Adopted | amendment to Rule 1.18, Duties to Prospective Client, in Comment 6.
Approved by the Supreme Court of Virginia December 23, 2020, effective immediately.

December 23, 2020

On December 23, 2020, the Supreme Court of Virginia approved the amendment to Rule 1.18, Comment 6. Effective immediately.

View the Court's order (PDF)

October 23, 2020

The proposed amendments were approved by Bar Council on October 23, 2020, and are pending consideration by the Supreme Court of Virginia.

View the petition to the Court (pdf)

View appendix to the petition to the Court (pdf)

August 27, 2020

At its meeting on August 27, 2020, the Standing Committee on Legal Ethics approved submitting the amendments to the Executive Committee and Bar Council for approval at their upcoming October meetings.

The Standing Committee on Legal Ethics approved the proposed rule changes but voted to delay submission to Bar Council pending staff’s decision to make changes as a result of required minor amendments that address typos or inconsistencies in the comments to these rules.

May 2019

Pursuant to Part 6, § IV, ¶ 10-2(C) of the Rules of the Supreme Court of Virginia, the Virginia State Bar’s Standing Committee on Legal Ethics is seeking public comment on proposed amendments to Rule 1.18 of the Rules of Professional Conduct.

The proposed amendment to Rule 1.18 removes a phrase from Comment 6 to the Rule, “the lawyer believes that an effective screen could not be engaged to protect the client,” which is inconsistent with the section of the rule the comment is interpreting. Paragraph (c) of the Rule, and the balance of Comment 6, provides that a lawyer is not disqualified by a contact with a prospective client so long as she has not received significantly harmful information from the prospective client, and there is no need for a screen to be used under the circumstances. The language that the Committee proposes to delete does not belong in that comment, because either the lawyer is not disqualified and there is no need to form a belief about the effectiveness of a screen, or the lawyer is disqualified under paragraph (c) and paragraph (d) of the Rule, and Comments 7 and 8, must be applied to the situation.

Inspection and Comment

The proposed rule amendments may be inspected below or at the office of the Virginia State Bar, 1111 East Main Street, Suite 700, Richmond, Virginia 23219-0060, between the hours of 9:00 a.m. and 4:30 p.m., Monday through Friday, or by contacting the Office of Ethics Counsel at 804-775-0557.

Any individual, business, or other entity may file or submit written comments in support of or in opposition to the proposed opinion with Karen A. Gould, executive director of the Virginia State Bar, not later than May 24, 2019. Comments may be submitted via email to [email protected].

RULE 5.5       Unauthorized Practice Of Law; Multijurisdictional Practice of Law

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; the disqualified lawyer reasonably believes that the screen would be effective to sufficiently protect information that could be significantly harmful to the prospective client; and 

(ii) written notice that includes a general description of the subject matter about which the lawyer was consulted and the screening procedures employed is promptly given to the prospective client. 

COMMENT

 [1] Prospective clients, like clients, may disclose information to a lawyer, place documents or other property in the lawyer's custody, or rely on the lawyer's advice. A lawyer's discussions with a prospective client usually are limited in time and depth and leave both the prospective client and the lawyer free (and sometimes required) to proceed no further. The principle of loyalty diminishes in importance if the sole reason for an individual lawyer’s disqualification is the lawyer’s initial consultation with a prospective new client with whom no client-lawyer relationship is formed, either because the lawyer detected a conflict of interest as a result of an initial consultation, or for some other reason (e.g., the prospective client decided not to retain the firm). Hence, prospective clients should receive some but not all of the protection afforded clients.

[2] Not all persons who communicate information to a lawyer are entitled to protection under this Rule. A person who communicates information unilaterally to a lawyer, without any reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship, is not a "prospective client" within the meaning of paragraph (a).

[3] It is often necessary for a prospective client to reveal information to the lawyer during an initial consultation prior to the decision about formation of a client-lawyer relationship. The client may disclose such information as part of the process of determining whether the client wishes to form a client-lawyer relationship.  The lawyer often must learn such information to determine whether there is a conflict of interest with an existing client and whether the matter is one that the lawyer is willing to undertake. Paragraph (b) prohibits the lawyer from using or revealing that information, except as permitted by Rule 1.9, even if the client or lawyer decides not to proceed with the representation. The duty exists regardless of how brief the initial conference may be.

[4] In order to avoid acquiring disqualifying information from a prospective client, a lawyer considering whether or not to undertake a new matter should limit the initial interview to only such information as reasonably appears necessary for that purpose. Where the information indicates that a conflict of interest or other reason for non-representation exists, the lawyer should so inform the prospective client or decline the representation. If the prospective client wishes to retain the lawyer, and if consent is possible under Rule 1.7, then consent from all affected present or former clients must be obtained before accepting the representation.

[5] A lawyer may condition conversations with a prospective client on the person's informed consent that no information disclosed during the consultation will prohibit the lawyer from representing a different client in the matter. If the agreement expressly so provides, the prospective client may also consent to the lawyer's subsequent use of information received from the prospective client.

[6] Even in the absence of an agreement, under paragraph (c), the lawyer is not prohibited from representing a client with interests adverse to those of the prospective client in the same or a substantially related matter unless the lawyer has received from the prospective client information that could be significantly harmful if used in the matter and the lawyer believes that an effective screen could not be engaged to protect the client.

[7] Under paragraph (c), the prohibition in this Rule is imputed to other lawyers as provided in Rule 1.10, but, under paragraph (d)(1), imputation may be avoided if the lawyer obtains the informed consent, confirmed in writing, of both the prospective and affected clients. In the alternative, imputation may be avoided if the conditions of paragraph (d)(2) are met and all disqualified lawyers are timely screened and written notice is promptly given to the prospective client and the lawyer reasonably believes that an effective screen will protect the confidential information of the prospective client. Paragraph (d)(2)(i) does not prohibit the screened lawyer from receiving a salary or partnership share established by prior independent agreement, but that lawyer may not receive compensation directly related to the matter in which the lawyer is disqualified.

[8] Notice, including a general description of the subject matter about which the lawyer was consulted, and of the screening procedures employed, generally should be given as soon as practicable after the need for screening becomes apparent.

[9] For the duty of competence of a lawyer who gives assistance on the merits of a matter to a prospective client, see Rule 1.1. For a lawyer's duties when a prospective client entrusts valuables or papers to the lawyer's care, see Rule 1.15.