Ethics 20/20 Proposal to Amend Rule 1.18 (Duties to Prospective Clients)

Ethics 20/20 Proposal to Amend Rule 1.18 (Duties to Prospective Clients)

The ABA Commission on Ethics 20/20’s final revised drafts of Commission Proposals are scheduled to go to the ABA House of Delegates in August 2012. Among these is a proposal to amend Rule 1.18 (Duties to Prospective Clients).

The amendment has given serious consideration to the issues regarding the formation of a client-lawyer relationship. The amendment has specifically added that a prospective client must have “a reasonable expectation that the lawyer is willing to consider forming a client-lawyer relationship”. The Commission concluded that the definition must be sufficiently flexible to address the increasing volume of electronic communications that lawyers now receive from people who seek legal services.

Comment 3 to the proposed rule elaborates:  ” The reasonableness of the person’s expectations may depend on a number of factors, including whether the lawyer encouraged or solicited inquiries about a proposed representation; whether the lawyer previously represented or declined to represent the person; whether the person, prior to communicating with the lawyer, encountered any warnings or cautionary statements that were intended to limit, condition, waive or disclaim the lawyer’s obligations; whether those warnings or cautionary statements were clear and reasonably understandable; and whether the lawyer acted or communicated in a manner that was contrary to the warnings or cautionary statements.  For example, if a lawyer’s website encourages a website visitor to submit a personal inquiry about a proposed representation and the website fails to include any cautionary language, the person submitting the information could become a prospective client.  In contrast, if a lawyer’s website does not expressly encourage or solicit inquiries about a proposed representation and merely offers general information about legal topics or information about the lawyer or the lawyer’s firm, such as the lawyer’s contact information, experience, and areas of practice, this information alone is typically insufficient to create a reasonable expectation that the lawyer is willing to consider forming a client-lawyer relationship.”

Comment 2 also disqualifies prospective client status to a person who contacts a lawyer simply to taint representation for disqualification purposes.