Prospective Versus Former Clients

Prospective Versus Former Clients

A prospective client and a former client receive the same confidentiality protection but different conflict protection, and an exam stem often turns on which of the two the facts describe.

Confidentiality is where the two match. Rule 1.18(b) provides that, even when no client-lawyer relationship ensues, a lawyer who has learned information from a prospective client shall not use or reveal it, except as Rule 1.9 would permit with respect to information of a former client.¹ The paragraph borrows the former-client standard whole, so declining the matter ends none of the duty.² Rule 1.9(c) shows what the borrowed standard demands: an ongoing duty, surviving termination of the relationship, not to use confidential information to the former client's disadvantage.³

The conflict bars diverge. When a representation has concluded, the lawyer may not represent a current client adversely to the former client in the same or a substantially related matter.⁴ Rule 1.18(c) echoes that same-or-substantially-related language for a prospective client, but it adds a condition: the lawyer may not represent a client with interests materially adverse to the prospective client's only if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter.⁵ The added condition is why the prospective-client test is described as similar to the former-client test but slightly diluted.⁶ Paragraph (c) also yields to paragraph (d), whose cures come up below.⁷

The two bars also differ in what they ask a court to find. Under the former-client rule, the party seeking disqualification need not identify the confidential information the lawyer received or show that any was divulged, because requiring that showing would undermine the very confidentiality the rule protects. When the earlier matter was litigation, the lawyer is conclusively presumed to have obtained confidential information about the issues in it.⁸ The matters count as substantially related when the information a client would typically share for the earlier representation would be relevant to the new one.⁹ Paragraph (c) is built differently. It bars the adverse engagement only if the lawyer received confidential information that could be significantly harmful to the prospective client. The constraints on the lawyer are more limited because the relationship was confined to the discrete purpose of considering a representation that ultimately was not undertaken, even though the duty of loyalty attaches to a prospective client as well.¹⁰ A person invoking the prospective-client bar must therefore point to something harmful that the lawyer actually received, and a lawyer who sees this risk has good reason to limit what a first consultation discloses.¹¹

The comparison reduces to three points:

• Both kinds of person receive confidentiality under one standard, because Rule 1.18(b) incorporates Rule 1.9, while the conflict bars are separate rules with separate wording.¹²
• The former-client bar asks whether the new matter is adverse and the same or substantially related, and the prospective-client bar asks that and also whether the lawyer received information that could be significantly harmful to the person in the matter.¹³
• The former-client rule presumes that confidential information of the kind normally obtained was shared and requires no proof, whereas paragraph (c) makes the lawyer's actual receipt of significantly harmful information a condition of the bar.¹⁴

The former-client side of the contrast has a familiar illustration. A lawyer who represented a businessperson and learned extensive private financial information about that person may not then represent the person's spouse in a divorce, even though the two matters carry different labels.¹⁵ The bar applies because the financial information a client normally shares in business work could materially advance the spouse's position, and the rule does not ask which particular facts the lawyer remembers.¹⁶ A consultation that never became a representation can come out differently on the same spousal facts, and what decides it is what the person actually said.

Suppose Haas and Moreau had been the lawyer's clients for years. Under the former-client rule, the bar on either divorce engagement would apply without any inquiry into what either person had said, because the rule presumes that the lawyer received the confidences that business representation normally produces.¹⁹ The relationship to the lawyer is the variable that moved, and the presumption moved with it. Haas ends up in the same place under either rule because he really did confide harmful facts. Moreau ends up in a different place, because a former client's protection against adverse representation does not depend on what was said and a prospective client's does.

Blurring the rules produces two opposite mistakes. A student who remembers that the prospective-client conflict bar is narrower sometimes carries that narrowness into confidentiality and concludes that a lawyer who clears the harm threshold may use what the person said, but the use-and-reveal duty in paragraph (b) contains no harm threshold.²⁰ A student who remembers that the former-client rule needs no proof of what was learned sometimes applies that presumption to a short consultation and treats every adverse engagement as barred. Paragraph (c) requires that the lawyer actually received information that could be significantly harmful, so a stem reporting only a brief meeting and no substantive disclosure points toward a lawyer who is free to take the adverse matter.²¹