Q: Dear Ethics Lawyer, Another lawyer from our firm and I made a pitch to represent company A, which our firm had not previously represented, in a new matter. We discussed with A the strategy that we would employ if hired, based on the facts from their perspective that they provided to us at the time. Unfortunately, we did not get the work. Six months later, I have been asked to take on a different matter for an existing client B who is now adverse to A, one that is not the same or substantially related to the matter that we discussed with A. May the firm or I take the new matter? Do we need any kind of a waiver to do so?
A: At the conclusion of your unsuccessful pitch discussion, in the language of the Model Rule 1.18, company A was a “prospective client.” At that point, you and your firm were obligated not to use or disclose the information you had received from A, except as Rule 1.9 would permit as to a former client. Rule 1.18(b). Under subsection (c), however, you and the firm are not now prevented from representing a different client adverse to A if you can do so without using or disclosing that information, and the matter is not the same or substantially related to the one you pitched for earlier.
If the new matter is substantially related to the one you pitched for earlier, then Rule 1.18 (c) precludes you (and your involved colleague’s) involvement in the new representation, but your firm may be able to still take on the new matter. To do so, conditions described in Rule 118(d) must be met: (1) informed consent, confirmed in writing, from both affected parties; or (2) you took reasonable measures at the time of the pitch to avoid exposure to more disqualifying information than was reasonably necessary, you and your colleague who were exposed to information during the pitch are timely screened from any involvement in the new matter and receive no fees from it, and written notice is promptly given to the prospective client of the adversity and screening (giving it an opportunity to take action if it disagrees with how your firm has complied with the rule).