By Laura Popps

With the adoption of new Texas Disciplinary Rule of Professional Conduct 1.18[1] on October 1, 2024, Texas lawyers will find it significantly easier to handle client consultations without fear of being conflicted out of future representations.

Prior to the adoption of Rule 1.18, there were no Texas disciplinary rules specifically defining a lawyer’s duties to prospective clients. However, Professional Ethics Committee Opinion 691[2] made clear that the duty of confidentiality explicit in Rule 1.05[3] applied to information provided by prospective clients.

This created a dilemma for lawyers who might be inadvertently–or intentionally in some cases–conflicted out of a case or future representation as the result of a consultation in which confidential information was shared but no attorney-client relationship was ultimately formed. More specifically, if a lawyer received information from a prospective client that could be significantly harmful to that person, and a different client then sought to hire the lawyer in the same or a substantially related matter, the lawyer was prohibited from taking on the new client. This conflict would then be imputed to all lawyers in the firm.

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With new Rule 1.18, there are now several layers of protection for lawyers and law firms in this situation.

Although Rule 1.18 confirms that information received from prospective clients cannot be used or revealed to their detriment or in a way that is contrary to the disciplinary rules, it limits the definition of “prospective clients.” Rule 1.18 (a) defines a “prospective client” as a person who consults with a lawyer “in good faith” about the possibility of forming a client-lawyer relationship.[4] Further,

“A person who communicates with a lawyer for the purpose of disqualifying the lawyer, or for some other purpose that does not include a good faith intention to seek representation by the lawyer, is not a ‘prospective client’ within the meaning of this Rule.”[5]

In addition, a lawyer is not automatically disqualified from representing a new or existing client adverse to a prospective client if confidential information was exchanged. Rather, the lawyer is disqualified only if the information obtained from the prospective client “could be significantly harmful to that person in the matter.”[6]

Even when the lawyer has received harmful information from a prospective client, representation adverse to the prospective client is still permissible in two scenarios. One is if both the affected client and the prospective client give informed, written consent.[7]

The second is when the lawyer took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client. In this scenario, the conflict will not be imputed to the rest of the firm if the affected lawyer is timely screened from the matter and does not receive part of the fee therefrom, as long as written notice is promptly given to the prospective client.[8]

The availability of new screening provisions to avoid conflict imputation is also seen in new Rule 1.10, discussed here.

In addition, a lawyer may condition a consultation on the prospective client’s informed consent that no information disclosed during the consultation will prohibit the lawyer from representing a different client in the matter, or that the lawyer is allowed to use information received during the consultation.[9]

By retaining confidentiality protections for good faith prospective clients while at the same time protecting lawyers from litigants attempting to disqualify them, Rule 1.18 strikes the right balance between client protection and the realities of a modern legal practice.

Laura Popps defends Texas attorneys before the State Bar, advises on legal ethics, and handles criminal appeals. A former prosecutor, Laura has been Board Certified in Criminal Law by the Texas Board of Legal Specialization since 1999. She then served for ten years as Regional Counsel at the State Bar of Texas’ Office of Chief Disciplinary Counsel before founding her own firm. Laura can be reached at laura@poppslaw.com or (512) 865-5185.

[1] Tex. Disciplinary R. Prof’l Conduct 1.18.
[2] Tex. Comm. on Prof’l Ethics Op. 691 (2021).
[3] Tex. Disciplinary R. Prof’l Conduct 1.05.
[4] Tex. Disciplinary R. Prof’l Conduct 1.18(a).
[5] Id.
[6] Tex. Disciplinary R. Prof’l Conduct 1.18(b).
[7] Tex. Disciplinary R. Prof’l Conduct 1.18(d)(1).
[8] Tex. Disciplinary R. Prof’l Conduct 1.18(d)(2).
[9] Tex. Disciplinary R. Prof’l Conduct 1.18, cmt. 5.

New Protections for Texas Lawyers Consulting with Prospective Clients