What duties does a California lawyer owe to a prospective client who shared confidential information during an interview that did not result in representation?
State Bar of California COPRAC Formal Opinion 2021-205: Duties to Prospective Clients
Short answer: The opinion concludes that when a person is a "prospective client" under Rule 1.18(a), the interviewing lawyer owes the same duty of confidentiality owed to a current or former client and is prohibited from accepting representation materially adverse to the prospective client in the same or a substantially related matter; that prohibition is imputed to the rest of the law firm unless one of two narrow exceptions applies (informed written consent of both clients, or the Rule 1.18(d)(2) screen with reasonable measures).
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the State Bar of California's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.
About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. The opinion text is reproduced at the bottom; the official source (linked) controls.
Plain-English summary
The opinion addresses three questions arising under California Rule 1.18: (1) what the interviewing lawyer may do with confidential information received from a prospective client when no representation results; (2) when ethical screening under Rule 1.18(d)(2) permits the law firm to take a materially adverse representation against the former prospective client; and (3) the validity of advance informed written consent permitting later adverse representation when the interviewing lawyer did not take Rule 1.18(d)(2)'s "reasonable measures." The committee works through four hypothetical scenarios in which "PC" consults "Lawyer" at "Law Firm" about a trade-secret misappropriation claim against "Competitor" and Law Firm declines the representation.
Per the opinion, Rule 1.18(b) requires the lawyer to treat information received from a prospective client as confidential under Business and Professions Code section 6068(e) and Rule 1.6. Per the opinion, this duty controls even when the interviewing lawyer has a competing duty under Rule 1.4 to communicate significant developments to an existing client (e.g., where the prospective suit could affect the existing client's planned public offering). The committee anchors that conclusion in Flatt v. Superior Court (1994) 9 Cal.4th 275, California State Bar Formal Op. 2003-163, and LACBA Op. 528 (2017), and observes that California has not adopted a confidentiality exception of the kind New Jersey applied in A v. B (1999) 158 N.J. 51.
Per the opinion, Rule 1.18(c) bars the lawyer from accepting representation materially adverse to the prospective client in the same or a substantially related matter, and that bar is imputed to the law firm. Two exits exist. The first, under Rule 1.18(d)(1), is informed written consent of both the prospective client and the affected client. The second, under Rule 1.18(d)(2), requires that the lawyer have taken "reasonable measures to avoid exposure to more information than was reasonably necessary to determine whether to represent the prospective client," that the prohibited lawyer be timely screened and apportioned no fee, and that prompt written notice be given to the prospective client. Per the opinion, "reasonable measures" includes affirmative actions to limit disclosure (such as advising the prospective client to disclose only identified information) and is not satisfied by passive intake.
Per the opinion, the "reasonably necessary" standard is objective and context-dependent. It encompasses what a reasonable lawyer would regard as necessary to make a decision whether to represent the client, and may extend beyond conflict-check information to information about the merits, the client's reputation, the client's ability to pay fees, or (in contingent-fee matters) the likely recovery. The committee draws this conclusion from the Restatement (Third) of the Law Governing Lawyers, section 15, and from the district court's analysis in SkyBell Technologies, Inc. v. Ring, Inc. (C.D. Cal. 2018) 2018 WL 6016156, which disqualified a firm that took reasonable steps at the conflict-check stage but failed to renew those steps as the conversation progressed.
On advance consent, the committee notes that Rule 1.18(d) does not address whether a prospective client alone may give advance consent, but observes that Comment [9] to Rule 1.7 and California State Bar Formal Op. 1989-115 indicate advance consent to a future conflict is not per se invalid. The validity turns on whether the prospective client understood the material risks; sophistication and independent representation count. The committee notes that California federal courts have declined to enforce broadly framed open-ended advance waivers, citing Western Sugar Coop. v. Archer-Daniels-Midland Co. and Concat LP v. Unilever, PLC, and that Sheppard, Mullin, Richter & Hampton, LLP v. J-M Manufacturing Co. (2018) 6 Cal.5th 59 did not reach the validity of more broadly framed advance consents.
Applying the framework to the four scenarios: in Scenario 1 (open-ended interview, no admonitions), neither the lawyer nor the firm may represent Competitor because no reasonable measures were taken. In Scenario 2a (admonitions limited to conflict-check information), the lawyer may not disclose to Competitor the fact of the prospective suit, but once PC sues Competitor, that fact ceases to be material and the lawyer may represent Competitor; the firm could in any event screen under Rule 1.18(d)(2). In Scenario 2b (PC volunteers confidential information despite admonitions), the lawyer is personally prohibited, but the firm may rely on Rule 1.18(d)(2) screening because the lawyer took reasonable measures. In Scenario 3 (staged admonitions for each level of inquiry, including financial fitness and merits), the firm may screen under Rule 1.18(d)(2). In Scenario 4 (PC's beauty-contest disclosure of strategic information far beyond what the firm needed, accompanied by PC's advance informed written consent), Rule 1.18(d)(2) screening is doubtful but the advance consent (limited to representation of an identified opponent in the same matter) is enforceable.
In practice
Under this opinion, conduct that consists of conducting a prospective-client interview in California is consistent with Rule 1.18 as it stood at the time of the opinion when the lawyer (i) treats all information received as confidential under Rule 1.18(b) regardless of any duty to inform an existing client; (ii) takes affirmative measures at the outset and at each successive stage of the conversation to advise the prospective client to disclose only information reasonably necessary to the lawyer's decision; (iii) if the firm later wishes to represent a materially adverse client in the same or a substantially related matter, either obtains informed written consent from both clients under Rule 1.18(d)(1) or implements a timely, no-fee Rule 1.18(d)(2) screen with prompt written notice to the prospective client; and (iv) if advance written consent from a prospective client is used, narrows that consent to identified opponents in the same matter and confirms that the prospective client is sophisticated and informed of the material risks.
The committee declines to opine on the enforceability of advance waivers framed more broadly than those approved in Scenario 4 and notes that case law on broadly framed advance waivers is unsettled.
Common questions
Q: What makes someone a "prospective client" under Rule 1.18?
A: Per the opinion, the person must have (1) a good-faith intention to seek legal advice or representation and (2) a reasonable expectation, based on the lawyer's conduct, that the lawyer is willing to discuss the possibility of forming a lawyer-client relationship or providing legal advice. The committee cites Rule 1.18, Comment [2], and Cal. State Bar Formal Op. 2003-161. Unilateral disclosures, or disclosures after the lawyer has stated unwillingness to consult, do not create a prospective-client relationship.
Q: Does the lawyer's duty of confidentiality to a prospective client beat the duty to inform a current client of significant developments?
