Rule 4-1.18 — Duties to Prospective Client

Comment (verbatim from The Florida Bar)

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 consultations with a
prospective client usually are limited in time and depth and leave
both the prospective client and the lawyer free (and the lawyer
sometimes required) to proceed no further. Hence, prospective
clients should receive some but not all of the protection afforded
clients.
A person becomes a prospective client by consulting with a
lawyer about the possibility of forming a client-lawyer relationship
with respect to a matter. Whether communications, including
written, oral, or electronic communications, constitute a
consultation depends on the circumstances. For example, a
consultation is likely to have occurred if a lawyer, either in person
or through the lawyer’s advertising in any medium, specifically
requests or invites the submission of information about a potential
representation without clear and reasonably understandable
warnings and cautionary statements that limit the lawyer’s
obligations, and a person provides information in response. In

contrast, a consultation does not occur if a person provides
information to a lawyer in response to advertising that merely
describes the lawyer’s education, experience, areas of practice, and
contact information, or provides legal information of general
interest. 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
subdivision (a).
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 this 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. Subdivision (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.
In order to avoid acquiring disqualifying information from a
prospective client, a lawyer considering whether to undertake a new
matter should limit the initial consultation to only 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.
A lawyer may condition a consultation 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 terminology 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.

Even in the absence of an agreement, under subdivision (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 used to the
disadvantage of the prospective client in the matter.
Under subdivision (c), the prohibition in this rule is imputed to
other lawyers as provided in rule 4-1.10, but, under subdivision
(d)(1), the prohibition and its imputation may be avoided if the
lawyer obtains the informed consent, confirmed in writing, of both
the prospective and affected clients. In the alternative, the
prohibition and its imputation may be avoided if the conditions of
subdivision (d)(2) are met and all disqualified lawyers are timely
screened and written notice is promptly given to the prospective
client. See terminology (requirements for screening procedures).
Subdivision (d)(2)(i) does not prohibit the screened lawyer from
receiving a salary or partnership share established by prior
independent agreement, but that lawyer may not receive
compensation directly related to the matter in which the lawyer is
disqualified.
Notice, including a general description of the subject matter
about which the lawyer was consulted, and of the screening
procedures employed, generally should be given as soon as
practicable after the need for screening becomes apparent.
The duties under this rule presume that the prospective client
consults the lawyer in good faith. A person who consults a lawyer
simply with the intent of disqualifying the lawyer from the matter,
with no intent of possibly hiring the lawyer, has engaged in a sham
and should not be able to invoke this rule to create a
disqualification.
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 chapter 5, Rules Regulating The
Florida Bar.

Added March 23, 2006, effective May 22, 2006 (933 So.2d 417); amended
November 19, 2009, effective February 1, 2010 (24 So.3d 63); amended
May 21, 2015, corrected June 25, 2015, effective October 1, 2015 (164
So.3d 1217).