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Ch 32, p.46 RULES OF PROFESSIONAL CONDUCT May 2012
must be obtained before accepting the representation.
[5] A lawyer may condition conversations with a prospective client on the person’s informed
consent that no information disclosed during the consultation will prohibit the lawyer from
representing a different client in the matter. See rule 32:1.0(e) for the definition of informed consent.
If the agreement expressly so provides, the prospective client may also consent to the lawyer’s
subsequent use of information received from the prospective client.
[6] Even in the absence of an agreement, under paragraph (c), the lawyer is not prohibited
from representing a client with interests adverse to those of the prospective client in the same or a
substantially related matter unless the lawyer has received from the prospective client information
that could be significantly harmful if used in the matter.
[7] Under paragraph (c), the prohibition in this rule is imputed to other lawyers as provided in rule
32:1.10, but, under paragraph (d)(1), imputation may be avoided if the lawyer obtains the informed
consent, confirmed in writing, of both the prospective and affected clients. In the alternative,
imputation may be avoided if the conditions of paragraph (d)(2) are met and all disqualified lawyers
are timely screened and written notice is promptly given to the prospective client. See rule 32:1.0(k)
(requirements for screening procedures). Paragraph (d)(2)(i) does not prohibit the screened lawyer
from receiving a salary or partnership share established by prior independent agreement, but
that lawyer may not receive compensation directly related to the matter in which the lawyer is
disqualified.
[8] Notice, including a general description of the subject matter about which the lawyer was
consulted and of the screening procedures employed, should be given as soon as practicable after the
need for screening becomes apparent.
[9] For the duty of competence of a lawyer who gives assistance on the merits of a matter to a
prospective client, see rule 32:1.1. For a lawyer’s duties when a prospective client entrusts valuables
or papers to the lawyer’s care, see rule 32:1.15.
[Court Order April 20, 2005, effective July 1, 2005]
Rule 32:2.1: ADVISOR
COUNSELOR
In representing a client, a lawyer shall exercise independent professional judgment and
render candid advice. In rendering advice, a lawyer may refer not only to law but to other
considerations such as moral, economic, social, and political factors, that may be relevant to
the client’s situation.
Comment
Scope of Advice
[1] A client is entitled to straightforward advice expressing the lawyer’s honest assessment. Legal
advice often involves unpleasant facts and alternatives that a client may be disinclined to confront.
In presenting advice, a lawyer endeavors to sustain the client’s morale and may put advice in as
acceptable a form as honesty permits. However, a lawyer should not be deterred from giving candid
advice by the prospect that the advice will be unpalatable to the client.
[2] Advice couched in narrow legal terms may be of little value to a client, especially where
practical considerations, such as cost or effects on other people, are predominant. Purely technical
legal advice, therefore, can sometimes be inadequate. It is proper for a lawyer to refer to relevant
moral and ethical considerations in giving advice. Although a lawyer is not a moral advisor as such,
moral and ethical considerations impinge upon most legal questions and may decisively influence
how the law will be applied. In the final analysis, the lawyer should always remember that the
decision whether to pursue or forgo legally available objectives or methods because of nonlegal
factors is ultimately for the client and not for the lawyer.
[3] A client may expressly or impliedly ask the lawyer for purely technical advice. When such a
request is made by a client experienced in legal matters, the lawyer may accept it at face value. When
such a request is made by a client inexperienced in legal matters, however, the lawyer’s responsibility
as advisor may include indicating that more may be involved than strictly legal considerations.
[4] Matters that go beyond strictly legal questions may also be in the domain of another profession.