A: Yes. Per the opinion, where the lawyer learns confidential information from a prospective client that would be significant to an existing client (such as a planned suit that could disrupt a current client's public offering), the duty of confidentiality to the prospective client outweighs the duty of communication and loyalty to the current client. The committee anchors this in Flatt v. Superior Court (1994) 9 Cal.4th 275, Cal. State Bar Formal Op. 2003-163, and LACBA Op. 528 (2017).
Q: What does "reasonable measures to avoid exposure to more information than was reasonably necessary" mean?
A: Per the opinion, the standard is objective and requires affirmative action. The lawyer must advise the prospective client to disclose only information identified by the lawyer as needed and must renew that admonition as the conversation moves to new stages (conflict-check, fee fitness, merits, recovery). The committee anchors this in SkyBell Technologies, Inc. v. Ring, Inc. (C.D. Cal. 2018), which disqualified a firm that took reasonable steps at the conflict-check stage but failed to do so again before learning strategic information. Passive intake is not enough; the lawyer's burden is to show the affirmative measures.
Q: Can ethical screening alone cure imputation under Rule 1.18(d)(2)?
A: Per the opinion, only if the interviewing lawyer first took the required reasonable measures. The committee holds that Rule 1.18(d)(2) requires reasonable measures plus a timely screen plus no fee apportionment plus prompt written notice. Without reasonable measures, screening is not available.
Q: Can a prospective client give advance written consent to letting the firm later be adverse?
A: Per the opinion, yes, but narrowly. The committee approves the advance consent in Scenario 4 because it was limited to an identified opponent (Competitor) in the same matter and was given by a sophisticated, independently represented prospective client (with in-house counsel) in exchange for the firm's free evaluation of the case. The opinion declines to address broader open-ended advance waivers and notes that California federal courts have invalidated such consents in Concat LP v. Unilever, PLC and Western Sugar Coop. v. Archer-Daniels-Midland Co.
Q: If the lawyer does take reasonable measures but the prospective client volunteers material confidential information anyway, can the firm still screen?
A: Per the opinion, yes. In Scenario 2b, PC volunteered material confidential information despite the lawyer's admonitions, and none of the lawyer's questions would have elicited that information. The lawyer is personally disqualified under Rule 1.18(c), but because the lawyer took reasonable measures, the firm may rely on Rule 1.18(d)(2) screening to represent Competitor.
Background and rules framework
The opinion interprets California Rules 1.4, 1.6, 1.7, 1.8.2, 1.9, 1.10, 1.16, and 1.18, plus Business and Professions Code section 6068(e)(1) and Rule 1.0.1(e) (definition of informed consent). The committee notes that California's Rule 1.18(c) uses a "material" standard for personal disqualification while ABA Model Rule 1.18(c) uses a "could be significantly harmful" standard, but does not resolve that difference. The committee draws on Restatement (Third) of the Law Governing Lawyers section 15 and Comment c, and on Kirk v. First American Title Ins. Co. (2010) 183 Cal.App.4th 776, for the elements of an effective ethical screen.
Citations and references
Rules of Professional Conduct:
- California Rules 1.0.1(e) and (k), 1.4, 1.6, 1.7, 1.8.2, 1.9, 1.10, 1.16, 1.18
Statutes:
- California Business and Professions Code section 6068(e)(1)
- California Business and Professions Code section 6068(m)
Cases:
- Flatt v. Superior Court, 9 Cal.4th 275 [36 Cal.Rptr.2d 537] (Cal. 1994), duty of loyalty in declining a prospective representation
- Kirk v. First American Title Ins. Co., 183 Cal.App.4th 776 [108 Cal.Rptr.3d 620] (Cal. Ct. App. 2010), elements of an effective ethical screen
- Sheppard, Mullin, Richter & Hampton, LLP v. J-M Manufacturing Co., 6 Cal.5th 59 [237 Cal.Rptr.3d 424] (Cal. 2018), advance-conflict consent
- People v. Gionis, 9 Cal.4th 1196 [40 Cal.Rptr.2d 456] (Cal. 1995), confidentiality after stated unwillingness
- Zador Corp. v. Kwan, 31 Cal.App.4th 1285 [37 Cal.Rptr.2d 754] (Cal. Ct. App. 1995), advance consent in joint representation
- Elliott v. McFarland Unified School Dist., 165 Cal.App.3d 562 [211 Cal.Rptr. 802] (Cal. Ct. App. 1985), advance consent in joint representation
- In re Marriage of Zimmerman, 16 Cal.App.4th 556, 565 [163 Cal.Rptr.3d 135] (Cal. Ct. App. 1993), publicly known information not confidential
- In re Jordan, 12 Cal.3d 575, 580 [116 Cal.Rptr. 371] (Cal. 1974), confidentiality and duty of loyalty
- Visa U.S.A. Inc. v. First Data Corp., 241 F.Supp.2d 1100 (N.D. Cal. 2003), advance consent to concurrent unrelated adverse representation
- Simpson Strong-Tie Co., Inc. v. Ox-Post International, LLC, 2018 WL 3956430 (N.D. Cal. 2018)
- Skybell Technologies, Inc. v. Ring, Inc., 2018 WL 6016156 (C.D. Cal. 2018), disqualification despite ethical screen where reasonable measures lapsed
- United States ex rel. Bergelectric Corp. v. Sauer, Inc., 2018 WL 6619981 (N.D. Cal. 2018), broad advance waiver unenforceable
- Lennar Mare Island, LLC v. Steadfast Ins. Co., 105 F.Supp.3d 1100 (E.D. Cal. 2015), broad advance waiver "broad, general and indefinite"
- Western Sugar Coop. v. Archer-Daniels-Midland Co., 98 F.Supp.3d 1074 (C.D. Cal. 2015), open-ended advance waiver unenforceable
- Concat LP v. Unilever, PLC, 350 F.Supp.2d 796 (N.D. Cal. 2004), open-ended advance waiver as "boilerplate"
- Galderma Laboratories, L.P. v. Actavis Mid Atlantic LLC, 927 F.Supp.2d 390 (N.D. Tex. 2013), enforcing general advance waiver under different state law
- A v. B, 158 N.J. 51 [726 A.2d 924] (N.J. 1999), New Jersey fraud-prevention exception (not adopted in California)
Other opinions cited:
- Restatement (Third) of the Law Governing Lawyers, sections 15, 59, 62, 70, 122
- Cal. State Bar Formal Op. 1989-115: advance waiver of conflicts and confidentiality
- Cal. State Bar Formal Op. 2003-161: scope of prospective-client confidentiality
- Cal. State Bar Formal Op. 2003-163: duty of confidentiality to corporate constituent
- LACBA Formal Op. 528 (2017): insurer-defense counsel's duty to insured
See also
- CA COPRAC Op. 2020-204: Third-Party Litigation Funding
- CA COPRAC Op. 2021-206: Colleague Impairment
- NYSBA Op. 1293: Conflict Analysis for Per Diem Attorney
- NYC Bar Op. 2025-5: Personal-Belief Conflicts
Source
- Landing page: https://www.calbar.ca.gov/legal-professionals/ethics-compliance-practice-resources/ethics/ethics-opinions
- Original PDF: https://www.calbar.ca.gov/sites/default/files/portals/0/documents/ethics/Opinions/Formal-Opinion-No-2021-205-Duties-to-Prospective-Client.pdf
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
THE STATE BAR OF CALIFORNIA
STANDING COMMITTEE ON
PROFESSIONAL RESPONSIBILITY AND CONDUCT
FORMAL OPINION NO. 2021-205
ISSUES: 1. When a prospective client has provided confidential information to an
interviewing lawyer, may the interviewing lawyer disclose that
information or use it to the prospective client’s disadvantage?
