Saturday, March 8, 2008

Disqualifying Fannick: Rule of Professional Conduct 1.18

C. The Court may still disqualify Attorney Fannick if the Court finds that Joseph Kerekes was a ‘prospective client’ as opposed to a ‘former client’.

Pennsylvania Rule of Professional Conduct 1.18 Duties to Prospective Clients states:

“(a) A person who discusses with a lawyer the possibility of forming aclient-lawyer relationship with respect to a matter is a prospective client.

(b) Even when no client-lawyer relationship ensures, a lawyer who has had discussions with a prospective client shall not or reveal information which may be significantly harmful to that person 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 a 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, or;

(2) all of the following apply:

(i) the disqualified lawyer took reasonable measures to avoid exposure to more disqualifying information than was reasonable necessary to determine whether to represent the prospective client;

(ii) the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee there from; and

(iii) written notice is promptly given to the prospective client.