Tuesday, August 02, 2011
The Virginia State Bar's Standing Committee on Legal Ethics proposed that the Court adopt ABA MR 1.18 and the Court has adopted this rule effective June 21, 2011. Rule 1.18 addresses the ethical duties owed to a prospective client with whom a lawyer has communicated but has not agreed to represent that person. A prospective client is a person with whom the lawyer is willing to discuss the possibility of employment. The comments to the rule make clear that not all unilateral communications with a lawyer are protected, only those communications had with a reasonable expectation of forming a client-lawyer relationship. In that case, the communications are protected under the lawyer's duty of confidentiality under Rule 1.6, and the lawyer who has received significantly harmful information from a prosepective client may not represent a client adverse to that prospective client. However, the imputation of this conflict can be avoided if the tainted lawyer is screened from participating in any matter adverse to the prospective client and timely notice is given. It is believed that this new rule will help mitigate the practice by some people of "lawyer shopping" solely for the purpose of strategically disqualifying the lawyer or law firm because of an interview or other contact. At the very least the new rule should help law firms avoid an imputed disqualification when one of its lawyers has some communication with a prospective client.