2. When the interviewing lawyer has received material confidential
information from a prospective client, under what conditions is ethical
screening available so that other lawyers in the lawyer’s law firm may
represent other clients who are adverse to the prospective client in the
same or substantially related matters?
3. To what extent can a prospective client give advanced informed written
consent to permit other lawyers in an interviewing lawyer’s law firm to
be adverse to a former prospective client in the same or substantially
related matter in circumstances where the interviewing lawyer is
screened from the representation but the precondition for screening in
rule 1.18(d) has not been met because the interviewing lawyer did not
take the “reasonable measures” required by that rule?
DIGEST: When a person is a prospective client within the meaning of rule 1.18(a), the
interviewing lawyer owes the prospective client the same duty of confidentiality
owed to an existing or former client pursuant to rules 1.6 and 1.9 even though
no lawyer-client relationship thereafter ensues. The lawyer may not use or
disclose such information without the prospective client’s informed written
consent. This is true even if the information would be material to the
representation of an existing client of the lawyer or the lawyer’s law firm. The
duty of confidentiality to the prospective client outweighs the duty to inform the
current client.
An interviewing lawyer who receives material confidential information from a
prospective client is prohibited from accepting representation materially adverse
to the prospective client in the same or a substantially related matter absent
informed written consent. That prohibition is imputed to other members of the
law firm unless the interviewing lawyer took reasonable measures to obtain only
information that is reasonably necessary to determine whether to represent the
existing client and the law firm promptly undertook the screening and other
measures specified in rule 1.18(d)(2). Reasonable measures include advising the
client to provide only identified information that the lawyer reasonably needs to
decide whether to undertake the representation and limiting questioning of the
client so as to elicit only such information. The information reasonably necessary
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to determine whether to represent a prospective client is that which a
reasonable lawyer in the situation of the interviewing attorney would require to
determine whether the proposed representation was both ethically proper and
economically acceptable. It includes information beyond what is required to
determine whether the representation is ethically permissible to determine a
conflict of interest, may include information as to whether the client’s position is
tenable, and, in appropriate circumstances, may include information relating to
the client’s reputation or financial condition, the merits of the claim, and the
likely range of recoveries.
The prohibition against accepting a representation that is materially adverse to a
prospective client resulting from the receipt of that prospective client’s material
confidential information can be waived with the informed written consent of
both the prospective client and any affected client of the law firm. A prospective
client may give advance informed written consent to the law firm acting
adversely to the prospective client in the same matter or substantially related
matters.
AUTHORITIES
INTERPRETED: Rules 1.01(e), 1.4, 1.6, 1.7, 1.8.2, 1.9, 1.10, 1.16 and 1.18 of the Rules of
Professional Conduct of the State Bar of California.1
Business and Professions Code section 6068(e)(1).
STATEMENT OF FACTS
Facts Common to Each Scenario
A person or entity (“PC”) consults with a lawyer (“Lawyer”) about retaining Lawyer and
Lawyer’s firm (“Law Firm”) to prosecute a misappropriation of trade secret claim against its
competitor (“Competitor”). Lawyer conducts an interview to determine whether Lawyer can
and should represent PC. Law Firm does not take PC’s case.
Scenario 1
At the outset of the interview, Lawyer advises PC that Lawyer has not agreed to represent PC
and that the decision will be made after the interview and subject to Law Firm’s approval.
Lawyer does not provide PC with any guidance about what PC should disclose to Lawyer or
caution PC against the disclosure of any material confidential information. Instead, Lawyer
begins asking PC open ended questions about PC’s business and PC’s potential claims against
Competitor. During the interview, PC provides confidential information about the merits of the
1
Unless otherwise indicated, all references to “rules” in this opinion will be to the Rules of
Professional Conduct of the State Bar of California.
2
case and about PC’s ability to finance the case. The disclosure of such information or use of it
for the benefit of an opponent, including Competitor, would materially damage PC’s case.
Shortly after the interview, Lawyer advises PC that Law Firm will not take PC’s case.
Subsequently, Competitor seeks to retain Law Firm to defend Competitor in the matter brought
by PC. Law Firm is prepared to set up an ethical screen isolating Lawyer who met with PC.2
Scenario 2a
At the outset of the interview, Lawyer advises PC that Lawyer has not agreed to represent PC
and that the interview is designed to only determine whether Law Firm would have a conflict of
interest in representing PC. Lawyer advises PC that PC should limit the disclosure of basic facts
to the information that Lawyer needs to determine whether Lawyer or Law Firm has a conflict
of interest that would prevent representation, such as the identity of the parties and the nature
of the claim. Lawyer also cautions PC not to disclose to Lawyer any other confidential
information or any information that is not reasonably necessary to assist Lawyer in determining
if there is a conflict of interest because PC and Lawyer have not yet formed an attorney-client
relationship. PC provides the name of the defendant and the subject matter of the lawsuit, but
nothing more. The conflict search reveals the prospective defendant Competitor is an existing
client of Law Firm, which is currently advising Competitor in connection with an upcoming
public offering. Law Firm declines PC’s representation because of the conflict of interest.
Lawyer believes that the use or disclosure of the fact that PC may bring suit against Competitor
could materially harm PC by alerting Competitor to the threatened litigation. On the other
2
Rule 1.0.1(k) provides that “‘screened’ means the isolation of a lawyer from any participation in a
matter, including the timely imposition of procedures within a law firm that are adequate under the
circumstances (i) to protect information that the isolated lawyer is obligated to protect under the rules
or other law; and (ii) to protect against other law firm lawyers and non-lawyer personnel communicating
with the lawyer with respect to the matter.” Additionally, rule 1.18(d)(2) requires that the prohibited
lawyer be “apportioned no part of the fee therefrom” and “written notice is promptly given to the
prospective client to enable the prospective client to ascertain compliance with the provisions.”
