There is a difference between Rules 1.9 and 1.18, though many times the difference is not always obvious.

What is the difference between Rule 1.9 of the Rules of Professional Conduct involving a former client and conflict, and Rule of Professional Conduct 1.18 titled “Duties to Prospective Clients?” 

Samuel C. Stretton.

The bottom line is that both Rule 1.9, which is titled “Duties to Former Clients,” and Rule 1.18, which is titled “Duties to Prospective Clients,” have the main purpose of precluding use of confidential information even if someone only consults briefly with a lawyer and discusses conflict of interest issues. But, Rule 1.18 is not as stringent in terms of Rule 1.9.

While there is much overlap, Rule 1.18 deals with a person who consults with a lawyer. The rule was broadened to include consultation not only in person, such as at a party or someone who comes in and asks for advice but never hires the lawyer, but also reflects and includes modern electronic communication. Rule 1.18 uses the term “consults.” That could be in person, it could be electronic, or it could be on the internet,

Second, Rule 1.18 allows subsequent representation if the prospective client gives informed consent. Rule 1.9 is far broader than Rule 1.18. Under Rule 1.9 there are times when there cannot be a waivable conflict.

In essence, Rule 1.18 tries to deal with the reality of people consulting with multiple lawyers.  This is a problem sometimes in smaller counties where a sophisticated client would consult with every domestic lawyer, for instance, for the purpose to disqualify the lawyers.

Lawyers often meet people and people ask for advice. Later another client comes in and the lawyer decides to represent the new client, and then later it turns out that person who had asked for some advice earlier would be the opposing party. The lawyer then must decide whether they can continue representation.

Obviously, Rule 1.18(b) precludes a lawyer from using information gained from the prior client which would significantly harm that person. There is a slightly less standard than Rule 1.9(c) which precludes using information related to the representation to the disadvantage of a former client. In Rule 1.9(c), the lawyer can’t use any information to the disadvantage of a former client. Rule 1.18 allows the use of information unless it is significantly harmful. Of course, one could argue that in many cases that might be a distinction without a difference.

Also, under Rule 1.18(c), the lawyer must have directly learned about the confidential information. Rule 1.9 does not require the lawyer to have actually received the confidential information directly. Rule 1.9 has the presumption or suggestion that the lawyer will receive confidential information or should have and, therefore, the lawyer is disqualified. Rule 1.18 actually requires the lawyer to have received the confidential information.

Any lawyer should be careful when talking with a prospective client. It would be tragic to have someone consult for a short time period and then a month later lose a case with a substantial fee because of that earlier half hour consultation. A wise lawyer should not take these consultations lightly and will make a record of the consultation as to what was said or not said so there is a memo if an issue comes up down the line.

This writer has experienced this problem several times over the years where people call and ask a question. For instance, attorneys call and ask for advice, eight months later when one begins representing another lawyer who was involved on the same issue as discussed in the consultation eight months before. Many times, one won’t even remember the brief telephone conversation months ago after numerous trials and meetings. But the other person will remember and potentially there is a disqualification.

Comment 2 to Rule 1.18 was changed in 2013. That comment clearly clarifies that any communication can be either written, oral or electronic. The comment notes that Rule 1.18 would not apply if the lawyer received unsolicited information or an email from a prospective client even if it was in response to an advertisement. Also, the comment notes that if someone has the intention of seeing a lawyer just to disqualify them, then the disqualification provisions in Rule 1.18 would not be applicable.

Therefore, to answer the question, there is a difference between Rules 1.9 and 1.18, though many times the difference is not always obvious. But, in essence, when viewing what occurred with a consultation or prospective client, the key problem is always confidential information. If the confidential information will hurt or could be used against that former client and was actually received, then there is a good chance under Rule 1.18 that the lawyer cannot continue to represent the person. As noted above, this is a slightly lesser standard than a disqualification with a former client under Rule 1.9 which, at times, will assume the lawyer has received confidential information as opposed to Rule 1.18, which requires actual receipt of the confidential information.

A lawyer must at all times have honesty and integrity as part of their regular approach to the practice of law.

What is one of the most serious things a lawyer can do in violating the Rules of Professional Conduct?

While a violation of any of the rules is a serious matter, some are more serious. For instance, misusing client or fiduciary funds is extremely serious and often can result in very substantial discipline.

The essence of a lawyer is honesty and integrity. The most important thing for a lawyer is not to mislead, not to make false statements and not to lie. That covers many of the rules. Lying or deceit would cover misuse of funds or conversion of funds. It would cover presenting false evidence. It would cover not truthfully communicating with clients.

Rule 8.4(c) of the Rules of Professional Conduct precludes a lawyer from being deceitful, misleading, misrepresenting, etc. There are also other rules that cover that situation. Rule 3.3(a)(1) states that a lawyer should not knowingly make a false statement of material fact or law to a judge or tribunal and if he does, then he must correct it. Rule 4.1 of the Rules of Professional Conduct titled “Truthfulness in Statements to Others,” requires that a lawyer, when representing a client, to not knowingly make a false statement of material fact or law to a third person or fail to disclose a material fact to a third person when disclosure is necessary to avoid aiding and abetting criminal or fraudulent conduct by the client.

A lawyer is a lawyer 24 hours a day, seven days a week. Some of these rules are directed just toward representing clients. But, Rule 8.4(c) involves any aspect of the lawyer’s life. The lawyer, even if they are “off duty,” cannot lie or mislead. Therefore, if a lawyer makes a misstatement in a mortgage application for a home, that could result in serious discipline to the lawyer.

Daniel Webster once said, “Show me an honest man and I will show you an attorney.” That’s the way law supposedly should be. Clearly, lawyers can make mistakes and find out that positions asserted are incorrect. That happens all the time in litigation as long as the lawyer corrects the situation. But a lawyer has to have the reputation of having honesty and integrity when addressing the court and dealing with opposing counsel. That is why law is a profession. Although, clearly, the lawyers have to make a living, law is far more than a business. Money-making is secondary to helping people and making the judicial system work properly whether in the criminal, civil or family venue. It takes a long time to get a good reputation. But a good reputation could be lost in a matter of seconds if the lawyer misleads on a serious matter.

Younger members of the bar who face great financial pressure often times have to remember that the distinction between being a lawyer and a businessman is professionalism and the absolute requirement of integrity. One would like to hope all businesspeople have integrity at heart, but they do not operate nor are they covered by the Rules of Ethics that lawyers must live by. Many times ethics in dealing with the world of business and integrity are lacking. But the legal profession can never allow a lapse in honesty and integrity. There is no excuse for dishonesty as a lawyer.

Further, a lawyer should be careful about calling their opponent dishonest. It seems at times to be a sport to suggest the opposing lawyer misled or is dishonest or the favorite term now, “disingenuous.” All of the above are very serious accusations against a fellow lawyer and should not be made lightly and really should not be made at all. If something is incorrect, just state it. There is no need to claim that the other lawyer is a liar.

False statements by lawyers can have very serious consequences. In the case of Office of Disciplinary Counsel v. Holston, 619 A.2d 1054 (Pa., 1993), a lawyer was disbarred for making a false statement to the court and for altering a court order involving domestic cases. There is no excuse for a lawyer not acting with integrity at all pertinent times. For instance, a military officer must have bravery and courage, a lawyer must at all times have honesty and integrity as part of their regular approach to the practice of law. Failure to demonstrate honesty and integrity is the most serious failure of any lawyer.

Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pennsylvania, 19381.