New guidance from the American Bar Association Standing Committee on Ethics and Professional Responsibility helps clarify when information received from a prospective client could disqualify the lawyer or the lawyer’s from from representing a client.

Formal Opinion 492 offers an interpretation of Model Rule 1.18, which addresses a lawyer’s duties to prospective clients, including a limitation on accepting new clients whose interests are materially adverse to a former prospective client in the same or substantially related matter.

The ABA Model Rules of Professional Conduct bans a lawyer from accepting a client if they have received information that “could be significantly harmful” to the prospective client.

The committee offers a test for whether information is “significantly harmful” that emphasizes the standard regards the potential use of information, not whether the lawyer actually uses the potentially harmful information.

In the opinion, the committee explores how the standard would be applied in several situations.

“Whether information that ‘could be significantly harmful’ has been disclosed by a prospective client is a fact-specific inquiry and determined on a case-by-case basis,” the formal opinion said. “The test focuses on the potential harm in the new matter.”

The opinion cites state ethics opinions and a decision from the North Dakota  Supreme Court to clarify that “significantly harmful” information would include views of the prospective client on strategies for managing a situation; settlement issues or trial strategy; personal accounts of relevant events; sensitive personal information, including financial information; or other information that is sensitive or privileged.

The lawyer’s firm could still accept the new matter if the lawyer is screened or the prospective client provides informed consent.

Opinions on ABA model rules can be found at americanbar.org/groups/professional_responsibility/publications/ethics_opinions.