Thank you to the longtime reader who sent in: “Confidentiality obligations to prospective clients addressed in new ABA ethics opinion” —

• “A prospective client is a person who consults a lawyer about the possibility of forming lawyer-client relationship but then doesn’t form such a relationship. The confidentiality duties owed to prospective clients are not as onerous as that owed to existing or former clients.”
• “However, Rule 1.18(c) provides that a lawyer is prohibited from accepting a new client with interests materially adverse to a former prospective client in a matter that is the same or substantially related to the consultation with the former prospective client. This prohibition applies if the lawyer previously had received information from a prospective client that could be ‘significantly harmful’ to the prospective client.”
• “Formal Opinion 492, released Tuesday by the ABA’s Standing Committee on Ethics and Professional Responsibility, sheds light on when information from a prospective client could be “significantly harmful” to that individual.”
• “Under this ‘significantly harmful’ test, the prospective client seeking protection under Rule 1.18 ‘need not demonstrate that the harm is certain to occur in order to demonstrate a conflict.’ Instead, the rule focuses on information that ‘could be significantly harmful.'”
• “Such information, according to the opinion, could include views on various settlement issues, the prospective client’s strategic thinking on litigation, sensitive and personal information in a divorce case, knowledge of a settlement position, or the possible terms and structure of a proposed bid by one corporation to purchase another corporation.”
• “If a lawyer has acquired confidential information from a prospective client, that also disqualifies the lawyer’s firm unless the lawyer is screened and both the prospective and affected clients give informed consent in writing.”

For more, see the complete text of Formal Opinion 492.