Saturday, November 4, 2023

Does Georgia not have a rule about prospective clients? -- CORRECTION!

 Does Georgia not have a rule equivalent to Model Rule 1.18 on the duties owed to prospective clients?  ...  That's a rhetorical question because I looked it up and they do.  But you wouldn't know it if you read the news about a recent case decided by the state Supreme Court.

According to the story, published in the ABA Journal online, the Georgia Supreme Court recently tossed a disciplinary case against a lawyer who had been charged with using information revealed by a potential client in a consultation. 

What I find interesting about this story is that the court apparently ruled that the lawyer could not be disciplined because the rule at issue in the case only applies to actual clients.  In other words, the court apparently said that the duty against using confidential information (in rule 1.8) does not apply to prospective clients.

That's fine and dandy but what about rule 1.18?  If the conduct was improper use of confidential information obtained from a prospective client, that would have been the proper rule to apply, and it sounds like the lawyer did violate it. 

So, who made a mistake here?  Did the disciplinary agency charge under the wrong rule?  Did someone forget rule 1.18 exists or what it says?  Was there a typo (1.8 instead of 1.18)?  

I don't know.  But the result of the case does not make sense to me.

UPDATE 11/7/23:   As I said above, my comment was based on the story about the decision, not on the decision itself, which I had not located (and therefore had not read).  Now I have heard from a friend how did just that and he reports that there is a footnote in the opinion that explains that Rule 1.18 was adopted in Georgia after the conduct in question happened.  Now that helps make more sense of the story.

Thanks to Bill Freivogel for the update!

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