The elements of an effective ethical screen will vary from case to case, but the two most critical
elements are: (1) the screen must be timely in place; and (2) imposition of actual preventive measures
to guarantee that the information will not be conveyed. (Kirk v. First American Title Ins. Co. (2010) 183
Cal.App.4th 776, 810 [108 Cal.Rptr.3d 620], citing Speedee Oil, supra, 20 Cal.4th at pp. 1142, 1151-1152
and fn. 5.) Some of the recognized elements of an effective ethical screen include:
1. Physical, geographic, and departmental separation of attorneys;
2. Prohibitions against and sanctions for discussing confidential matters;
3. Established rules and procedures preventing access to confidential information and files;
4. Procedures preventing a disqualified attorney from sharing in the profits from the
representation; and
5. Continuing education in professional responsibility.
(Kirk v. First American Title Ins. Co., supra, 183 Cal.App.4th at pp. 810-811.)
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hand, Lawyer understands that the prospective suit is material to Competitor since it would
disrupt Competitor’s current plans for a public offering.
Scenario 2b
Same facts as Scenario 2a, except that during the preliminary discussion to determine whether
there would be a conflict of interest in Law Firm’s representation of PC, and despite Lawyer’s
admonitions, PC volunteers confidential material information relating to PC’s claim which if
disclosed to, or used for the benefit of, Competitor would be damaging to PC’s case against
Competitor. None of Lawyer’s questions would naturally have elicited such information.
Scenario 3
PC clears Law Firm’s conflict inquiry. Lawyer and PC would like to continue discussions about
whether Law Firm can and should take on PC’s case. PC would like Lawyer to proceed on an
hourly fee basis. Lawyer therefore asks for financial information demonstrating PC’s ability to
pay hourly fees for the type of matter involved. Lawyer cautions PC not to disclose to Lawyer
any other confidential information or any information that is not reasonably necessary to assist
Lawyer in determining whether PC is able to pay Law Firm’s hourly fees because PC and Lawyer
have not yet formed an attorney-client relationship. PC provides financial information to
Lawyer which shows PC’s inability to finance the litigation on an hourly basis. PC then asks
Lawyer if Law Firm would handle the case on a contingency basis. In response, Lawyer asks for
more factual information concerning the merits of the case and the likely damage award,
indicating that it is necessary to assess the potential value of the claim, the extent of work
involved and any resulting fee. Lawyer again cautions PC to limit PC’s disclosure of information
to Lawyer to only the information being requested, and not to disclose any other confidential
information or information that is not reasonably necessary to that assessment. After receiving
and reviewing PC’s information, Lawyer decides against recommending that Law Firm take the
case, but Lawyer does not share any of PC’s information, the related analysis that Lawyer
conducted or any conclusions that Lawyer reached with any other person at the Law Firm.
Lawyer informs PC that Law Firm will not take the case, explaining Lawyer’s reasons and that
Lawyer did not share any of PC’s information with any other person at the Law Firm. After PC
files a lawsuit against Competitor, Competitor seeks to hire Lawyer to represent Competitor
against PC. Lawyer believes that the information Lawyer received about PC’s financial situation
and the merits of the case is material to the case between Competitor and PC. Law Firm is
prepared to initiate a timely and effective screen of Lawyer and to comply with the
requirements of rule 1.18(d)(2).
Scenario 4
PC has cleared conflicts. Law Firm is prepared to take the case on an hourly basis. However, PC
is interviewing several law firms and wants to evaluate Lawyer and Law Firm by giving Lawyer
material, confidential information about the case, so that Lawyer can prepare a memorandum
analyzing the case, including its strengths and weaknesses, and setting forth a proposed
strategy and budget. Lawyer and Law Firm agree to accept the information and to perform the
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evaluation, at no charge, if PC will agree that, if Law Firm is not retained, Law Firm will be free
to act adversely to PC in the same or a substantially related matter on behalf of Competitor,
under the following conditions: (1) Lawyer who conducted the interview and any other lawyers
or support personnel within Law Firm who receive confidential information would be screened
from the case; and (2) PC agrees that should Competitor subsequently retain Law Firm,
Competitor can be informed of, and will be required to consent to, the screening arrangement
and the reasons for it. PC, acting through its assistant general counsel, gives written consent to
the arrangement. Lawyer submits a presentation to PC, but PC does not hire Law Firm. After PC
brings suit, the defendant, Competitor, seeks to hire Law Firm to represent it against PC.
Competitor has consented to the representation after being informed of the consultation and
the screening arrangements.
DISCUSSION
The analysis of these four scenarios is governed primarily by rule 1.18, which provides:
Rule 1.18 Duties to Prospective Client
(a) A person* who, directly or through an authorized representative, consults a lawyer
for the purpose of retaining the lawyer or securing legal service or advice from the lawyer
in the lawyer’s professional capacity, is a prospective client.
(b) Even when no lawyer-client relationship ensues, a lawyer who has communicated
with a prospective client shall not use or reveal information protected by Business and
Professions Code section 6068, subdivision (e) and rule 1.6 that the lawyer learned as a
result of the consultation, except as rule 1.9 would permit with respect to information of
a former client.
(c) A lawyer subject to paragraph (b) shall not represent a client with interests materially
adverse to those of a prospective client in the same or a substantially related matter if
the lawyer received from the prospective client information protected by Business and
Professions Code section 6068, subdivision (e) and rule 1.6 that is material to the matter,
except as provided in paragraph (d). If a lawyer is prohibited from representation under
this paragraph, no lawyer in a firm* with which that lawyer is associated may knowingly*
undertake or continue representation in such a matter, except as provided in paragraph
(d).
(d) When the lawyer has received information that prohibits representation as provided
in paragraph (c), representation of the affected client is permissible if:
(1) both the affected client and the prospective client have given informed written
consent,* or
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(2) the lawyer who received the information took reasonable measures to avoid
exposure to more information than was reasonably necessary to determine
whether to represent the prospective client; and
(i) the prohibited lawyer is timely screened* from any participation in the
matter and is apportioned no part of the fee therefrom; and
(ii) written* notice is promptly given to the prospective client to enable
the prospective client to ascertain compliance with the provisions of this
rule.
Under the express language of rule 1.18, a duty of confidentiality arises even when no lawyer-
client relationship ensues when (1) a person consults a lawyer for the purpose of retaining the
lawyer or securing legal advice from the lawyer in the lawyer’s professional capacity, and (2) as
a result of the consultation, the lawyer receives information that is protected by Business and
Professions Code section 6068(e) and rule 1.6—that is, information that is confidential. (Rule
1.18(b).) To qualify as a prospective client, the person consulting the lawyer must have (1) a
good faith intention to seek legal advice or representation, and (2) a reasonable expectation,
based on the lawyer’s conduct, that the lawyer is willing to discuss the possibility of forming a
lawyer-client relationship or providing legal advice. (Rule 1.18, Comment [2]; 3 California State
Bar Formal Opinion No. 2003-161, at p. 6.4)
The lawyer’s duty to a prospective client forbids use or disclosure of the confidential
information disclosed except as would be permitted under rule 1.9 (relating to former clients),
and, if the information is material to the matter, bars the lawyer and the lawyer’s law firm from
acting adversely to the person in the same or a substantially related matter (rule 1.18(c), except
3
This paragraph departs from ABA Model Rule 1.18 by “clearly articulating the scope of qualifying
consultations so that a prospective client may not simply disclose information in an attempt to disqualify
the consulting lawyer from representing an opponent.” (Commission for the Revision of the Rules of
Professional Conduct (“Commission”) Rule 1.18, Executive Summary, p. 2.)
