A prospective client told me useful information about my existing client's judgment debtor before I declined the new matter for conflict reasons. May I pass that information to my existing client so it can resume collection?

Plain-English summary

The inquiring attorney obtained a default judgment for an existing client against an individual defendant and a corporate defendant, but efforts to collect were fruitless, the individual defendant said he intended to file bankruptcy, and the client directed the attorney to stop pursuing collection. Later, a prospective client called about a claim and, in describing potential defendants, named the same individual defendant and a limited liability company. The attorney learned that the company's corporate status was under revocation and learned the location and general description of the individual defendant's new business interests, information the attorney believed would help the existing client resume collection. The attorney declined the prospective client's matter because of the conflict and asked whether he or she could tell the existing client what the prospective client had disclosed.

The panel concluded no. It explained that lawyers owe ethical obligations to prospective clients under Rule 1.18 even when no lawyer-client relationship forms. Rule 1.18(b) provides that a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation, except as Rule 1.9 would permit with respect to a former client. The panel noted this cross-reference makes the confidentiality duty to a prospective client more akin to the duty owed a former client than a current client: under Rule 1.9, a lawyer may use, but not reveal, former-client information once it has become generally known, whereas a current client's information is protected against both use and disclosure under Rules 1.6 and 1.7.

Applying that framework, the panel held that the attorney learned from the prospective client that the existing client's judgment debtor is the sole shareholder of a limited liability company and may not be bankrupt after all, and that although the attorney believed this would help the existing client renew collection efforts, Rule 1.18(b) prohibits revealing it. The panel therefore concluded the attorney is not permitted to disclose to the existing client the information learned about the judgment debtor during the consultation with the prospective client.

In practice

Under this opinion, and under the Rhode Island rules as they stood at the time, information a lawyer learns from a prospective client during a consultation is protected even after the lawyer declines the matter, and even where the lawyer believes the information would help an existing client. The panel held Rule 1.18(b) bars the lawyer from using or revealing that information except as Rule 1.9 would allow for a former client, and Rule 1.9 does not permit revealing it. On these facts, the opinion holds the attorney may not pass the prospective client's disclosures about the shared judgment debtor to the existing client.

Common questions

Q: Can I share information a prospective client gave me if I decline the representation?

A: The panel said no beyond what Rule 1.9 would allow for a former client. Rule 1.18(b) bars using or revealing consultation information even when no representation results, and Rule 1.9 does not permit revealing it.

Q: Does it matter that the information would benefit my current client?

A: The panel said no. Even though the attorney believed the information would help the existing client resume collection, Rule 1.18(b) still prohibited disclosing it.

Q: How much protection does a prospective client get compared to a current client?

A: The panel said Rule 1.18 gives a prospective client some but not all protections of a client, more akin to a former client under Rule 1.9: a lawyer may use, but not reveal, such information once it becomes generally known.

Background and rules framework

The opinion applies Rule 1.18 (Model Rule 1.18, duties to prospective client), whose paragraph (b) bars using or revealing information learned in a consultation except as Rule 1.9 would permit for a former client. It reads Rule 1.18 against Rule 1.9 (Model Rule 1.9, duties to former clients), under which a lawyer may use, but not reveal, former-client information once generally known, and Rule 1.6 (Model Rule 1.6, confidentiality of information) and Rule 1.7 (conflict of interest: current clients), which protect a current client's information against both use and disclosure.

Citations and references

Rules of Professional Conduct:

• MR 1.18 (duties to prospective client)
• MR 1.9 (duties to former clients)
• MR 1.6 (confidentiality of information)
• RI RPC 1.18, 1.9, 1.6

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

• RI EAP Op. 2025-15: A Prospective Client Intake Interview Creates a Conflict Requiring Withdrawal
• RI EAP Op. 2024-12: Testifying About a Former Client to Defend an Ineffective-Assistance Claim
• RI EAP Op. 2025-05: Opposing a Former Firm Client Under Rule 1.9(b)

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%2016-06.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Rhode Island Supreme Court
Ethics Advisory Panel Op. 2016-06
Issued June 9, 2016

FACTS

The inquiring attorney filed a lawsuit in 2014 on behalf of Client against an individual (Individual Defendant) and his/her corporation (Corporate Defendant). Both defendants defaulted, and judgment was entered against both of them. An execution issued, but efforts to locate assets of the defendants were fruitless. Individual Defendant stated an intention to file bankruptcy, and at Client's direction, the inquiring attorney stopped pursuing both defendants. Client remains a client of the inquiring attorney.

