. Most of the law developed on this point dealt with confidentiality of client information and the attorney-client evidentiary privilege. Concerning client confidences and secrets, former OH EC 4-1 stated that the protection against disclosure extended to "one who has employed or sought to employ" an attorney. (Emphasis added.) See section 1.6:220 at "Duty to protect client information - Time period during which duty applies." For purposes of the privilege statute (ORC 2317.02(A)), ORC 2317.021 defines "client" as one who "consults an attorney for the purpose of retaining an attorney." Case law decided under this section holds that the statutory privilege applies to communications between a lawyer and a prospective client seeking representation. See section 1.6:410, at "Communications seeking representation." It would appear that the ORC 2317.02(A) precedent (as well as former OH EC 4-1) is generally consistent with the obligations set forth in Ohio Rule 1.18, although, as noted above, the preclusion contained in Rule 1.18(b) against use or revelation of information acquired in the consultation is not limited to information that was a confidence or secret under the Code. Finally, remember that other duties may attach with respect to prospective clients even if a full attorney-client relationship is never established. To the extent any advice is given, the duty of competence attaches, and to the extent any property is taken, the duty to safeguard it applies. Ohio Rule 1.18 cmts. [1] & [9].

Prospective client issues raised by unsolicited emails to lawyers from those seeking legal services and the guidance provided by MR 1.18 on those issues are explored in Kathryn A. Thompson, The Too Much Information Age, ABAJ, July 2007, at 28.