Saturday, March 8, 2008

Disqualifying Fannick: Rule of Professional Conduct 1.0

Rule of Professional Conduct 1.0. Terminology states:

“Informed consent” denotes the consent by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.

A lawyer who is consulted by a prospective client but is not retained is obliged to protect the confidentiality of the information received. Rule1.18 Rules of Professional Conduct.

“The rule essentially treats such prospective clients for conflicts purposes as subject to the conflict of interest provisions relating to former clients (See Rule 1.9 Duties to Former Clients), except that the prohibition on subsequent adverse representation is limited to circumstances where the lawyer received information that would, if disclosed, be significantly harmful to the prospective client in the matter.” Attorney Thomas Wilkinson, pastco-chair of the PBA Committee of Legal Ethics, 27- APR Pa.Lawyer 47(2007).

Rule 1.18 Rules of Professional Conduct provides that “a lawyer owes a duty of confidentiality to a person who discusses with the lawyer the possibility of forming an attorney-client relationship, even though no relationship ensues. The rule follows ABA Model Rule 1.18 and Comment with the exception of the requirement that the prospective client’s informed consent to a conflict waiver be ‘confirmed in writing’.” The rule essentially codifies existing case law and Section t 5 of the Restatement of the Law Governing Lawyers (2000)” Attorney Thomas Wilkinson, 27-APR Pa. Lawyer 47 (2007).