Recently, the inquiring attorney received a phone call from an individual who discussed a claim he wished to pursue, and who sought the inquiring attorney's advice on how best to pursue it. After they further discussed the possible claims, the inquiring attorney asked the prospective client to identify the putative defendants. The prospective client named a limited liability corporation and its sole shareholder, Individual Defendant, who is Client's judgment debtor. The inquiring attorney states that the corporate status of the limited liability corporation is under revocation, and believes that the revocation expands the potential claims the prospective client has against Individual Defendant. The inquiring attorney further states that he/she learned from the prospective client the location and general description of the new business interests of Individual Defendant. He/she believes this information would assist Client in resuming pursuit of the judgment debt owed to Client by Individual Defendant. The inquiring attorney has declined to represent the prospective client because of the conflict presented by simultaneously pursuing Individual Defendant on behalf of Client and on behalf of the prospective client.

ISSUE PRESENTED

The inquiring attorney asks whether he/she may disclose to Client the information he/she learned from the prospective client about Individual Defendant in order to ascertain whether Client would choose to resume pursuit of Individual Defendant's judgment debt to Client.

OPINION

Rule 1.18 of the Rules of Professional Conduct does not permit the inquiring attorney to disclose to Client information he/she learned about Client's judgment debtor during the consultation with the prospective client.

REASONING

Lawyers have certain ethical obligations to prospective clients, even if no lawyer-client relationship is established. Those obligations are governed by Rule 1.18 entitled "Duties to prospective client." The Rule states:

Rule 1.18. Duties to prospective client. (a) A person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.

(b) Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in 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 information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d). If a lawyer is disqualified 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 disqualifying information as defined in paragraph (c), representation is permissible if:

(1) both the affected client and the prospective client have given informed consent, confirmed in writing, or:

(2) the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; and

(i) the disqualified 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.

Rule 1.18 provides prospective clients with some, but not all, protections afforded clients. During an initial consultation with a lawyer, a prospective client will typically disclose information that assists the lawyer in determining whether there is a conflict of interest with an existing or a former client, and whether the lawyer will undertake the representation. Rule 1.18(b) prohibits the lawyer from using or revealing that information except as permitted by Rule 1.9, even if the lawyer or the client decides not to proceed with the representation. Thus, lawyers have an obligation of confidentiality to prospective clients.

It is apparent from the cross-reference to Rule 1.9 ("Duties to former client") in Rule 1.18(b) that the obligation of confidentiality to a prospective client is more akin to that afforded to a former client than to a current client. The difference is this: With limited exceptions set forth in Rule 1.6 ("Confidentiality of information"), a lawyer may neither disclose nor use information related to the representation of a current client under Rules 1.7 ("Conflict of interest: Current clients") and 1.6, while under Rule 1.9, a lawyer may use, but not reveal, information relating to the representation of a former client when the information has become generally known.

In the instant inquiry, the inquiring attorney learned from the prospective client that Client's judgment debtor, Individual Defendant, is the sole shareholder of a limited liability corporation, and may not be bankrupt after all. The inquiring attorney believes this information would be useful to Client's decision to renew efforts to recover on the judgment against Individual Defendant, and would like to reveal this information to Client. Rule 1.18(b), however, prohibits the inquiring attorney from doing so. The Panel concludes that the inquiring attorney is not permitted to disclose to Client information he/she learned about Client's judgment debtor during the consultation with the prospective client.