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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.

Delaware Legal Ethics

1.18 Rule 1.18 Duties to Prospective Clients

1.18:100 Comparative Analysis of Delaware Rule

1.18:101 Model Rule Comparison

The text of the Delaware Rule and comments is the same as the Model Rule.

1.18:102 Model Code Comparison

EC 4-1 notes that an attorney must keep confidences and secrets of clients, as well as the confidences and secrets of those that “sought to employ him.”

1.18:200 Definition of “Prospective Client”

“The test for determining disqualification where a retainer contract establishing an attorney-client relationship has not been established is whether the prospective client consulted the attorney with a view to obtaining professional legal services from that lawyer and whether the conference reached a stage where communications were made to the lawyer which would be privileged.” Martin v. Materazzi, No. 80C-MY-59, 1981 Del. Super. LEXIS 801, at *2 (Del. Super. Ct. Aug. 31, 1981).

“In the absence of an express contract or formal retainer agreement, determining the existence of an attorney-client relationship is a fact-intensive inquiry that depends on the circumstances of each case. In determining the existence of an attorney-client relationship, courts look at the contacts between the potential client and its potential lawyers to determine whether it would have been reasonable for the ‘client’ to believe that the attorney was acting on its behalf as its counsel.” Benchmark Capital Partners IV, L.P. v. Vague, C.A. No. 19719-NC, 2002 Del. Ch. LEXIS 108, at *8-9 (Del. Ch. Sept. 3, 2002). Also, “[w]hile courts have recognized that a client's submission of confidential information to an attorney is an important factor in this inquiry, that factor alone is not controlling.” Id. at *12.

In Read v. Delaware Camera Club, Inc., the Court concluded that a casual contact was not an act of seeking representation. Read v. Delaware Camera Club, Inc., No. 80C-JN-157, 1981 Del. Super. LEXIS 807, at *3 (Del. Super. Ct. Sept. 16, 1981). In making this determination, the Court looked at “the causal nature of the meeting,” “the location where the conversation took place, namely, a public square,” “the fact that the plaintiff did not expressly or impliedly request [the attorney] to represent him,” “the fact that no appointment was made for plaintiff to come to [the attorney’s] office to confer about representation,” “the fact that the plaintiff made no offer to pay [the attorney] or to make financial or contingent arrangements to compensate him for his services,” and “the fact that the plaintiff has not shown any communication of a privileged nature was divulged by plaintiff to [the attorney] during [the] conversation.” Id. at *4.

1.18:300 Confidentiality of Communications with a Prospective Client

In Read v. Delaware Camera Club, Inc., where a prospective client wished to have privilege granted over certain communications, the court determined that the prospective client could not “rest upon mere generality as to the nature of the communication, but [the prospective client] must supply the Court with sufficient detail so that the Court can evaluate whether the communication was of a privileged nature.” Read v. Delaware Camera Club, Inc., No. 80C-JN-157, 1981 Del. Super. LEXIS 807, at *4 (Del. Super. Ct. Sept. 16, 1981).

“[I]f a potential client discusses a legal problem with an attorney and subsequently hires the attorney to represent him, the preliminary discussions would be privileged.” Tabas v. Bowden, C.A. 6619 (1981), 1982 Del. Ch. LEXIS 444, at *9 (Del. Ch. Feb. 16, 1982).

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

1.18:410 Conflict with an Existing Client

In order for an opposing party to disqualify their opponent’s lawyer due to a conflict arising from a conversation between the opposing party and the opponent’s chosen lawyer, the opposing party “must establish not only that he conferred with that attorney, but also that the contact was for the purpose of obtaining the legal services of that attorney and that matters of a confidential or privileged nature were disclosed to that attorney.” Martin v. Materazzi, No. 80C-MY-59, 1981 Del. Super. LEXIS 801, at *2 (Del. Super. Ct. Aug. 31, 1981). When the attorney denies that any such information was disclosed in the conference, “the prospective client cannot merely rest upon his own conclusion that confidential or privileged information had been disclosed, but must be prepared to testify as to specific matters which, according to his testimony, were disclosed.” Id. at *2-3.

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

DLRPC Rule 1.18(c) prohibits representation when there are existing conflicts of interest involving a mere prospective client unless the conditions of DLRPC Rule 1.18(d) are met. DLRPC Rule 1.18(d)(1) allows for the representation upon informed consent, confirmed in writing, from “both the affected client and the prospective client.” DLRPC Rule 1.18(d)(1).

There appear to be no pertinent Delaware specific court decisions or ethics opinions on this subject.

1.18:430 Screening to Cure an Imputed Conflict of Interest

Comment [8] “Notice, including a general description of the subject matter about which the lawyer consulted, and of the screening procedures employed, generally should be given as soon as possible after the need for screening becomes apparent.” DLRPC Rule 1.18 cmt. 8.

“[C]ertain objective circumstances, including the timing and physical characteristics of the screening, will in many cases require disqualification of an entire firm. The size of the firm remains an important consideration, as well as the nature of the prior involvement of the tainted attorney and the extensiveness of the screening.” Bowden v. Kmart Corp., C.A. No. 97C-10-020WLW, 1999 Del. Super. LEXIS 423, at *9 (Del. Super. Ct. July 1, 1999). In Bowden, the court determined the screening process was inadequate in a less than 15 person firm, where the attorney’s prior involvement with the previous client was “significant,” the attorney “did not recognize the issue of conflict after over a year of representation, and as such, she has had ample opportunity to discuss the case with other members of her firm,” along with the fact that the attorney had “failed to certify . . . that she has not discussed any confidential information pertaining to her representation in [the prior case] with her present client or any of the attorneys in her firm.” Id. at *10.