Lawyers owe limited duties to prospective clients even when there is ultimately no engagement. That is, where the lawyer has learned confidential information from the prospective client during the initial interview the lawyer is prohibited from using that information and must keep it confidential. In addition, the disclosure of confidential information by the prospective client may give rise to a conflict if the prospective client and the lawyer's existing or future client are adverse in substantially related matters. There are two ways to handle this situation: (1) at the outset, the lawyer takes reasonable measures to avoid the disclosure of "disqualifying information" other than that reasonably necessary to determine whether to take on the representation and the disqualified lawyer (i.e., the lawyer that undertook the initial consultation with the prospective client) is properly screened from the affected client's matter or (2) after the conflict arises, the lawyer obtains informed written consent (waiver) from the prospective client and the affected client.
Lawyers can mitigate the risk of a conflict and lessen the need to obtain a conflict waiver by clearly limiting the scope of initial consultation, and warning prospective clients before the consultation not to disclose confidential information.