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.