4
Rule 1.18, Comment [2] provides: “A person who by any means communicates information
unilaterally to a lawyer, without reasonable expectation that the lawyer is willing to discuss the
possibility of forming a lawyer-client relationship or provide legal advice is not a “prospective client”
within the meaning of paragraph (a). In addition, a person who discloses information to a lawyer after
the lawyer has stated his or her unwillingness or inability to consult with the person (People v. Gionis
(1995) 9 Cal.4th 1196 [40 Cal.Rptr.2d 456]), or who communicates information to a lawyer without a
good faith intention to seek legal advice or representation, is not a prospective client within the
meaning of paragraph (a).”
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as may be permitted under rule 1.18(d). Rule 1.18(c)5-(d).6 However, both the individual and
firm wide prohibitions on representation in rule 1.18(c) will not apply if both the affected client
and the prospective client have given their informed written consent to the representation
(rule 1.18(d)(1)). Alternatively, if the lawyer has taken reasonable measures to avoid exposure
to more information than was reasonably necessary to determine whether to represent the
prospective client and establishes a timely and effective ethical screen of the interviewing
lawyer (rule 1.18(d)(2)), the firm wide prohibition of rule 1.18(c) will not be triggered.
Rule 1.18(d)(1) requires informed consent from both the prospective client and the affected
client. Rule 1.18(d) does not address whether such consent can be given by the prospective
client alone in advance of the conflict having arisen. On the other hand, other provisions of the
rules indicate that in appropriate circumstances such consents may be enforceable. Comment
[9] to rule 1.7 expressly states that rule 1.7 “does not preclude an informed written consent to
a future conflict in compliance with applicable case law.” California State Bar Formal Opinion
No. 1989-115 is, to the same effect, stating that “an advance waiver of both conflict of interest
and confidentiality protections is not, per se, invalid. (Id. at 3.) The Restatement of the Law
Governing Lawyers, § 15, Comment c [A Lawyer’s Duties to a Prospective Client] also recognizes
advance consents in the context of an interview with a prospective client:
The lawyer may also condition conversations with the prospective client on the person’s
consent to the lawyer’s representation of other clients (see § 122, Comment d) or on the
prospective client’s agreement that any information disclosed during the consultation is
not to be treated as confidential (see § 62). The prospective client’s informed consent to
such an agreement frees the lawyer to represent a client in a matter and to use in that
matter, but only if the agreement so provides, confidential information received from the
prospective client. A prospective client may also consent to a representation in other
ways applicable to a client under § 122.
The validity of an advance consent will turn on “the extent to which the client reasonably
understands the material risks that the consent entails. The more comprehensive the
explanation of the types of future representations that might arise and the actual and
reasonably foreseeable adverse consequences to the client of those representations, the
5
In contrast to the materiality standard of rule 1.18(c), ABA Model Rule 1.18(c) requires personal
disqualification of the lawyer only if the lawyer has received information from the prospective client that
“could be significantly harmful to the person.” This difference between these two standards is beyond
the scope of this opinion.
6
Confidentiality applies not only to attorney-client privileged communications but also to all other
“information gained in the professional relationship that the client has requested be kept secret or the
disclosure of which would likely be harmful or embarrassing to the client.” See, e.g., California State Bar
Formal Opinion No. 2003-161, at p. 9. If the lawyer did not get information that is confidential, for
example, because the information was already generally known at the time it was communicated, then
the lawyer is not disqualified from acting adversely to the prospective client in the same or substantially
related matters. (Id. at 8; In re Marriage of Zimmerman (1993) 16 Cal.App.4th 556, 565 [163 Cal.Rptr.3d
135].)
7
greater the likelihood that the client will have the requisite understanding.” (Rule 1.7,
Comment [9]). The experience and sophistication of the client, and whether the client is
independently represented, are also relevant in determining whether the client reasonably
understands the risks involved. (Id. See also, Visa U.S.A. Inc. v. First Data Corp. (N.D. Cal. 2003)
241 F.Supp.2d 1100, 1106; Simpson Strong-Tie Company, Inc. v. Ox-Post International, LLC (N.D.
Cal. 2018) 2018 WL 3956430, *13.
To date, the cases where an advanced written consent have been upheld under California law
tend to fall into two categories. First, such consents have been upheld when a joint client
agrees that if the joint relationship ends, it will not seek to prevent counsel from proceeding
adversely to it on behalf of the other joint client or clients. (Zador Corp. v. Kwan (1995) 31
Cal.App.4th 1285 [37 Cal.Rptr.2d 754]; Elliott v. McFarland Unified School Dist. (1985) 165
Cal.App.3d 562 [211 Cal.Rptr. 802].) A second class of cases involve advance consents to
concurrent adverse representation of an identified client in unrelated matters. (Visa U.S.A. Inc.
v. First Data Corp. (N.D. Cal. 2003) 241 F.Supp.2d 1100.7)
As an alternative to informed consent, rule 1.18(d)(2) also permits representation by other
lawyers in the firm if three conditions are met. First, the lawyer who received the material
confidential information must have taken “reasonable measures to avoid exposure to more
information than was reasonably necessary to determine whether to represent the prospective
client.” Second, the prohibited lawyer must be timely screened from participation in the matter
and any portion of the fee. Third, the prospective client must be given written notice.
With respect to the first requirement, the lawyer who received the information has the burden
of showing that the lawyer took reasonable measures to avoid exposure to more information
7
Conversely, federal courts applying California law have declined to enforce more generally open
ended advance waivers of the right to disqualify a law firm from acting adversely to the consenting
client in unrelated matters. (United States ex rel. Bergelectric Corp. v. Sauer, Inc. (N.D. Cal. 2018) 2018
WL 6619981 (“any and all conflicts of interest which presently exist, or may hereafter exist”), Lennar
Mare Island, LLC v. Steadfast Ins. Co. (E.D. Cal. 2015) 105 F.Supp.3d 1100 (waiver with respect to “any
other client either generally or in in any matter in which [the consenting client] may have an interest” is
“broad, general and indefinite”); Western Sugar Coop. v. Archer-Daniels-Midland Co. (C.D. Cal. 2015) 98
F.Supp.3d 1074 (any existing or future client in any matter not substantially related; open-ended as to
time); Concat LP v. Unilever, PLC (N.D. Cal. 2004) 350 F.Supp.2d 796 (consent to present and future
representation of any existing or new clients adverse to consenting client is unenforceable
“boilerplate”).) However, there is authority from other jurisdictions enforcing such a general consent
against a sophisticated client represented by counsel. (Galderma Laboratories, L.P. v. Actavis Mid
Atlantic LLC (N.D. Tex. 2013) 927 F.Supp.2d 390.) The California Supreme Court did not consider the
validity of more broadly framed advance consents. (Sheppard, Mullin, Richter & Hampton, LLP v. J-M
Manufacturing Company, Inc. (2018) 6 Cal.5th 59, 86 [237 Cal.Rptr.3d 424].) Instead, the Supreme Court
rested its decision invalidating the consent in that case upon the fact that the law firm had failed to
disclose a known existing concurrent loyalty conflict with an existing client. (Id.)
