37 CFR 11.118: Duties to prospective client

Taken from the Ninth Edition of the MPEP, Revision 07.2015, Last Revised in November 2015

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11.118    Duties to prospective client.

  • (a) A person who discusses with a practitioner the possibility of forming a client-practitioner relationship with respect to a matter is a prospective client.
  • (b) Even when no client-practitioner relationship ensues, a practitioner who has had discussions with the prospective client shall not use or reveal information learned in the consultation, except as § 11.109 would permit with respect to information of a former client.
  • (c) A practitioner subject to paragraph (b) of this section shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the practitioner received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d) of this section. If a practitioner is disqualified from representation under this paragraph, no practitioner in a firm with which that practitioner is associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d) of this section.
  • (d) When the practitioner has received disqualifying information as defined in paragraph (c) of this section, representation is permissible if:
    • (1) Both the affected client and the prospective client have given informed consent, confirmed in writing; or
    • (2) The practitioner who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; and
      • (i) The disqualified practitioner is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and
      • (ii) Written notice is promptly given to the prospective client.
[Added 78 FR 20180, Apr. 3, 2013, effective May 3, 2013]