8
than was reasonably necessary to determine whether to represent the prospective client.8 If
the lawyer cannot demonstrate that the lawyer took such measures, then screening is not
available. (See, Judge James Selna’s Order on Motion to Disqualify in SkyBell Technologies. Inc.
v. Ring, Inc. (C.D. Cal. 2018) 2018 WL 6016156, interpreting rule 1.18 and duties to prospective
clients.) There, the district judge disqualified a law firm after a defense lawyer joined the firm
midstream during a patent lawsuit for which the law firm had once made an unsuccessful
marketing pitch to represent SkyBell in enforcing its patents against, among others, Ring, Inc.
Although the firm implemented an ethical screen so the Ring defense lawyers would be
insulated from the firm’s earlier pitch to SkyBell, the law firm was disqualified because the
court concluded the firm had not taken reasonable steps “at each stage of the discussion with
SkyBell” to avoid exposure to more information than was reasonably necessary to determine
whether to represent SkyBell.
Initially, the firm told SkyBell’s outside patent counsel to provide only so much information as
necessary to conduct a conflict search. The court found that the firm had taken reasonable
steps at this stage of the discussions. (Id. at p. 7.) However, after the conflict search revealed no
conflict, attorneys at the disqualified firm participated in several calls and meetings, learned
SkyBell's business objectives and goals for its patent litigation, and presented a 40-page
proposal containing the firm’s strategic analysis. There was no similar admonition to SkyBell to
restrict the information required of the firm to undertake SkyBell’s representation once
conflicts had cleared. The court faulted the lawyers for not affirmatively warning SkyBell to limit
its disclosure of information after conflicts had cleared (Id. at pp. 7-9.), stating “there must be
some type of preceding or concurrent affirmative act that is carried out by the attorney to limit
the disclosure . . . . Skybell’s representatives were never informed . . . that they should withhold
any information and were actually encouraged to provide all the information they could.” (Id.)
Neither rule 1.18 nor the Comments to the rule define what constitutes information
“reasonably necessary to determine whether to represent the prospective client.” The only
reported decision construing rule 1.18 also declined to take a position on that issue. (Skybell
Technologies, supra, at p. 9). Our analysis of the term starts with the observation that the
standard is an objective one: the question is what a reasonable lawyer, would regard as
necessary to make a decision whether to represent the client. It is apparent that the standard is
also designed to be responsive to the particulars of the lawyer’s practice and the prospective
client’s case.
Clearly, the term encompasses any information reasonably necessary to determine whether the
lawyer is ethically permitted to undertake the case, such as information necessary to check
conflicts and perhaps, in a litigation context, information about the merits to permit a
preliminary judgment that the prospective client’s position is not frivolous. But the rule as
8
See the Board of Trustees of the State Bar of California Agenda Item 701 from the March 10, 2017
meeting at Attachment C-1 [Reports & Recommendations for Rules 1.0-1.18], at p. 950 [Commission’s
Response to Dissent Submitted by Robert Kehr on the Recommended Adoption of Proposed Rule
1.18(d)(2)].
9
written is not limited to the information reasonably required to determine whether
representation is permissible. Instead it reaches all types of information relevant to the
decision whether to represent a client. Such information could include information about the
prospective client and its business, the nature of any proposed transaction, or the merits of the
case that is far more extensive than needed to determine whether representation is ethically
permissible.
This conclusion is supported by the Restatement (Third) of the Law Governing Lawyers, § 15.
There, the reporters Comment (c), § 15, provides in pertinent part:
It is often necessary for a prospective client to reveal and for the lawyer to learn
confidential information (see §59) during an initial consultation prior to their decision
about formation of a client-lawyer relationship. For that reason, the attorney-client
privilege attaches to communications of a prospective client (see §70, Comment e). The
lawyer must often learn such information to determine whether a conflict of interest
exists with an existing client of the lawyer or the lawyer’s firm and whether the matter is
one that the lawyer is willing to undertake. (emphasis added)
***
In order to avoid acquiring disqualifying information, a lawyer considering whether or not
to undertake a new matter may limit the initial interview to such confidential information
as reasonably appears necessary for that purpose. Where that information indicates that
a conflict of interest or other reasons for nonrepresentation exists, the lawyer should so
inform the prospective client or simply decline the representation . . . .
To summarize, in order to satisfy the requirements of rule 1.18(d)(2) an interviewing law firm
must undertake affirmative actions to avoid exposure to more information than is reasonably
necessary to determine whether to represent the prospective client. The Committee concludes
that such information may, in appropriate circumstances, exceed the information required to
determine whether the representation is ethically proper.
Discussion of Scenarios
In all of the scenarios, Lawyer received information that is both protected by the duty of
confidentiality and is material to the representation. Rule 1.18(b) and (c).9 Accordingly, Lawyer
owes a duty to PC not to use or disclose information received as result of the consultation. Rule
1.18(b). In addition, except in Scenario 2a, where the information received by the lawyer likely
9
Each of the scenarios other than Scenario 4 involves a single lawyer conducting the intake of the
prospective client and making the decisions concerning whether to undertake the representation. In
many firms, however, intake decisions will involve sharing client confidential information with multiple
lawyers, including lawyers having a management or supervisory role in the firm. Where such sharing
occurs, the disqualification and screening rules outlined here will apply to all lawyers who received such
information.
10
ceases to be material at the time that PC files a suit against Competitor, Lawyer is prohibited
from acting adversely to PC in the same or a substantially related matter without informed
written consent from PC and the affected client, Competitor, or an effective advanced consent.
Further, in the absence of an effective informed consent, Lawyer and Law Firm must satisfy the
conditions necessary for an effective ethical screen set forth in rule 1.18(c) and (d)(2) in order
for Law Firm to be permitted to represent Competitor.
Scenario 1
Here, PC has not provided informed consent for Lawyer to represent Competitor nor has
Lawyer taken any measures—let alone reasonable measures—to ensure that Lawyer would
receive no more information than was reasonably necessary to determine whether or not to
represent the prospective client. (Rule 1.18(c) and (d); accord, SkyBell Technologies. Inc. v. Ring,
Inc. (C.D. Cal. 2018) 2018 WL 6016156 [there must be some type of preceding or concurrent
affirmative act that is carried out by the lawyer to limit the disclosure and the lawyer should
advise prospective client to withhold any information deemed “confidential”].) Accordingly,
neither Lawyer nor Law Firm may represent Competitor.
Scenario 2a
In this scenario, Lawyer has learned that PC plans to sue a current client of Law Firm,
Competitor. This information is material to both PC and to Competitor. Consistent with the
analysis under Scenario 1, Lawyer owes a duty to PC not to use or disclose information received
as result of the consultation. On the other hand, Lawyer has a duty to inform his current client
of significant developments related to the representation. While there is no reported California
case on point here, the weight of ethics opinions is that Lawyer may not use or disclose the
information acquired from PC to Law Firm’s existing client, Competitor, notwithstanding
Lawyer’s duty to communicate (rule 1.410) and the inherent duty of loyalty to Competitor.
In Flatt v. Superior Court (1994) 9 Cal.4th 275 [36 Cal.Rptr.2d 537], the California Supreme Court
held that a lawyer’s duty of loyalty to an existing client not only precluded the lawyer from
representing a prospective client against the existing client but also insulated the lawyer from
liability in failing to advise the prospective client of the potential statute of limitations of any
claim the prospective client may have against the lawyers existing client. The court in Flatt,
however, did not address the obligation, if any, of the lawyer to disclose to the existing client
10
Rule 1.4 Communication with Client, paragraph (a)(3) and Comment [1] states:
An attorney shall “keep the client reasonably informed about significant developments relating to
the representation, including promptly complying with reasonable requests for information and
copies of significant documents when necessary to keep the client so informed . . . ”
Comment [1]: “A lawyer will not be subject to discipline under paragraph (a)(3) of this rule
for failing to communicate insignificant or irrelevant information. (See Bus. & Prof. Code,
§ 6068, subd. (m).) Whether a particular development is significant will generally depend on
the surrounding facts and circumstances.”
11
the information the prospective client provided to the lawyer. However, rule 1.6 and Business
and Professions Code section 6068(e)(1) contain no exception that would authorize such
disclosure. Further, case law and prior opinions from this Committee and local bar committees
demonstrate that in such a context, the duty of confidentiality remains paramount so that
disclosure to Competitor is not permitted.
In California State Bar Formal Opinion No. 2003-163, this Committee opined that when an
outside lawyer represents a corporation and also simultaneously represents a corporate
constituent (the Chief Financial Officer) in an unrelated matter, the duty of confidentiality
precluded the lawyer from disclosing the confidences of the CFO to the corporation without the
CFO’s consent despite the duty to communicate and the duty of loyalty owed to the
corporation.
In Los Angeles County Bar Association Opinion No. 528 (2017), the opinion concluded that a
lawyer engaged by an insurance carrier to defend the interests of an insured is prohibited from
disclosing to the insurance carrier information obtained from the insured that could provide a
basis for the insurance carrier to deny coverage.
Implicit in the logic of these authorities, and of the Comments to rule 1.6, is the recognition
that the duty of confidentiality prevents disclosure or use of confidential information received
from a current client, notwithstanding the lawyer’s duties of loyalty and to communicate to
another client information that may be material to that client’s representation. (Rule 1.6,
Comment [1], citing In re Jordan (1974) 12 Cal.3d 575, 580 [116 Cal.Rptr. 371]). The Committee
has found no authority that would suggest that the rule should be otherwise with respect to
disclosures made by either a prospective client or a previous client.11 Accordingly, in each
scenario Lawyer has a duty not to use or disclose the information imparted by PC absent
application of rule 1.6(b) or PC’s informed consent. (Rule 1.18(b), referring to rule 1.9.12)
11
A leading non-California case is consistent with the conclusion that in the absence of an exception to
the duty of confidentiality, that duty must be honored notwithstanding the duty of loyalty to an existing
client. In A v. B (1999) 158 N. J. 51 [726 A.2d 924], a law firm represented a husband and wife jointly in
planning their estates. Through an error in the firm’s conflict system, the firm undertook to represent a
woman in a paternity action against the husband. When the firm realized the error, it withdrew from the
representation against the husband and asked the husband for consent to disclose the existence of the
illegitimate child to the wife, but the husband refused. The New Jersey Supreme Court held that the
information was confidential, but that the broad New Jersey exception to confidentiality for fraud
prevention permitted the firm to disclose to the wife. California has not recognized an exception to the
duty of confidentiality that would permit disclosure in the scenario discussed here.
12
Rule 1.9(b) provides in pertinent part: “a lawyer shall not knowingly represent a person in the same
or substantially related matter in which a firm with which the lawyer formally was associated had
previously represented a client (1) whose interests are materially adverse to that person, and (2) about
whom the lawyer had acquired information protected by Business and Professions Code section 6068,
12
Should PC later sue Competitor, however, Lawyer may be permitted to represent Competitor
against PC. The confidential information that Lawyer received from PC concerning its intention
to sue Competitor is likely rendered immaterial by the fact that PC has now sued, a fact now
known by Competitor. Moreover, Lawyer took reasonable measures to limit the client’s
disclosures to information reasonably necessary to assess the existence of a conflict and was
successful in doing so. Accordingly, unless some aspect of the initial consultation with Lawyer,
such as its timing, remains material, Lawyer should not be personally prohibited from
undertaking the representation. Rule 1.18 (c).13 Further, even if Lawyer were personally
prohibited from representing Competitor, a timely screen and compliance with rule 1.18(d)(2)
would permit Law Firm to represent Competitor because, unlike in Scenario 1, Lawyer took
reasonable steps to obtain no more information than was necessary to determine whether
Lawyer or Law Firm had a conflict of interest.
Scenario 2b
Unlike scenario 2a, PC volunteers material confidential information to Lawyer during the
interview even though the Lawyer had instructed PC not to provide such information and
Lawyer’s questions did not seek to elicit such information.
As with the other scenarios, PC was engaged in a good faith effort to obtain legal
representation, and Lawyer indicated a willingness to discuss that possibility. Therefore, under
rule 1.18(b), Lawyer may not use or disclose the confidential information. And, because Lawyer
has acquired material confidential information from PC, even though Lawyer instructed PC not
to disclose such information, Lawyer is prohibited from acting adversely to PC in the same or
substantially related matter. (Rule 1.18(c).) However, because Lawyer took reasonable
measures to avoid the disclosure of any more information than was reasonably necessary to
determine whether to accept the representation, Law Firm would not be prohibited from
representing Competitor if Law Firm timely establishes an effective ethical screen and complies
with the requirements of rule 1.18(d)(2).
subdivision (e) and rules 1.6 and 1.9(c) that is material to the matter; unless the former client gives
informed written consent.”
In some circumstances, the lawyer’s inability to use or disclose a prospective client’s confidential
information for the benefit of an existing client may give rise to a potential conflict under rule 1.7(b)
because it gives rise to a significant risk that the representation of the existing client may be materially
impaired by the firm’s obligations to the former prospective client. In such situations, if the lawyer
cannot obtain informed consent to the conflict, the lawyer may be required to withdraw from
representing the existing client. (Rule 1.16.) A full discussion of these issues is beyond the scope of this
opinion.
13
For example, the timing of PC’s consultation with Lawyer may be relevant to the existence of a
defense under the statute of limitations or the doctrine of laches that turns on when the client
discovered the existence of a claim or, in a family law case, to the date of marital separation.
13
Scenario 3
As with the other scenarios, Lawyer is prohibited from representing Competitor and may not
use or disclose the confidential information received from PC. On the other hand, Law Firm
should be able to represent Competitor with a timely and adequate screen and compliance
with the rule 1.18(d)(2) because, at all times, Lawyer made reasonable efforts to avoid
disclosure to more information than was reasonably necessary to determine whether to
undertake the representation. Information necessary to determine whether to undertake the
representation is context-dependent and may include information other than information to
determine whether the engagement is ethically permissible. For example, it may be reasonable
to request information from a prospective client relating to the client’s reputation, ability to
pay its bills, or, in contingent fee or fee award cases, the merits of the case and recoverable
damages. In this case, Lawyer initially advised PC to disclose only the information necessary to
determine whether a conflict existed. Then, when PC requested representation on an hourly
basis, Lawyer advised PC to disclose only the information that was necessary to determine
whether PC would be able to pay anticipated fees on an hourly basis. Finally, when PC
requested that Law Firm undertake the cases on a contingent basis, Lawyer advised PC that it
should provide no more information than needed to permit Lawyer to assess the likelihood of
success and the amount of a recovery from which fees would be paid. In each instance, Lawyer
cautions PC against disclosing more information that is reasonably necessary for Lawyer’s
inquiry. Under the circumstances, each of these classes of information was no broader than
reasonably necessary for Lawyer to decide whether it would recommend to Law Firm to accept
the case on the terms proposed by PC. In addition, after receiving and reviewing PC’s
information and deciding against recommending that Law Firm take the case, Lawyer does not
share any of PC’s information, the related analysis that Lawyer conducted, or any conclusions
that Lawyer reached with any other member of Law Firm.
Under these facts, it is the Committee’s opinion that Lawyer’s affirmative efforts to secure no
more information than is necessary to determine whether to undertake PC’s representation
would permit Law Firm to represent Competitor if Law Firm timely set up an ethical screen and
complied all the requirements of rule 1.18(d)(2).14
Scenario 4
Consistent with the discussion under Scenario 2a and 3, Lawyer and the team who received
PC’s material confidential information are prohibited from representing Competitor against PC,
because they actually received confidential information material to the matter. Again, Lawyer
and the interviewing team may not use or disclose such confidential information.
14
The screen should be timely if it is set up promptly after the initial consultation with Competitor.
Screening involves “the isolation of a lawyer from participation in a matter.” Rule 1.0.1(k). Until
Competitor has consulted Law Firm, there is no “matter” in which the personally disqualified lawyers
who participated in the beauty contest can participate or from which they can be isolated.
14
The availability of ethical screening for Law Firm, independent of informed consent under these
facts, is more problematic since not only has Lawyer obtained information that was necessary
for Law Firm’s decision to represent PC, but, at PC’s request, Lawyer has obtained information
and provided analysis and work product to PC in order to persuade PC to retain Lawyer and Law
Firm; information that Lawyer did not require to decide that Law Firm was both willing and able
to take the case. It is doubtful that the scope of information received by Lawyer and the
interviewing team that PC insisted on providing in order to evaluate Law Firm’s qualifications is
“reasonably necessary [for the lawyer] to determine whether to represent the prospective
client . . .” and accordingly, it is doubtful that ethical screening would be available and sufficient
to permit Law Firm to represent Competitor.
Here, however, in consideration of Law Firm’s agreement to perform an initial evaluation of the
case, PC has given advanced written consent to Law Firm’s representation of Competitor
adverse to PC, provided that any lawyers who received its confidential information in the
course of the beauty contest were timely screened from the matter.
In order for a consent to be informed, the lawyer must have “communicated and explained (i)
the relevant circumstances and (ii) the material risks, including any actual and reasonably
foreseeable adverse consequences of the proposed course of conduct.” Rule 1.0.1 (e).
Assuming PC’s advance consent was informed within the meaning of rule 1.01(e), it would be
ethically proper, because it is consistent both with applicable case law and the other criteria set
forth in Comment [9] to rule 1.7. Like the consent in Zador Corp. v. Kwan, supra, 31 Cal.App.4th
1285, it is limited to representation of an identified opponent or opponents.15 In addition, with
this advanced consent, PC waived only its claim to be able to disqualify by imputation lawyers
who were not involved in the beauty contest; in contrast, the consent in Zador permitted
adverse representation by the same lawyers who had previously acted for the consenting
client. Finally, consistent with Comment [9], PC is sophisticated and represented by its own in-
house counsel, and specifically invited the disclosure in order to meet its own objectives.
CONCLUSION
An interviewing lawyer owes a prospective client the same duty of confidentiality owed to an
existing client whether or not a lawyer-client relationship thereafter ensues. (Rule 1.18(a).) The
lawyer may not disclose such information or use it to the client’s disadvantage without the
prospective client’s informed consent. (Rule 1.18(b).) This is true even if the information would
be material to the representation of an existing client of the lawyer or the lawyer’s law firm—
the duty of confidentiality to the prospective client outweighs the duty to inform the current
client.
15
Accordingly, it is not necessary to this opinion to address the question of the enforceability of more
generally framed advance waivers to conflicts involving unspecified matters or unspecified adverse
clients, and we express no view on that issue.
15
A lawyer who receives material confidential information from a prospective client is prohibited
from accepting representation adverse to the prospective client in the same or a substantially
related matter absent informed written consent, which may be given in advance of receiving
the information (rule 1.9(a) and rule 1.18(b)). Likewise, absent informed written consent, the
other members of the lawyer’s law firm are prohibited from representing the client unless the
interviewing lawyer took reasonable measures to obtain only that information reasonably
necessary to determine whether to represent the existing client and the law firm promptly
undertook the screening measures specified in rule 1.18(d)(2).
This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of
the State Bar of California. It is advisory only. It is not binding upon the courts, the State Bar of
California, its Board of Trustees, any persons, or tribunals charged with regulatory
responsibilities, or any licensee of the State Bar.
16